Judgment passed by the learned trial court was set aside because of various contradictions in evidence – Jharkhand high court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo. 093(R) Against the judgement and order of conviction and sentence dated 22.12.1992 passed by Shri S. M. M. Alam 1st Additional Sessions Judge Chaibasa in Sessions Trial No. 3889) 1. Haricharan Boipoi 2. Man Singh Boipoi 3. Bishnu Boipoi 4. Mathwa Boipoi 5. Sinu Boipoi 6. Chakro Boipoi 7. Tuti Boipoi 8. Dongal Boipoi 9. Ram Rai Boipoi The State of Bihar… Appellants CORAM: HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellants For the State C.A.V. 24.01.2022 R. Mukhopadhyay J. Heard Mr. Saurabh Shekhar learned Amicus curiae Mr. Saurabh Shekhar Amicus curiae Mr. Saket Kumar A.P.P. Pronounced on 31.01.2022 appearing on behalf of the appellants and Mr. Saket Kumar learned A.P.P. for the State. The appeal was initially filed by nine appellants out of which appellant nos. 1 4 5 7 and 9 have died and therefore the appeal has abated so far as these appellants are concerned which would appear from the order dated 09.04.2019. This appeal is therefore restricted to the appellant nos. 2 3 6 and 8. This appeal is directed against the judgement and order of conviction and sentence dated 22.12.1992 passed by Shri S. M. M. Alam learned 1st Additional Sessions Judge Chaibasa in Sessions Trial No. 383 of 1989 whereby and whereunder the appellants have been convicted for the offences punishable under Section 148 of the Indian Penal Code and Sections 302 149 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life under Sections 302 149 of the Indian Penal Code and no separate sentence was passed under Section 148 of the Indian Penal Code. The First Information Report reveals that on 07.10.1988 at around 07:00 am the Munda of Debabir Mauza Bihari Ram Sorin had informed that Pataal Boipai has been murdered. On receiving such information the informant along with Bihari Ram Sorin had come to the house of Pataal Boipai where he saw the dead body of Pataal Boipai lying on the road smeared in blood. The informant had conducted a local enquiry in presence of Shyam Narayan Koda. The wife of Pataal Boipai namely Mukta Kui disclosed that last evening around 06 06:30 p.m Ram Rai Boipai Hari Charan Boipai Mathwa Boipai Man Singh Boipai Dongal Boipai Tuti Boipai Bisnu Boipai Sinu Boipai Chakro Boipai and Pandeya Boipai had come laced with tangi and danda and they dragged out her husband and Ram Rai Boipai assaulted him on his head by a tangi. The other accused persons had assaulted with danda. On account of such assault Pataal Boipai died. The reason for the occurrence as disclosed by the wife of the deceased is existence of a land dispute. Based on the aforesaid allegations Sonua P. S. Case No. 288 was instituted against ten named accused persons under Sections 147 148 149 and 302 of the Indian Penal Code. On conclusion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was numbered as S. T. No. 383 of 1989. Charge was framed against the accused persons under Sections 148 302 149 of the Indian Penal Code which was read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. The prosecution has examined as many as eleven witnesses in support of its case. P.W. 1 Gopal Das has proved the formal First Information Report which has been marked as Exhibit 1. P.W. 2 Mukta Kui is the wife of the deceased. She has deposed that the incident had taken place one year eight months ago in the afternoon between 02:30 3 p.m. She was in her house and her husband was also present. The alias name of her husband is Pradhan. At that point of time Sheo Charan Ram Rai Hari Charan Chakro Sinu Bisnu Tuti Pandeya Dongal Man Singh and Mathwa had entered the house. They were armed with lathi and bows and arrows. She has stated that Sheo Charan had forcibly got opened the door and Ram Rai had taken the tangi kept inside the house and had given a blow on the head of her husband. Her husband sustained injuries and blood started coming out. The accused persons had thereafter dragged her husband to the courtyard and started assaulting him indiscriminately with lathi. She had raised alarm. She has stated that her husband was done to death by the accused persons. She informed the Munda and Manki who had come to the place of occurrence and she had apprised them about the incident. The reason for the occurrence is a land dispute which was existing between her husband and Ram Rai as well as Hari Charan. In cross examination she has stated that the occurrence took place at dusk. On hearing the cry of alarm her neighbours Mangtu Sabu and Daku had come. They have not been made witnesses. She has stated that Manki and Munda had arrived on the next day. The Manki had recorded her statement but she had not put her thumb impression on the same. The statement recorded by the Manki was forwarded by him to the police station. This witness has deposed that the other witnesses were not questioned by the Manki. She had disclosed to the Manki the name of all the accused persons including Sheo Charan and the Manki had written down all the names. She had stated that she had seen the occurrence from near the door. She had seen Ram Rai taking the tangi and assaulting her husband. Ram Rai had indiscriminately assaulted her husband with tangi as a result of which he had become unconscious. The rest of the accused persons had assaulted with lathi. Ram Rai had left the tangi in the courtyard while the accused persons had also left lathies in the courtyard. She has deposed that the tangi was taken away by the police. She does not know as to whether the lathi was given by the Munda to the police or not. According to her the tangi was seized by the police. She has further stated that her husband and Manki Boipoi are brothers. She has denied that about a year back a case of theft was lodged against her husband and his brother in which Sheo Charan who was the up mukhiya had imposed punishment upon them. According to her the land dispute was existing from about a year prior to the date of occurrence. P.W. 3 Manki Boipoi has stated that Pataal Boipoiwas his cousin brother whose alias name was Pradhan. On the date of the incident he was in his house which is nearby to the house of Pataal. The accused persons variously armed with bows arrows and lathis had entered into the house of Pataal. Ram Rai had assaulted Pataal with a tangi and thereafter dragged him to the courtyard where the others had assaulted him with lathi. He has stated that Pataal died on account of the assault. This witness had seen the injuries as well as blood. The Munda was informed who did not come on the same day but on the next day the Munda and the Manki had come. According to him due to a land dispute Pataal was murdered. In cross examination he has stated that his house is situated in the southern side from the house of Pataal. The house of Mangtu Sabu and Daku are nearby. At the time of the incident he was in the courtyard. The house of Pataal is not visible from the house of this witness. When he had reached the house of Pataal on hearing the cry of alarm Pataal was already dead by then. He had seen the accused persons assaulting Pataal. This witness had deposed that he had gone to the house of the Munda at night and had disclosed the name of the accused persons. The Munda had written down his statement and this witness had also given his thumb impression. He had also informed the Manki about the incident and had also disclosed the name of the accused persons. He had taken down the statement and this witness had put his thumb impression on it. On the next day the Manki and Munda had come. He had deposed that the Manki had taken the statement of the Munda and the Munda had put his thumb impression upon it. The statement of this witness and of the Munda were handed over to the Investigating Officer who had torn those statements. The police had not seized the dead body but had seized the lathi and tangi for which documents were prepared and he has put his thumb impression upon them. He has also stated that a land dispute was going on for the last one year. Due to theft of fish a complaint was made before the up mukhiya against Pataal and this witness and Pataal were imposed punishment by the up mukhiya by calling them “Machali Chor” and parading them in the village. The dispute according to him was not because of any land but because of illegally catching fish. P.W. 4 Md. Mojeeb is a formal witness and he has proved the written report of P.W. 7 which has been marked as Exhibit 2. 10. P.W. 5 Shankar Boipai has been tendered by the prosecution. 11. P.W. 6 Bihari Ram Soren is the Munda of Debabir Mauza. It was about one year 8 10 months back when two persons came and disclosed that Pataal @ Pradhan was being assaulted by some persons. He has stated that the name of the aggressors were disclosed as Damu Tuti and he does not remember the name of the other assailants. The Manki was informed about the incident on the next day and both had gone to the place of occurrence. They had seen the dead body of Pataal which had marks of injury. The Manki had reported about the incident to the police and this witness had signed on it. The police had come and had seized blood stained earth. He had signed on the seizure list which has been proved and marked as Exhibit 3 2. In cross examination he has stated that he had not taken the statements of Manki and Shankar the persons who had informed him about the incident. He has also stated that he had not witnessed the assault. This witness is a hearsay witness. 12. P.W. 7 Guna Ram Manki is the Manki of Debabir Mauza. On 07.10.1988 at 06:00 am Bihari Ram Munda had come to his house and disclosed that someone has committed the murder of Pataal Boipoi. He had gone to Debabir with Mathwa Sai and Bihari Ram. Pataal was seen lying dead in the courtyard. He had made an inquiry and Mukta Kui had disclosed that Ram Rai Dongal Mathwa Hari Charan Bisnu and some other persons whose names he does not remember had dragged out her husband and assaulted him. She had stated that due to a land dispute the incident had occurred. This witness has proved the report which had been given to the police and which has been marked as Exhibit 2. He has stated that Bihari and Shyam Narayan had signed on the report. He had also signed on the inquest report which has been marked as Exhibit 3. He has also proved his signature in the seizure list of the seized blood stained earth and which has been marked as Exhibit 3 1. In his cross examination he has stated that Bihari Ram had informed him in writing that somebody had committed the murder of Pataal but he had kept the said paper with him and had not handed it over to the police. He had written down the statement of Mukta Kui in a paper but she had not given her thumb impression on the same. He had handed over the statement of Mukta Kui to the police but he had not received any acknowledgement regarding the same. This witness has stated that he does not have any personal knowledge as to how Pataal had died. This witness is also a hearsay witness. 13. P.W. 8 Madey Kui has stated that about one year ten months back in the evening she had gone to fetch water when she had seen Sheo Charan Hari Charan Ram Rai Dongal Pandeya Sinu Chakro Tuti and some other persons whose names she does not remember armed with lathi. They had gone to Sarjam Mahato’s place. She had returned back to her house after fetching water. She had seen Hari Charan Sheo Charan Ram Rai Chakro Dongal Pandeya Tuti Sinu and others from a distance and they were standing near her house. When she had returned home she had seen Pataal dead. Pataal is her uncle in relation and they share a common house and a common courtyard. In her cross examination she has stated that she had not witnessed the assault. She had gone to fetch water from the well which is at quite a distance from her house. Her house is not visible from the well. She had also seen the accused parsons while returning home. She had disclosed the name of six persons to the police. She has stated that her husband is the uncle of the deceased. There was a land dispute between her husband the deceased and the accused persons. In fact according to her they are not even on talking terms with the accused. This witness is a hearsay witness. 14. P.W. 9 Patar Boipoi has been tendered by the prosecution. 15. P.W. 10 Kamal Kishore is the Investigating Officer of the case. On 07.10.1988 he was posted as Officer In charge of Sonua P.S. and on that day the informant Guna Ram Manki had given a written report which was entered in the station diary. When he returned from the court he had drawn up a formal FIR based on the written report which is in his hand writing and which has been marked as Exhibit 1. He had taken over the investigation of the case and thereafter had inspected the place of occurrence and had also recorded the statement of Mukta Kui. The place of occurrence is the house and courtyard of Pataal @ Pradhan Boipoi. The house is built up of mud and tiles and is divided into half by a wall. There is a kitchen and a room to keep grains. Adjacent to this room in the north is the house of the nephew of the deceased. In front of the room where the occurrence had taken place is a courtyard and a room where cattle are kept. In the south side of the courtyard the house of Binay Koda is situated and in the east of the courtyard is the house of Pao Boipoi while in the west the house of Manki Boipoi is situated. The dead body was found at a distance of 15 yards from the house. This witness had seized the blood stained earth and had prepared the seizure list which bears his hand writing and signature and which has been proved and marked as Exhibit 5. He had recorded the restatement of the informant and prepared the inquest report which has been proved and marked as Exhibit 6. He had recorded the statement of the witnesses arrested the accused obtained the post mortem report and sent the blood stained earth for examination to the Forensic Science Laboratory. He has proved the forwarding letter which has been marked as Exhibit 7. On account of his transfer the investigation was handed over to the Assistant Sub Inspector of Police Silvanus Topno. In his cross examination this witness has stated that he had not received the report from the Forensic Science Laboratory. He had not prepared the map of the place of occurrence. In the house where the incident had taken place he had not found any signs of assault and tussle. He had not taken the statement of Vikram and Pao. The houses of Mathwa Sinu and Daku are situated near the place of occurrence. He had not seized any tangi from the place of occurrence and no one had produced the tangi and lathi before him. The informant along with his written report had not submitted the statement of the wife of the deceased. This witness has deposed that the Munda of the village had also not submitted any application to the police Station. In the formal FIR prepared by him the name of Sheo Charan Boipoi did not figure. The house of the accused persons were searched but no incriminating articles were recovered. 16. P. W. 11 Udey Nath Pradhan has proved the post mortem report which has been marked as Exhibit 8. 17. The accused persons were examined under Section 313 CrPC in which they have simply denied to have been involved in the It has been submitted by Mr. Saurabh Shekhar learned Amicus appearing on behalf of the appellants that the case of the prosecution suffers from contradictions and incongruities. It has been submitted that Ram Rai Boipoi has been attributed to have committed the murder of Pataal Boipoi. Learned counsel submits that so far as the other accused persons are concerned the allegations are general and omnibus in nature and in fact the evidence of the witnesses do not support the participation of the said accused persons in the murder. It has further been submitted that Sheo Charan had similar allegations against him but the learned trial court has committed an error of law by convicting the appellants while acquitting Sheo Charan. 19. Mr. Saurabh Shekhar while referring to the post mortem report Exhibit 8) has stated that the cause of death was opined to be on account of internal haemorrhage and shock caused by spleenic rupture which he has sought to contradict by referring to Modi’s Medical Jurisprudence. He submits that the manner of assault as described by P.W. 2 seems to have been initiated by Ram Rai Boipoi who had assaulted the deceased on his head with a tangi followed by the assault committed with lathi by the other accused persons after dragging the deceased to the courtyard. Learned counsel adds that apart from rupture of the spleen only one cut injury was found on the head and some bruises which is contrary to the manner of assault as depicted by P.W. 2. It has been stated that no ribs were broken. According to the learned counsel for the appellant the doctor who conducted the post mortem was required to be examined as it was only he who could have elaborated clarified his opinion and his non examination has greatly caused prejudice to the defence. Mr. Saurabh Shekhar adds that so far as the ocular evidence is concerned there are no independent witnesses and the appellants have been convicted based on the statements of P.W. 2 P.W. 3 and P.W. 8 who all are interested witnesses. Some of the persons whose names have been mentioned by the witnesses and who could have thrown some light on the incident have not been examined. Mr. Shekhar submits that even the second Investigating Officer was not examined. In view of the major contradictions and discrepancies pointed out learned counsel has prayed for setting aside the judgment and order of conviction and sentence. 20. Mr. Saket Kumar learned A.P.P. for the State has submitted that the witnesses are consistent and have named all the appellants of having participated in the assault. He has submitted that the medical evidence supports the ocular evidence. Learned A.P.P. adds that so far as Sheo Charan is concerned he was not named in the First Information Report and his name was subsequently disclosed by some of the witnesses and his case being on a different footing no advantage can be extended to the appellants on account of the acquittal of Sheo 21. We have considered the rival submissions and have also perused the lower court records. 22. Learned counsel has raised the question of parity since according to him the case of appellants is similar to Sheo Charan who has been acquitted and hence the appellants be also treated at par with Sheo Charan. We must therefore gather the reasons assigned by the learned trial court while acquitting Sheo Charan. 23. The learned trial court has considered the evidence of P.W. 2 who had stated that she had named all the accused persons including that of Sheo Charan in her statement recorded by the Manki but in the written report the name of Sheo Charan was conspicuous by its absence. Consideration has been made to the evidence of P.W. 3 who has admitted of he and the deceased being at the receiving end of the punishment imposed by Sheo Charan who was the up mukhiya for stealing fish. Although P.W. 2 has shown ignorance about such theft but the learned trial court has come to a conclusion that both P.W. 2 and P.W. 3 have a grudge against Sheo Charan. The learned trial court has also considered the fact that the evidence of P.W. 7 does not indicate that the name of Sheo Charan was disclosed to him by P.W. 2. It had accepted the contention of the defence that the name of Sheo Charan was added later on due to previous enmity and accordingly he was acquitted. If we consider the case of the appellants qua Sheo Charan we do not detect any markable difference save and except the fact that Sheo Charan was not named in the First Information Report while the appellants were. Charge sheet was submitted against Sheo Charan based on the statement of the witnesses recorded under Section 161 CrPC. The First Information report is not an encyclopaedia which should include even the minutest of details. It is a precursor to the criminal law being set in motion. In this case the peculiarity arises and the reason as to why the learned trial court convicted the appellants while acquitting Sheo Charan is of its perhaps being oblivious to the fact that the wife of the deceased i.e. P.W. 2 is not the first informant rather the information had travelled to P.W. 7 who had then submitted the written report. There is no development made by P.W. 2 save and except the fact that it was Sheo Charan who had forcibly opened the door. The informant had taken the name of some of the accused as disclosed to him by P.W. 2 but he seems to have forgotten the name of other accused. P.W. 2 has shown ignorance about any enmity between Sheo Charan and her husband though enmity has been highlighted by P.W. 3 with respect to stealing of fish. However as per P.W. 2 and P.W. 8 there was a land dispute between the appellants and the deceased. The learned trial court while ignoring the previous enmity existing between the deceased and the appellants had stressed upon the enmity between the deceased and Sheo Charan. We therefore conclude that the case of the appellants is similar to that of Sheo Charan. 25. When we consider the manner of occurrence P.W. 2 and P.W. 3 seems to be the only eye witnesses to the occurrence. P.W. 2 in her evidence has stated that on hearing the cry of alarm Mangtu Sabu and Daku whose houses are situated nearby had come. There is no mention of the presence of P.W. 3 or P.W. 8. In fact Mangtu Sabu and Daku were not examined by the prosecution. The evidence of P.W. 2 with respect to the above therefore remains uncorroborated. P.W. 3 in his cross examination has stated that at the time of occurrence he was in his courtyard and the house of the deceased is not visible from his house. He subsequently states that when he had gone to the house of Pataal he was already dead by that time. He however claims to have seen the assault. His eye witness account is therefore not free from doubt as he has given contradictory versions as in his chief he has taken a stance that he had seen the occurrence while in his cross examination it seems that he had come to the place of occurrence on hearing the cry of alarm and had seen Pataal dead. His subsequent statement of seeing the assault appears to be not believable. The evidence of this witness does not indicate the presence of Mangtu Sabu and Daku at the place of occurrence as stated by P.W. 2. P.W. 8 admittedly is not an eye witness and she has only stated about seeing the appellants with lathi while she was going to fetch water and while returning she had also seen them. Therefore the only version regarding the presence of the appellants seems to be that of P.W. 2. If we once again consider the evidence of P.W. 2 specific allegation of assault with tangi has been attributed to Ram Rai Boipoi. Subsequent to the assault the accused persons had dragged the deceased to the courtyard and had indiscriminately assaulted him with lathi. At this juncture it would be profitable to refer to the post mortem report. The external injuries suffered by the deceased are two bruises and a cut injury over the back of head. The injury over the head can be attributed to Ram Rai Boipoi who had given a tangi blow on the head of the deceased. On dissection the spleen was found ruptured and the cause of death was opined to be internal haemorrhage and shock due to splenic rupture. This injury and the cause of it could only have been elaborately stated by the doctor but unfortunately the doctor could not be examined. 27. Mr. Saurabh Shekhar learned amicus curiae has extensively referred to Modi’s Medical Jurisprudence and it has been observed therein that the following reasons emerge regarding rupture of spleen. “Spleen. On account of its situation rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force such as the passing of a carriage or motor car over the body or by a crush in a railway accident or by a fall from a very great height in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. “ The post mortem report does not indicate that any ribs have been broken which could have led to a ruptured spleen. Surprising though it is if we consider the version of P.W. 2 that indiscriminate lathi blows had rained upon her husband caused by the appellants. Learned counsel for the appellants is therefore correct in submitting that the non examination of the doctor has caused prejudiced to the defence. In fact the post mortem report seems to have been proved by a person who had no connection with the hospital. He has clearly stated about his absence when the post mortem report was being prepared. It appears that save and except the blood stained earth no incriminating articles were seized by the police. P.W. 3 has stated about the seizure of lathi and tangi by the police but P.W. 10 has categorically stated that he had not seized the tangi and no one had handed over the tangi and lathi to him. It also appears that not a single independent witness was examined by the prosecution though several persons appear to have come to the place of occurrence on hearing the cries of alarm. The second Investigating Officer was also not examined. P.W. 2 P.W. 3 and P.W. 8 are related to the deceased and considering the land dispute which was in existence between the deceased and appellants and the various contradictions emanating from their evidence as stated hereinabove their versions cannot at all be said to be credible and trustworthy. The learned trial court had not properly appreciated the evidence of the witnesses and the contradictions arising out of such evidence and therefore the conclusion arrived at by the learned trial court becomes unsustainable in the eye of law. 30. Accordingly in view of the discussions made hereinabove we set aside the judgment and order of conviction and sentence dated 13 22.12.1992 passed by Shri S. M. M. Alam 1st Additional Sessions Judge Chaibasa in Sessions Trial No. 383 of 1989 whereby and whereunder the appellants have been convicted for the offences punishable under Sections 148 of the Indian Penal Code and Sections 302 149 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life under Sections 302 149 of the Indian Penal Code. Since the appellants are on bail they are discharged from the 31. This appeal is allowed. liability of their bail bonds. (Sanjay Prasad J.) Jharkhand High Court Ranchi Dated the 31.01.2022 NAFR Umesh 

Summary: Judgment passed by the learned trial court was set aside because of various contradictions in evidence – Jharkhand high court A criminal appeal was filed against the judgment and order of conviction passed by the sessions judge on the ground that there are various contradictions in the order and it should be set aside. The appeal was heard and allowed by a two-judge bench of HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY and  HON’BLE MR. JUSTICE SANJAY PRASAD in the case of Haricharan Boipoi and Ors. Versus the state of  Bihar (now Jharkhand ) in Cr. Appeal (DB) No. 04 of 1993(R) The appeal was filed by nine appellants against the judgment and order of conviction passed by additional sessions judge in Sessions Trial No. 383 of 1989  where the appellants were convicted for offenses punishable under Section 148 of the Indian Penal Code and Sections 302/149 of the Indian Penal Code and have been sentenced to imprisonment for life. The learned counsel appearing on behalf of the appellants submits that the case has various contradictions and incongruities and it is further submitted that the allegations are general and the evidence of witnesses does not support the participation of the accused person in the murder and the sheo charan(another accused ) had similar allegations as other petitioners but the trial court has committed an error in law by convicting the appellants while acquitting Sheo Charan. The counsel further presents some disruptions and contradictions in the medical examination and the doctor who conducted the inquiry was not examined and his non-examination has greatly caused prejudice to the defense. There was no independent witness in the case all witnesses were interested parties in the case and because of the above contradictions and discrepancies pointed out, learned counsel prayed for setting aside the judgment and order of conviction and sentence. The learned counsel appearing for the state submitted that all witnesses are consistent and have named all appellants who were included in the assault and the medical evidence also supports ocular evidence. the shoe charan was not included in the FIR d his name was subsequently disclosed by some of the witnesses and his case being on a different footing no advantage can be extended to the appellants on account of the acquittal of Sheo Charan. and the counsel demands for the dismissal of the criminal appeal. The Hon’ble court hearing the rival submissions by both parties finds that because of various contradictions arising out of evidence it cannot be said to be credible and trustworthy and the learned trial court has not appreciated the evidence of the witnesses and the contradictions arising out of such evidence hence the judgment passed by the trial court cannot be sustainable in the eyes of law. Accordingly, the judgment and order of conviction was set aside and the appeal was allowed Click here to read the Judgment