1. This criminal appeal is preferred against the judgment of conviction dated 06.08.2014 and order of sentence dated 08.08.2017 passed by learned
Principal Sessions Judge, Pakur in Sessions Case No.41 of 2011, whereby the sole appellant was convicted under section 302 of IPC and sentenced to
undergo R.I for life and pay fine of Rs.25,000/-.
2. Learned counsel for the appellant submits that there is vital contradiction in the statement of the witnesses which calls for acquittal of the appellant.
The murder weapon has not been produced before the Court to establish the guilt of this appellant. P.W.-5 and P.W.-7 are highly interested witness
whose testimony could not have been relied upon by the Trial Court. P.W.-2 also cannot be relied as because his statement was not recorded by the
Investigating Officer, during investigation and for the first time, he deposed before the Court. Further, even if his statement is considered, the only
relevant fact which would emerge from his statement is that this appellant was seen sleeping with the deceased. Admittedly, from the statement of
P.W.-2 it transpires that there were several other guests in the house. She further submits that all the persons were heavily drunk as they consumed
liquor during the football match which fact has been substantiated by all the witnesses. She lastly argues that the stones which were seized were very
small stone alleged to be the murder weapon, which cannot cause heavy crushing injury. The circumstances are not complete and there is no material
to link this appellant with the murder of the deceased.
3. Learned counsel for the State submits that this is a case of last seen and admittedly this appellant was last seen with the deceased sleeping in the
veranda of the house of the P.W.-2. P.W.-5 and P.W.-7 have stated that there was enmity between the appellant and the deceased. Thus, there is
only one probability that it is the appellant who had committed the murder of the deceased.
4. Prosecution story as per the fardbeyan of the informant-Joseph Marandi (P.W.-4), who is the chowkidar is that he received an information on
30.09.2010 from P.W.-3 (Motilal Marandi) that the dead body of an unknown person was lying in the field. On receiving such information, he reached
the place of occurrence and saw the dead body of the deceased. The head of the dead body was smashed by the stone and identity of the deceased
could not be ascertained. It was presumed that the occurrence had taken place sometime in the night of 29-30.09.2010.
5. On the basis of the fardbeyan, Pakuria P.S Case No.60 of 2010 was registered under Section 302/34 of IPC was registered.
6. After investigation police submitted chargesheet against the appellant and cognizance was taken for the offence under Section 302 of IPC.
Thereafter the case was committed to the court of Sessions where charge was read over and explained to the appellant to which he pleaded not guilty
and claimed to be tried. Charge was framed against the appellant under Section 302 IPC and the trial proceeded.
7. Altogether nine witnesses have been examined in this case, who are as follows:-
(i) P.W.-1 Sunil Marandi
(ii) P.W.-2 Peter Soren
(iii) P.W.-3 Motilal Marandi
(iv) P.W.-4 Joseph Marandi, informant of this case
(v) P.W.-5 Miru Marandi
(vi) P.W.-6 Nepal Marandi
(vii)P.W.-7 Ful Hansda
(viii) P.W.-8 Dr. Shyam Prasad Bhagat
(xi)P.W.-9 Chandrika Paswan, Investigating Officer of this case
8. The following documentary evidence and material exhibits were exhibited by the prosecution:-
Exhibit-1- Fardbeyan
Exhibit-2 Postmortem report.
Exhibit- 3 Seizure list dated 30.09.2010.
Exhibit- 3/1 Seizure List dated 25.10.2010.
Exhibit-4 Formal F.I.R.
9. The Trial Court after completion of the prosecution evidence examined this appellant under Section 313 of Cr.P.C. and after hearing the parties,
convicted this appellant under sections 302/34 of IPC.
10. PW-8. Dr. Shyam Prasad Bhagat is the Doctor, who conducted the postmortem of the deceased. He found the following:-
“External Antemortem injury:-
Bilateral wrist region peeling of skin 2†x 2â€. A face crushed, left eye lacerated, teeth exposed and broken, brain matter outside the skull, meninges lacerated,
scalp and facial skin extremely lacerated, mandible crushed.
On dissection- Head:- All skull bones and mandible crushed and fractured in multiple pieces, teeth broken, brain matter out of the skull cavity and lacerated,
meninges lacerated. Chest:- lungs pale, heart both chambers empty, liver and kidney pale, spleen normal, stomach empty, large and small intestine filled with
gases and fecal matters, bladder empty, genetaria intact.â€
As per the Doctor, all the injuries are grievous in nature and caused by hard and heavy substance, may be stone. The Doctor opined that the injuries
are sufficient in ordinary course of nature to cause death of a person. He also deposed that it is not possible to sustain the aforesaid injury by falling on
any stone. Thus, from evidence of the Doctor, it is clear that the death is homicidal and will fall within Section 300 of IPC and thus is murder.
11. From the evidence led by the prosecution, we find that there is no eye witness to the said occurrence. This case is based on circumstantial
evidence. The circumstances, which are against this appellant is that he was last seen with the deceased. To prove the factum of last seen, we find
that P.W.-1 (Sunil Marandi) stated that football match was going on in his village and he was also present to watch the match and he saw this
appellant along with two persons of Suljudih village and they were consuming liquor. He further deposed that this appellant and the deceased went to
the house of Peter Murmu as they were known to him. On the next day, a dead body was found in the maize field of Motilal and the body was of the
same person, who he saw with the appellant- Ranjan. On the next day, Ranjan was not found in the house of Peter Murmu. In cross-examination, he
stated that he is deposing before this Court for the first time.
P.W.-3 also stated that a football match was going on in the Village where this appellant and Prem Lal were consuming liquor. On the next day, he
saw the dead body of Prem Lal in his field. Ranjan and Prem Lal stayed that in the house of Peter. The face of the deceased was heavily cursed by
stone and Ranjan was not found thereafter.
P.W.-5 also stated that the appellant and the deceased on their own respective bicycle had gone to watch the football match, but the deceased did not
return. On the next day, in the evening they came to known that the deceased was murdered.
P.W.-6 also stated that both of the appellant and deceased were watching football match and thereafter they were consuming liquor on the western
side of the football ground. He thereafter left. He stated that he did not see the appellant and the deceased in the house of Pitter. Thereafter, he could
come to know about the death of the deceased, but he is not aware as to who has committed the murder.
P.W.-7 is mother of the deceased. She stated that the deceased had gone with this appellant to watch football match.
Another important witness is P.W.-2, who is Peter Soren in whose house it is stated that the appellant and the deceased stayed at night. He stated
that the football match was going on in his village. In his house, there were several guests. The appellant also came with another person whom he
does not know. They were served with food and they slept in the veranda of the house. In the morning, he saw that one person was not there.
Thereafter said that he could not find both of them and they were heavily drunk. On the next day, he came to know that one person was murdered
and, when he went to see the dead body, he saw that the person who came with this appellant was the person who has been murdered and his face
was badly smashed.
12. From the aforesaid evidence, we find that the prosecution has been able to prove that this appellant and the deceased left the house in their bicycle
to see the football match. It is also proved that the appellant and the deceased saw the football match together and they were heavily drunk. It is also
proved by the prosecution that at the night they went to the house of P.W.-2 and took dinner and slept in the veranda. Thus, the prosecution has been
able to prove that both the appellant and deceased were together.
13. There is nothing in the evidence to suggest as to what happened after they went to sleep. From the evidence of P.W.-2, we find that he stated that
on the fateful day there were several persons/ guests in his house, except the appellant and the deceased. The dead body was found in the maize field
of P.W.-3, whose face was smashed with stone. There is no evidence to suggest that it is this appellant who had taken the deceased to
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the maize field of P.W.-3 and smashed his face with stone. Save and accept the statement of mother of the deceased there is nothing to suggest that
there was enmity between the appellant and the deceased. P.W.-7 stated that the deceased and the appellant used to quarrel with each other often
and just because the appellant has taken the deceased along with him, the appellant has committed the murder.
14. P.W.-6 and P.W.-7 have not stated that as what was the genesis of quarrel between the appellant and the deceased. If the enmity between the
appellant and the deceased was to such an extent that there was apprehension that the appellant could have murdered the deceased, then it creates
doubt in our mind as to why the deceased would willfully accompany the appellant to see the football match. Thus, the motive as put forth by the
prosecution that there was enmity between the appellant and the deceased, is not substantiated by any evidence.
15. P.W.-2 in whose house the appellant and the deceased stayed at night clearly stated that there were several other persons in their house. It is hard
to believe that the appellant will commit the murder or will take the deceased along with him to the field and thereafter smash his head, but the same
will not be witnessed or sensed by any one nor there would be any scuffle between the appellant and the deceased.
16. As per the post-mortem report and the witness, we find that the head of the deceased was heavily smashed by stone. The prosecution has seized
stone which as per the prosecution is the murder weapon. The seizure list of the stones is marked as Exhibit-3. As per the said Exhibit-3, the stones
are very small, as in the seizure list it has been mentioned two small stones were recovered with blood stain. Admittedly, the stones were not sent to
the Forensic Science Laboratory to ascertain as to whether the stains are of human blood or not. Further, small stones cannot cause the smash injury
on the person in the manner as mentioned in the post-mortem report, as it has been mentioned in the post-mortem report that the face has been badly
crushed with heavy substance. The seizure list does not reflect that the stones which were seized are heavy rather, as mentioned above they are small
stones.
17. From what has been gathered above from the evidence, we find that prosecution has not been able to prove the motive of the appellant to commit
the murder. Further the small stone cannot be the murder weapon. Moreover, there were many persons in the house when the appellant and the
deceased stayed for the night, but none got any sense. All these materials create a reasonable doubt as to whether actually the appellant had
committed the murder or not. We are of the opinion that there are genuine and reasonable doubts about involvement of this appellant in the crime.
18. Considering the aforesaid, we are inclined the allow this criminal appeal. Accordingly, the instant criminal appeal stand allowed by acquitting the
appellant by giving benefit of doubt.
19. The judgment of conviction dated 06.8.2014 and order of sentence dated 08.08.2014 passed in Sessions Case No.41 of 2011 by the learned
Principal Sessions Judge, Pakur is set aside.
20. The appellant who is in custody be released forthwith if not required in any other case.
21. Interlocutory application(s), if any, also stands disposed of.
22. Let the Trial Court record be transmitted to the Court concerned along with a copy of this judgment.
