1. By the impugned judgment dated 12.3.2003 in SC No. 90 of 2001 passed by the 1st Additional Sessions Judge. Dumka, the sole appellant has
been convicted for the offence u/s 302 of the Indian Penal Code and has been sentenced to undergo R.I. for life for committing murder of Somesh
Chandar Dehri, husband of the informant, Gendi Devi.
2. The facts in brief are that an FIR was registered on the basis of Jardbeyan of PW 9, Gendi Devi on 18.6.2000. The informant in the said
fardbeyan alleged that while she was returning from ''Haat'', on 17.6.2000 along with her husband and mother and at about 8:00 P.M. when they
reached near village Pipra, four persons namely Devendra Dehri, Laxman Dehri, Kisto Dehri and Hariya Dehri appeared and caught hold of her
husband and then appellant Debendra Dehri assaulted her husband by means of a tangi on his head due to which her husband fell down on the
ground and then he cut the neck of her husband by means of tangi due to which her husband died at the spot. The motive behind the occurrence
was alleged to be the land dispute between the parties.
3. The police after completion of investigation submitted charge sheet against four accused persons and thereafter all the accused persons named in
the FIR were put on trial. The accused persons denied the charges levelled against them.
4. On behalf of the prosecution altogether 10 prosecution witnesses were examined to establish the charges. The Investigating Officer was not
examined. Even according to the prosecution, the informant is the only eyewitness to the occurrence. The appellant has been convicted and
sentenced by the Trial Court relying on the statement of the aforesaid eyewitness PW 9, the informant.
5. We find that out of the 10 witnesses examined by the prosecution, PW 1 Sawitri Devi is the mother of the informant, PW 2 Babulal Kisku, and
PW 3 Dinesh Hembram have been declared hostile, PW 4 is Dr. Ramesh Prasad Verma, held postmortem examination on the body of the
deceased, PW 5 Dhani Dehri, PW 6 Shambhu Dehri, PW 7 Madan Dehri and PW 8 Budhan Dehri are the witnesses who came to know about
the occurrence from the informant PW 9, PW 10 is a formal witness, who proved the signature of Officer-in-Charge on Ext. 3. PW 9 is the
informant and widow of the deceased. Sub-para it appears that the whole case of the prosecution hinges upon the solitary evidence of the
eyewitness i.e., the Informant (PW 9).
6. Mr. Laljee Sahay, learned Counsel appearing for the appellant submitted that the conviction and sentence passed by the Trial Court against the
appellant is not sustainable in the law as well as on facts for the reasons:-that on the same set of evidence the Trial Court has acquitted the other
three accused persons against whom the informant had specifically alleged that they also took active part in the commission of assault on the
deceased, but the Trial Court acquitted them holding that there was lack of evidence against them and therefore, the Trial Court has adopted two
standards in weighing the evidence of prosecution evidence. Secondly that the statement of solitary eye witness is not at all consistent and her
evidence is contrary to the evidence of the Doctor, PW 4, and thirdly that the alleged time of occurrence was about 8:00 P.M. even according to
the statement of the informant and according to the statement of her mother there was no source of light at the place of occurrence and therefore, it
was not possible for the informant or any body to see as to who assaulted the deceased and with which weapon. Accordingly, it is submitted that
in such a situation on the evidence of PW 9 does not inspire confidence therefore, relying wholly on her testimony. The conviction of the appellant
cannot be sustained.
7. In order to appreciate the submission of the learned Counsel for the appellant we have ourselves scrutinized the evidence of the prosecution
witnesses in detail and then find force in the submission of the learned Counsel for the appellant. We find that the informant (PW 9), specifically
stated in her evidence that her husband was assaulted by this appellant by means of a tangi on his head and other co-accused Laxman Dehri also
assaulted him by means of tangi. She has further stated that this appellant cut the neck of her husband by means of tangi due to which he died, but
we also find from evidence of PW 4, the Doctor that only three injuries were found on the person of the deceased. Injury No. (i) was lacerated
wound with diffuse swelling over the left mandible bone of the deceased which according to the Doctor may be possible by fall on hard surface.
Injury No. (ii) though was found to be an incised wound, but it was found to be simple in nature and Injury No. 3 was found to be a penetrating
wound over the right side of neck 3"" x 1"" deep to neck, which caused the death of the deceased but the same could have been caused by ''chhura''
as per the Doctor PW 4.
8. It is not a Case of the prosecution that the appellant assaulted the deceased, by means of chhura rather the specific evidence of the informant is
that the deceased was assaulted by the appellant by means of tangi ''Tangi is a heavy sharp cutting weapon but is not a pointed weapon whereas
the injury No. 3 was found to be caused by any pointed weapon. In such a situation, the injuries found on the person of the deceased which
caused his death does not fit in with the evidence of the informant PW 9. We further find from the evidence of PW 9 that the time of occurrence
was about 8:00 P.M. and according to her while returning from ''Haat'' on the way her husband was behind her, and at that time four persons
suddenly appeared and started assaulting her husband (deceased), but according to her mother (PW 1), who has been declared hostile, it was
dark at that time and it was not possible to identify as to who assaulted and committed murder of the deceased. In view of the above facts, the
evidence of PW 9 does not inspire confidence and therefore we are of the view that the conviction of the appellant for the offence u/s 302 of the
Indian Penal Code on such unreliable evidence of PW 9 cannot be sustained.
9. We also find that on the same set of evidence the learned Trial Court has adopted two different standard in weighing the evidence of the
prosecution i.e., one for acquitting the other co-accused and the other for convicting the present appellant. The learned Trial Court was not right in
convicting the appellant for the offence u/s 302 of the Indian Penal Code and acquitting other three accused persons on the same set of evidence.
10. In view of the discussions and findings above, we hold that the conviction of the appellant for the offence u/s 302 of the Indian Penal Code
passed by the Trial Court cannot be sustained.
11. Accordingly, this appeal is allowed and the judgment of conviction and sentence as passed by the Trial Court is hereby set aside and the
appellant is acquitted. The appellant, who is in custody, is directed to be released forthwith, if not wanted in any other case.