Sukhlal Murmu Vs State

2025:JHHC:17948-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B) No.323 of 1998 (P)

(Against the judgment of conviction dated 27.06.1998 and order of sentence dated 30.06.1998 passed in Sessions Trial No. 125 of 1996 arising out of Poraiyahat P.S. Case No. 105 of 1995 by the Court of Sri R.P Verma, Sessions Judge, Godda)

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Suklal Murmu, Son of Patwari Murmu, resident of Village-Dipna, P.SPoraiyahat, District-Godda …. …. Appellant

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…. …. Appellant -Versus-

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The State of Bihar (Now Jharkhand) …. …. Respondent

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RAJESH KUMAR

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---For the Appellant : Mr.Awadhesh Pandey, Amicus Curiae For the State : Mr. Bhola Nath Ojha, Special P.P

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Order No.11/Dated: 02^nd July, 2025

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1. This appeal is directed against the judgment of conviction dated 27.06.1998 and order of sentence dated 30.06.1998 passed in Sessions Trial No. 125 of 1996, arising out of Poraiyahat P.S. Case No. 105 of 1995 by the Court of learned Sessions Judge, Godda, whereby and where under the appellant along with his father Patwari Murmu (deceased) has been convicted for the offence punishable under Section 302/34 of the Indian Penal Code and has been sentenced to undergo R.I. for life.

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Factual Matrix

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2. The prosecution story in brief as per the allegation made in the First Information Report reads as under:-

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One Karmi Kisku wife of Late Sikar Murmu (deceased) gave fardbeyan before Mr. Sashi Nath Singh, A.S.I of Police, Poraiyahat on

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05.09.1995 at 10:30 A.M. that on 04.09.1995 at about 07:30 P.M., the informant along with her husband i.e., the deceased were coming from ‘Hatia’ and passing through the road in way to their house and when they reached near the house of Patwari Murmu, the said Patwari Murmu and the appellant Suklal Murmu appeared with Tangi in their hands and started assaulting the deceased by means of Tangi and as a result of which, the informant’s husband having sustained injury fell down and become unconscious. Thereafter, the informant raised hulla and on being hulla , so many persons came near the place of occurrence and on seeing the aforesaid persons the appellant rushed towards their house. The informant narrated the occurrence to all the witnesses and thereafter the injured was brought to the hospital in senseless condition, where he succumbed to his injuries during course of his treatment. The informant further stated that a land dispute was going on since the last two years to three years.

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3. On the basis of fardbeyan of the informant before the A.S.I. Sashinath Singh of Poraiyahat P.S. on 05.09.1995 at 10.30 A.M., Poraiyahat P.S. Case No. 105 of 1995 has been instituted. After investigation, charge-sheet has been submitted on 29.11.1995 for the offence registered under Section 302/34 of the IPC.

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4. Accordingly, the cognizance for the offence under the aforesaid sections was taken against the appellant and the case was committed to the court of sessions as per the order dated 03.08.1996 and thereafter the trial commenced.

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5. The prosecution has examined altogether 11 witnesses, which are as

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under:-

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(i) PW-1 Somai Hansda (ii) PW-2 Rameshwar Kisku (iii) PW-3 Talko Murmu (iv) PW-4 Karmi Kisku (v) PW-5 Dr. Satyendra Mishra i.e., Medical Officer (vi) PW-6 Sonwa Murmu (vii) PW-7 Chammi Murmu (viii) PW-8 Dr. Bindeshwar Sharma (ix) PW-9 Sunil Murmu (x) PW-10 Lakhandeo Singh, S.I (xi) PW-11 Betka Kisku

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6. The prosecution has also adduced some documentary evidences which

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are as under:-

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Ext.1-Post Mortem Report 2. Ext.2-Injury Report 3. Ext.3- Fardbeyan 4. Ext.4-Formal F.I.R 5. Ext.5- Seizure list carbon copy 6. Ext.6- Carbon copy of Inquest Report 7. Ext.7- Signature of Betka Kisku on the seizure list.

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7. The learned Trial Court by considering the testimony of PW-3, PW-4, PW-7& PW-9 as an eye-witnesses and finding their testimonies to be corroborated from the testimony of the Doctor, who has been examined as PW-5 & PW-8 and the Investigating Officer i.e., PW-10, has convicted the

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present appellant and Patwari Murmu for the offence punishable under Sections 302/34 of the Indian Penal Code, which is subject matter of the present appeal.

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Arguments advanced on behalf of the Appellant:

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8. Mr. Awadhesh Pandey, learned Amicus Curiae appearing for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds.

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(i) That the impugned judgment of conviction is not sustainable in the eyes of law.

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(ii) PW-3, PW-4, P.W.7 and PW-9 have been considered to be eye-witnesses, but if their testimony will be taken into consideration together and entirety, it would be evident that these witnesses cannot be said to be an eye-witness.

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(iii) The testimony of PW-4 is bearing upon the judgment of conviction, since, much reliance has been placed by the learned Trial Court on the testimony of PW-4, but if the testimony of PW-4 will be taken into consideration along with the testimony of Doctor, it would be evident that the PW-4 cannot be treated to be an eye-witness, reason being that PW-4 has deposed in her testimony that she was accompanying the deceased by following him and at that time two persons namely, Patwari Murmu and Suklal Murmu (i.e, the present appellant) had assaulted the deceased by Tangi from his back and the deceased fell down. Thereafter, he was carried to the hospital, where he succumbed to the injuries, but the aforesaid nature of injury has not been found to be substantiated by the testimony of the Doctor, who

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has not found any injury behind the body of the deceased, rather the doctor has also deposed that there was no head injury as has also been deposed in the cross-examination.

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(iv) The testimony of witnesses i.e, PW-3, PW-4, P.W.7 and PW-9 can also not to be treated as an eye-witnesses, since they have not stated what they have stated in course of the trial rather what has been stated while recording their statements under Section 161 of the Cr.P.C, altogether different case has been made out in course of the trial and as such, the same is nothing but improvement of the entire story. But the Trial Court without taking into consideration all aspect of the matter has convicted the appellant by the impugned judgment and as such, the impugned judgment cannot be said to be sustainable in the eyes of law and hence, fit to be quashed and set-aside.

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Arguments advanced on behalf of the State:

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9. Per contra, Mr. Bhola Nath Ojha, learned Special P.P appearing for the State while defending the impugned judgment of conviction have taken the following grounds:-

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(i) The learned Trial Court has taken into consideration the testimonies of these witnesses i.e., PW-3, PW-4, PW-7& PW-9 who have rightly been considered to be an eye-witnesses, since, they have been found to be at the place of occurrence, if the testimonies of these witnesses are taken together.

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(ii) PW-3, PW-4, P.W-7 & PW-9 have also been found incorroboration from the testimony of the Doctor, who has given its

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finding regarding the nature of injury said to be caused by sharp cutting weapon.

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(iii) The testimony of the Doctor is corroborated from the testimony of the Investigating Officer. Since the Investigating Officer has corroborated the fact that the Tangi (i.e., sharp cutting instrument) has been recovered from the place of occurrence.

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The learned counsel for the State based upon the aforesaid grounds has submitted that the impugned judgment needs no interference.

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Analysis

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10. We have heard the learned counsel for the parties and have gone through the findings recorded by the learned Trial Court in the impugned judgment as also the testimony of the witnesses and other materials exhibits as available in the trial court record.

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11. This Court has now to examine:-

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(i) Whether the learned Trial Court while convicting the appellant has properly considered the testimony of the eye-witnesses?

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(ii) Whether the learned Trial Court while accepting the testimony of PW-4 to be an eye-witness, can be said to be proper?

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12. This Court before answering the said issues is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned Trial Court during the trial has altogether examined eleven witnesses.

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P.W.1 Somai Hansda - He is a co-villager, who in his examination-in-chief

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has stated that on the date of occurrence when he went to Gangwara Hatia and when he was returning near the house of accused Patwari Murmu, he

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saw that the deceased Sikar Murmu, lying injured. He came to know that Patwari Murmu and Suklal Murmu (i.e., present appellant) have assaulted him with a tangi. He further deposed that the injured Sikar Murmu died in the hospital. In his cross-examination, he has stated that he told the Police about the assault by Patwari Murmu and Suklal Murmu by a tangi, which was informed to him by the wife of the deceased.

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P.W.2 Rameshwar Kisku is also a co-villager, who has stated that on the date of occurrence while he was coming from Gangwara Hatia, he came to know from the co-villagers about the assault by Patwari Murmu and Suklal Murmu upon the deceased Sikar Murmu by a tangi. The deceased Sikar Murmu was admitted in Poraiyahat Hospital where he died. In the cross examination, he has stated that there are three houses in between his house and the house of the deceased. He came to know about the incident when some people who were passing nearby his house informed him that the deceased Sikar Murmu has been assaulted. He further stated that he did not meet with wife of the deceased on the fateful day. He further deposed that he cannot say as to which land is the cause of dispute.

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P.W.3 Talko Murmu in her examination in chief has stated that on the

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fateful day she went to Gangwara Hatia at around 08:00 ‘O’ clock P.M. When she reached near the house of Patwari Murmu she saw the deceased Sikar Murmu with his wife, who were also going ahead of them. Thereafter Patwari Murmu and Suklal Murmu armed with tangi came there and asked the deceased as to what they were doing there and assaulted the deceased by the tangi from the back side and fled away. In her cross examination

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also she has stated that while returning from Hatia at about 08:00 O’ clock P.M., when she reached near the house of Patwari Murmu, she saw both Patwari Murmu and Suklal Murmu standing there armed with tangi. She further deposed that she told the police that Patwari Murmu and Suklal Murmu assaulted the deceased with tangi from back side and fled away. She also went to her house and informed the Choukidar. She has further stated in her cross-examination that the deceased was taken to Poraiyahat at that night and she along with Sonua Murmu, Sunil Murmu, Dhami Murmu, wife of the deceased Karmi Kisku and Mahaful Hembrom went with the deceased. She has further deposed that she did not tell the Police that when she reached the place of occurrence she saw the deceased lying in an injured condition. She also did not tell the Police that the wife of deceased has told her that Patwari Murmu and his son has assaulted her husband with tangi and lathi .

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P.W.4 Karmi Kisku- She is the informant and wife of the deceased. She

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has stated in her examination-in-chief that on the fateful day while she along with her husband (deceased) was returning to their house from Hatia, suddenly the accused Patwari Murmu and Suklal Murmu (appellant herein) appeared there armed with Tangi. They assaulted her husband from back at his neck by means of Tangi due to which he sustained injuries and fell down being unconscious. Thereafter both the accused fled away.

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On raising alarm Talko Murmu, Sunil Murmu and Sonwa Murmu arrived there and with their help she lifted her injured husband to her house and thereafter the deceased, in injured condition was carried to Poraiyahat

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Police station where she was asked to immediately rush to the hospital. The informant brought her injured husband to the hospital where he died.

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In her cross-examination she has stated that she along with her husband was walking back and forth i.e. her husband was walking in front of her and she was on the backside of her husband. She has further stated in her cross examination that both the accused assaulted her husband from behind. She cannot say as to how many blows of tangi were given upon the deceased. Patwari Murmu gave a tangi blow upon her husband to which he fell down. When she raised alarm, her family members came there and Sonwa Murmu, Sunil Murmu and Talko Murmu and she herself took the deceased to the Poraiyahat police station and narrated the incident to the Officer-in-Charge. She has further stated that when she was taking away her injured husband nobody came from near the place of occurrence. She has also stated in her cross examination that Sonwa Murmu is her brotherin-law and he also went to Hatia from where he returned to his house at about 8-9 O’clock P.M. She has deposed that Sonwa Murmu did not tell her that the deceased was lying there. She has also denied that when Sonwa Murmu came to the house she was already there and she also denied that Sonwa Murmu told her that Sikar Murmu (deceased) was lying. She also denied that she was not with her husband and that she has not seen her husband being assaulted.

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P.W.5 Dr. Satyendra Mishra has performed the post mortem

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examination on the dead body of the deceased Shikar Murmu and found the following :-

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(i) Compound fracture of both bones of left leg.

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(ii) An incised wound 1” X ½” x ½” on the tibia tuberosity of right leg in upper third of the right by just below the knee.

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(iii) Two incised wounds each measuring 1” x ½” x ½” on the right leg, medical aspect of calf.

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(iv) Compound fracture of head of radius- head of radius slashed.

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(v) Incised would 1.1/2” x 3/4 x3/4” on the outer aspect of right arm.

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(vi) Incised wound 1.1/2” x ¾”x3/4” on the outer aspect of right shoulder.

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All these wounds were caused by sharp cutting weapon having a small blade.

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There were two abrasions also as following:-

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(vii) One abrasion on tip of right shoulder.

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(viii) One abrasion on right half of face.

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The abrasions were caused by hard blunt substance.

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On dissection head, bony skull was found intact, manings and brain no abnormality was detected. Heart- both sides empty. Stomach contained pasty puffed rice.

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Time elapsed since death was within 12 hours.

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In my opinion the death was caused by shock and haemorrhage due to the sharp cutting injuries caused by sharp weapon of small blade may be by tangi.

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P.W.6 Sonwa Murmu is the brother of the deceased. In his examination-in

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-chief he has stated that he went to Gangwara Hatia on the date of occurrence. His brother (deceased) and wife of the deceased also went to Gangwara Hatia. He stayed there for sometime while the deceased and his wife returned. While returning he saw the deceased lying near the door of Patwari Murmu. When he inquired from the wife of the deceased then she said that Patwari Murmu and Suklal Murmu have assaulted her husband with a tangi and fled away. Thereafter, the deceased was taken to the police station and from there he was taken to the Doctor. Thereafter, he came to know that Sikar Murmu has died.

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In cross examination he has stated he did not meet with the deceased and his wife in Hatia and he cannot say at what time the deceased and his wife went to Hatia. He has further stated that while returning back to his house he saw his brother (deceased) lying and fled away. The wife of the deceased was also there. He further told in his cross-examination that he told the police that he came to know later on about the incidence of assault by Patwari Murmu and his son upon the deceased Shikar Murmu. He further deposed that he along with his brother Solin, wife of Shikar Murmu, Talko, Matla etc. took the deceased to the police station. He has further stated that he did not tell the police that Doctor asked to take the patient to Godda and that he went to his house for arranging money. He also denied that Sikar Murmu himself was a criminal. He also denied that some miscreants assaulted Sikar Murmu and the accused have been falsely implicated in the case.

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P.W.7 Chammi Murmu is the daughter of the deceased Sikar Murmu. In

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her examination-in-chief, she has state that she along with her deceased father and mother went to Gangwara Hatia. On sunset they were returning to their home and when they were crossing from the house of accused Patwari Murmu and Suklal Murmu, both accused assaulted the deceased from behind due to which her father fell down. After assaulting her father they fled from there. Thereafter her uncle and they took her father to the police station and from there her father was sent to the hospital. Next morning her father died. In her cross examination she has stated that she told the Police that she along with her father and mother went to Hatia. She

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also stated that some people were coming from behind. She also told the Police that Patwari Murmu and Suklal Murmu had assaulted her father due to which her father fell down and the accused assaulted and thereafter fled from there. She also denied that she ever told the Police that around 7-8 PM in the night on hearing the cry of her mother she went to the place of occurrence that saw her father Sikar Murmu near the house of Patwari Murmu lying unconscious.

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P.W.8 Dr. Bindeshwar Sharma , who has examined the injured Sikar

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Murmu, who was referred to him and found following injuries:-

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I. Incised wounds 1” x ½”x ¼” other ½” x1/2” x … ½”X1/2”, ¼” and the fourth ½” x ¼” were found on the left lower leg with fracture on tibia and fibula together with swelling.

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II. Incised wound 1” x ½” x/1/2” on the upper surface of the left foot.

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III. Incised wound 1” x1/2” x/1/4’ on the right leg. IV. Incised wound 1” x/12” x1/4” o the right lower Leg. V. Incised wound 2” x 1”x1” on the left lateral surface right elbow compound fracture of upper portion of radical bone.

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VI. Incised wound 3” x 1” x 2” on the back of right shoulder joint.

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VII. Multiple abrasions on the right shoulder and face.

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The injuries at Sl. (i) (v) were grievous in nature while others were simple.

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All injuries were caused by sharp cutting substance. The condition of the injured was serious and he was unconscious.

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Such injuries could be caused by the blows of a “Tanga” leaving three inches long edge.

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There was no head injury.

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The injuries were fatal. I have not mentioned in my report that the injuries were dangerous to life.

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P.W.9. Sunil Murmu - He has stated in his examination in chief that he

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was coming after Sikar Murmu, Karmi Kisku and their child from

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Gangwara Hatia. When he reached near the house of Patwari Murmu, the accused Patwari Murmu and his son assaulted Sikar Murmu with a tangi. Thereafter he went to Poraiyahat Police station along with his niece, his wife, wife of Sikar Murmu and Sonwa Murmu and thereafter to the Hospital where the injured Sikar Murmu subsequently died. In his cross examination he has stated that he met with the wife of the deceased where the deceased was laying. The wife of deceased Sikar Murmu is his sisterin-law. He has deposed that he told before the Police that in the night the deceased Sikar Murmu was taken to the Police Station on a cot. He also told the Police that he was coming behind the deceased Sikar Murmu and his wife.

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P.W.10. Lakhandeo Singh - He is the Investigating Officer of the case. He

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has stated in his examination-in-chief that A.S.I. Sashinath Singh, recorded the fardbeyan of the informant Karmi Kisku in Poraiyahat State Hospital and the same has been proved and marked as Ext. 3. He has proved the inquest report marked as Ext. 6 said to have been prepared by the said A.S.I Sashinath Singh. He has also proved the formal F.I.R. recorded by the then Officer-in-Charge R.B.Nanhe and the same is marked as Ext. 4. He has further deposed that having been entrusted with the investigation of the case he inspected the place of occurrence which is said to be a village path in front of the house of the accused Patwari Murmu which was 10-12 feet wide. He has further stated that he did not find any blood stain at the place of occurrence, however he seized a small tangi and a bamboo stick from the house of accused Patwari Murmu. The seizure list is marked as Ext. 5.

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In his cross examination he has stated that the deceased was brought to the Police Station by his wife in an injured condition and immediately he was sent to the Hospital by A.S.I. Sashinath Singh.

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He has further deposed that P.W.1 Somai Hansda did not say that wife of the deceased Sikar Murmu told him that Patwari Murmu and Suklal Murmu assaulted the deceased with Tangi rather he stated that he came to know about the incident from villagers and family members. Further he has deposed that PW- 3 Talko Murmu has stated that she returned back at 8 ‘O’ Clock but she did not say that when she was returning back she was behind the deceased Sikar Murmu and his wife near the house of Patwari Murmu. Further the Investigating Officer (PW-10) has deposed in his crossexamination that P.W.3 Talko Murmu also did not say that when the deceased Sikar Murmu along with his wife reached near the house of Patwari Murmu, the accused Patwari Murmu and Suklal Murmu came there with tangi in their hand. Talko Murmu also did not say that Patwari Murmu asked the deceased as to what he was saying at Hatia. Talko Murmu also not stated that Patwari Murmu assaulted the deceased Sikar Murmu behind his back and that both the accused after assaulting the deceased fled away.

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The Investigating Officer (P.W.10) has further deposed that P.W. 6 Sonwa Murmu did not say that wife of the deceased Sikar Murmu was there. Further P.W.7 Chammi Murmu also did not say that on the fateful day she along with her father and mother went to Hatia and in the evening they returned back. She also did not say that Patwari Murmu and Suklal Murmu assaulted her father by a farsa due to which her father fell down

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and thereafter both accused assaulted him and fled away rather she told that around 7:30-8:00 O’clock P.M on hearing the cry of her mother she went there and saw her father Sikar Murmu was laying in unconscious condition near the house of Patwari Murmu.

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P.W.11 Betka Kisku - He is a formal witness who has proved his signature on the seizure list which is marked as Ext. 7.

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13. It is evident from the testimony of PW-1, who has reached to the place of occurrence after the incident having been taken place and he reached to the said place on the information given to him and as such, he is merely a hearsay witness.

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14. PW-2 is also a hearsay witness, since, he after receiving the information, hadcame to know that the deceased was assaulted by Tangi by the appellant. In the cross-examination, he has not said much about the occurrence seen by him.

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15. PW-3, in examination-in-chief has deposed that she had seen the appellant along with his father (now deceased) following the deceased armed with the Tangi in his hand and thereafter, assaulted the deceased and fled away from the place of occurrence.

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She has thoroughly been cross-examined wherein she has deposed in paragraph No.4 by supporting the deposition which has been made in the examination in chief but in paragraph No.5 she had deposed that the appellant was having the Lathi, not the Tangi.

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16. PW-4(informant), wife of the deceased has been considered to be an eye-witness by the learned Trial Court on the basis of the story which has

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been narrated in the examination-in-chief. She has deposed that the appellant has assaulted the deceased over the neck portion from behind. The deceased fell down and thereafter, the appellant and his father fled away from the place of occurrence and her husband become senseless. She has further deposed that she had made noise by giving sound and then Talko Murmu, Sunil Murmu and Sonwa Murmu had reached at the place of occurrence and the deceased was carried to the police station and thereafter he died.

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In the cross-examination, it has been deposed by her that she was going along with her husband and was three (03) feet behind him and when she reached at the distance of 08-10 feets towards the door of Patwari Murmu and then two persons have assaulted her husband behind his back, upon which, the deceased fell down. Her husband had also given sound, but nobody came at the place of occurrence. She has deposed that she also cried and thereafter, some neighbours and family members have reached to the place of occurrence and then, the deceased was carried to the Poraiayat Police Station and at that time, the blood was oozed from the body of the deceased.

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17. The Doctor PW-5, who has conducted the post mortem on the dead body of the deceased, has found all the injuries given by sharp cutting weapon. It is evident from the nature of injury as has been found by the doctor that all the injuries were in the front of the body, in the right by just below the knee on the right leg, compound fracture of head of radius slashed, incised wound on the outer aspect of right arm and incised wound on the outer aspect of right shoulder. All the wounds have been found to be caused by sharp cutting weapon having a small blade.

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18. The Doctor PW-8, who has treated the deceased, has also found the same nature of injury. However, in his cross-examination, he had deposed particularly at paragraph No.10 thereof that there was no head injury.

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19. Thus, from the medical evidence the part of the testimony as narrated by the informantP.W.4 that deceased was assaulted in back side of neck by the accused person has not been corroborated.

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20. The Investigating Officer was examined as PW-10, who has conducted the investigation and he has submitted the charge-sheet. He has not found any blood stain at the place of occurrence as is evident from the deposition recorded at paragraph No.6. The recovery of one small Tangi (axe) and one bomboo stick has been made in front of the witnesses.

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21. The testimony which has been recorded at paragraph No.19 is the reiteration of the statement said to be made while recording the statement under Section 161 Cr.P.C, but it is evident therefrom that the witness namely, Talko Murmu, who has been examined as PW-3 has not disclosed about the fact that Sikar Murmu and his wife were also going at the time when the occurrence took place. It has been deposed that the PW-3 has not stated that when Sikar Murmu (deceased) and his wife reached near the house of Patwari Murmu, then Patwari Murmu and Sukhlal Murmu i.e. the present appellant had reached along with the Tangi in their hand. At paragraph No.21, the Investigating Officer has also deposed that the witness Chammi Murmu (P.W.7) has also not stated about the occurrence said to be committed by the appellant, since, it has not been said by her that Patwari Murmu and Suklal Murmu were following her father and thereafter, he was cut by farsa, due to which, her father died.

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22. This Court in view of the appreciation of the witnesses is now proceeding to examine the findings so recorded by the learned Trial Court as to whether the consideration so made by the Trial Court by considering the testimonies of P.W.3, PW-4, PW-7and PW-9 can be considered to be an eye-witness.

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23. This Court at the risk of repetition is again referring the testimony of PW-3, PW-4, PW-7 and PW-9. It is evident from the testimonies of PW-3, PW-4, PW-7 and PW-9, if taken together with the testimony of the Investigating Officer, PW-10, particularly at paragraph Nos.19 & 21 that what have been deposed by these witnesses during the course of trial is different from what have been stated before the Investigating Officer at the time of recording their statements under Section 161 Cr.P.C. The testimonies so recorded by PW-3, PW-4, PW-7 and PW-9, therefore, appears to be an improvement what has been recorded while recording the prosecution version at the time of institution of the First Information Report.

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24. The PW-3, PW-4, PW-7 and PW-9 cannot be considered to be eyewitnesses, since, they have not remained consistent to what they have deposed in Court with their statement at the time of recording under Section 161 Cr.P.C. Further, the testimonies of PW-4, PW-7 along with PW-9 will be taken into consideration, these witnesses are contradictory to each other.

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25. In the testimony of PW-4, she has specifically deposed that she was accompanying her husband and the appellant along with his father were following her husband and assaulted behind the back of the deceased leading to injury in the neck, while PW-7 has deposed that the assault was committed by farsa but no farsa had been recovered as would be evident

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18. Cr. Appeal (DB) No. 323 of 1998 (P)

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from the testimony of the Investigating Officer, wherein, the Investigating Officer i.e PW-10 has deposed that one small Tangi had been seized in presence of the witnesses. There is no recovery of f arsa as per the admitted case of the prosecution as it evident from the seizure-list marked as Exhibit No. 5.

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26. The testimony of the witnesses so far as it relates to the injury upon the body of the deceased is also not in corroboration what they have deposed in the examination-in-chief and in the cross-examination, since, the doctor PW-8 who had treated the deceased at the time when he was alive. P.W.5, who has conducted the post mortem on the person of the deceased has not found any injury behind the back side of the deceased, rather, all the injuries have been found to be on the frontal part of the body. No head injury has been found by the doctor, who had examined the injured deceased Sikar Murmu, rather, all the injuries have been found in frontal part of the body. 27. This Court, on consideration, of the witnesses and adverting to the finding recorded by the learned Trial Court in its impugned judgment is of the view that the learned Trial Court has not properly appreciated the testimonies of the witnesses, while convicting the appellant by considering the testimonies of PW-3, PW-4, PW-7 and PW-9, to be an eye-witnesses.

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28. The law is settled that evidence of an eye-witness should be of very sterling quality and calibre and it should not only instil confidence in the court to accept the same but it should also be a version of such nature that can be accepted at its face value. The Hon’ble Apex Court in the case of Rai Sandeep @ Deepu alias Deepu V. State (NCT of Delhi) (2012) 8 SCC 21 has observed that the“sterling witness” should be of very high quality and

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19. Cr. Appeal (DB) No. 323 of 1998 (P)

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calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. What would be relevant is the truthfulness of the statement made by such a witness. It should be natural and consistent with the case of the prosecution of the accused. The relevant

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paragraph of the aforesaid Judgment is being quoted as under:

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“22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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29. The law is also settled that merely on the basis of presumption and

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conjecture, there cannot be conviction of a person snatching away the right to life as directed under Article 21 of the Constitution of India, rather the

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20. Cr. Appeal (DB) No. 323 of 1998 (P)

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principle is that the conviction is to be based upon the evidence as produced by the prosecution witness if found to be proved beyond all reasonable doubt.

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30. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in

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the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in

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(2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under:-

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"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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31. Likewise, the Hon'ble Apex Court in the case of Krishnegowda &

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Ors. Vrs. State of Karnataka , reported in (2017) 13 SCC 98 , has held at

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paragraph-26 as under:-

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"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

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32. It requires to refer herein that the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the

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judgment rendered by the Hon'ble Apex Court in the case of State of

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Haryana Vrs. Bhagirath & Ors. , reported in (1999) 5 SCC 96 , wherein, it

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has been held at paragraph-7 as under: -

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"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

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33. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v.

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State of Karnataka (Supra) at paragraph- 32 and 33 has held as under:-

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"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

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33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.----

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34. This Court applying the aforesaid principles and based upon the discussion made herein above, is of the view that the impugned judgment needs interference by this Court.

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35. Accordingly, the impugned judgment of conviction dated 27.06.1998 and order of sentence dated 30.06.1998 passed in Sessions Trial No. 125 of 1996, arising out of Poraiyahat P.S. Case No. 105 of 1995 by the Court of learned Sessions Judge, Godda is hereby set-aside.

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22. Cr. Appeal (DB) No. 323 of 1998 (P)

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36. Consequent thereto, the instant criminal appeal is allowed. The

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appellant is discharged from the criminal liability.

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37. Let the remuneration of the learned Amicus Curiae be paid by the JHALSA as admissible.

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38. Let this order be communicated to the learned Member Secretary, JHALSA for the needful.