N.N. Tiwari, J.@mdashThis appeal is against the judgment of conviction and order of sentence dated 22.3.1994 passed by the 2nd Additional
Sessions Judge, Gumla in S.T. No. 184/1988, whereby the appellants have been found guilty for the offence under Sections 302/34, IPC and they
have been sentenced to undergo RI for life.
2. Briefly stated the prosecution case is that on 22.4.1987 Jitia Oraon alongwith Kura Oraon (deceased), Karamdeo Oraon and Shambhu Munda
were ploughing paddy field of Kura Oraon. At about 4.30 p.m. Subash @ Tehna Oraon, Soma Oraon, Ghura Oraon, Mangra Oraon, Khoras
Lakra, Lohra Oraon, Kario Oraon and Suka Orain arrived there variously armed with weapons. Subash @ Tehna Oraon and Ghura Oraon were
holding Bhujali, Khoras Lakra was armed with Balua, Soma Oraon and Mangra Oraon with Tangi and Kario Orain and Suka Orain were having
stones in their hands. All the said persons surrounded Kura Oraon and Ors. Subash @ Tehna Oraon abused Kura Oraon and forbade him from
ploughing the land and then gave Bhujali blow on his temple. Kura fell down. Subash hit him on the stomach and the others also thereafter joined
them and assaulted Kura with the weapons held by them. They also attempted to assault the informant and his companions. It was alleged that the
land in question was in dispute and the matter was in the Court in which the judgment has been earlier passed in favour of Kura Oraon.
3. The police after completing investigation submitted charge sheet against all the eight accused persons named in the FIR including the appellants
under Sections 147, 148, 149 and 302, IPC.
4. In order to bring home the charges, the prosecution has in all examined nine witnesses. PW-1 Jitwa Oraon is the informant and he is the nephew
of the deceased. In paragraph 2 of his deposition this witness has stated that Subhas cut the neck of Kura Oraon with Bhujali and that he had given
two Bhujali blows. In paragraph 9 this witness has stated that as soon as Subhas hurled Bhujali, he fled away. His other companions had already
escaped. PW 2 Basudeo Oraon is the son of the deceased. He stated that he was informed about the incidence at Gumla. When he received the
information, he got the paper prepared by his lawyer, Bhubneshwar Babu, signed the same and handed over to the Dy. S.P. PW 3 Shambhu
Munda is the friend of the deceased''s son Karamdeo. He claimed to be an eyewitness of the occurrence. He has stated that Tehna assaulted Kura
with Bhujali on his temple. Other seven persons also assaulted him. They were not known to him. In his cross-examination this witness has stated
that at first Tehna had come alone. He had not named other persons. He corroborated fleeing away of Karamdeo towards east and Jitwahan
towards west. PW 4 Karamdeo Oraon in the son of the deceased. He claimed that he saw the alleged occurrence from 80-90 yards. He admitted
that Shambhu Munda (PW 3) is his friend and on that day he had gone to his village. He alleged that there was land dispute which led to the
occurrence. He also stated that at the time of occurrence he did not raise alarm. He went to Gumla along with Sambhu and Jitwahan but did not
tell about the occurrence to anybody. In paragraph 8 be has stated that Soma and Ghura were not present in the village on that day. PW 5
Goshnar Kujur has been declared hostile. PW 6 Bishram Kujur has been tendered and not supported the prosecution case. PW 7 Lalan Bhagat is
the witness to the inquest report and he proved Ext. 1/3. He saw a cut injury on the neck of the deceased. PW 8 Ram Pukar Singh is the IO of this
case. He proved the fardbeyan (Ext. 2). According to him place of occurrence is about 200 yards from the village and that the dead body of the
deceased was found on a Parti field (barren land). He has stated that the place of occurrence was Plot No. 591 named Pindardohar. He further
stated that on search, no arm was recovered from the houses of the appellants. PW 9 Dr. J.P. Sanga conducted postmortem examination on the
dead body of Kura Oraon. He found altogether four incised wounds and three bruises. In his opinion, the injury Nos. 3 and 4 were grievous in
nature and rest were simple in nature. According to him time elapsed since death was nearly 2 days. Postmortem examination report is Ext. 5. In
his opinion, injury Nos. 1-4 could be caused by weapon like Bhujali and others injuries by sticks.
5. The defence also examined five witnesses in order to support their defence, DW 1 Ghura Oraon is the accused appellant No. 2. He stated that
he was in Defence Service for about 20 years and he is an Army pensioner. On 22.4.1987 (the date of occurrence) he had gone to Ranchi to
draw his pension as the same is given after comparing the photograph of the pensioner from the pension book. Ext. C is the Pension book proved
by DW 5 Arjun Pandey which shows withdrawal of pension from Ranchi S.B.I. on 22.4.1987. DW 2 Kaleshwar Parasad Sahu is a contractor
who had taken contract of digging four wells. He stated that the appellant No. 3 Khoras Lakra was working at his work site on the date of alleged
occurrence from 8 a.m. to 5 p.m. According to him the place of occurrence is about 1 KM away from that place. DW 3 is Khoras Lakra
accused-appellant No. 3. He stated that he wan working at the site of the DW 2 on the date of occurrence from 8 a.m. to 5 p.m. and on that date
he was working inside the well. DW 4 is Ames Panna. He is a clerk of Luthran High School, Gumla. He has proved that the accused Soma Oraon
was present in his school. He proved the School Attendance register (Ext. A). DW 5 Arjun Pandey has proved the signature of the Treasury
Officer, Rajkarnal Sahay, on the pension book of Ghura Oraon.
6. Mr. A.K. Chaturvedi, learned counsel appearing on behalf of the appellants strenuously argued that the conviction and sentence of the
appellants are not based on any cogent, reliable and admissible evidence. The evidences of the material witnesses are full of vital contradictions.
The medical evidence has not supported the ocular evidence. There has been no proper examination of the appellants u/s 313, Cr PC and the
circumstances relied upon to hold them guilty were not explained to them and that the conviction and sentence based on the same are wholly
unsustainable, unsound and the same are liable to be set aside. Learned counsel submitted that the eye-witness has not named the appellant Nos.
2, 3 and 4. The mariner of assault as spelt out in the FIR has not been supported by the PWs and there are several contradictions regarding the
manner of assault and injuries on the person of the deceased. PW 1 said that there were two injuries, one on left temple and another on stomach
while PW 3 has stated that Tehna had assaulted the deceased only on left temple with Bhujali. In the inquest report only five injuries are mentioned
while seven injuries are shown in the postmortem report. According to the learned counsel, there is no evidence of any independent witness in this
case. PW 5 and PW 7 were the independent witnesses who have not supported the prosecution case. PW 1 has stated about the injuries on the
neck, contrary to the prosecution story. PW 2 is the son of the deceased who is a hearsay witness and he came to know about the incidence at
Gumla. PW 3 claimed to be an eye-witness is the friend of Karamdeo, the another son of the deceased. There is admitted land dispute between
the parties. According to the learned counsel there is weighty evidence to prove the absence of the appellant Ghura Oraon on the date of the
alleged occurrence. The entry dated 22.4.1987 in the pension book (Ext. C) goes to prove that on that date the appellant No. 2 had drawn his
pension from the Bank at Ranchi which is far away from the place of occurrence. The Court below has erroneously rejected his plea of alibi
without considering the said evidence on record. The learned counsel urged that in the case of such doubts, the benefit should have been given to
the appellants and not to the prosecution. ''
7. Mr. R.C.P. Sah, learned counsel appearing on behalf of the informant, on the other hand, submitted that PWs 1, 2 and 3 have supported the
prosecution case and their evidences are sufficient to prove the charges against the appellants. The Court below has rightly found the appellants
guilty arid there is no infirmity in the impugned judgment of the Court below.
8. Mr. M. Patra, learned APP, supported the impugned conviction and sentence of the appellants and submitted that though there are some
contradictions in the versions of the prosecution witnesses, yet the medical evidence supports the injuries on the person of the deceased and that
there is sufficient material on record to establish the prosecution case and the learned Court below has rightly convicted and sentenced the
appellants.
9. Having heard the learned counsel for the parties and scanned and considered the evidence and material on record, we find that there is absence
of convincing and strong evidences to substantiate the prosecution case. Virtually there is no eye-witness in this case. PW 1 is said to be present at
the place of occurrence. But he stated in paragraph 9 of his deposition that seeing Subhash hurling Bhujali, he fled away and that his other
companions had already departed from the place of occurrence. In view of this statement, the version of witnessing the occurrence by PW 1 and
PW 3 becomes doubtful, in view of his own contradictory statements, testimony of PW 1 becomes unreliable and untrustworthy, The another
alleged eye-witness PW 3 has stated in paragraph 8 of his deposition that Karamdeo and Jitwahan had fled away from the place of occurrence,
one eastward and another towards west. This witness had only named Tehna before the police and no other. Apart from the above we find that
there is no proper examination of the appellants u/s 313, Cr PC. The circumstances which were relied upon to hold them guilty have not been
explained to them and no opportunity has been given to them to explain the same. The questions for recording the statement of the accused-
appellants have been superficially framed. It is now well established that the circumstances which were not put to the accused in their examination
u/s 313, Cr PC can not be used against them 39 as to rest their conviction. Reference may be made to the decisions of the Supreme Court
reported in Shamu Balu Chaugule Vs. State of Maharashtra, Harijan Magha Jesha Vs. State of Gujarat, and 2002 (8) SC 672 Nirmal Pasi and
Anr. v. State of Bihar. On close scrutiny of the evidence, we find that the witnesses PW 2 and PW 4 are the sons of the deceased and PW 3 is the
friend of PW 4. Two independent witnesses (PW 5 and PW 6) brought forward by the prosecution, have not supported the prosecution case. PW
5 has been declared hostile and PW 6 has been tendered. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, the Apex Court has
held that the close relatives of the victim have tendency to exaggerate or add the facts and their evidences must be examined with great care and
caution. It has been further held that in view of the close relationship and affection, any person in the position of witness even unconsciously carries
psychology of hatred and tendency of revenge against the accused persons. Eight persons were charged for the said offences. Out of them four
have been acquitted. Though there is no specific material on record, the appellants have been convicted taking into consideration the thin line of
difference of circumstances. The learned Court below has also not properly taken into consideration the defence witnesses and erroneously
rejected the plea of alibi of the appellant Ghura Oraon. On review of all the facts, evidences and circumstances, we are constrained to hold that the
prosecution could not prove the charges against the appellants beyond all reasonable doubts and in the circumstances of the case the appellants are
entitled to get benefit of doubt.
10. In the result, we allow this appeal and set aside the appellants conviction and sentence. Since the appellants are on bail, they are discharged
from the liability of their bail-bonds furnished in the Court below.