Lallu Manjhi & Anr. Vs. State of Jharkhand
Email(From the Judgment and Order dated 19.8.96 of the Patna High Court in Crl.A. No. 45 of 1991 (R))
(From the Judgment and Order dated 19.8.96 of the Patna High Court in Crl.A. No. 45 of 1991 (R))
Indian Penal Code, 1860
Sections 147, 148 and 302 read with section 149 – Murder- Unlawful assembly-Ten persons charged for the offence of forming an unlawful assembly and committing the murder of one person with deadly weapons – Trial court convicting some for the offences under sections 148 and 302 read with section 149 and others for the offence under section 147 only-Attack allegedly taking place in a field -Prosecution case resting on (i) sole eye witness (ii) witnesses who were ploughing another field at a distance of about a mile away from the place of the incident and who saw the accused persons running away after the crime (iii) persons who came to the scene after the occurrence and saw the victim lying dead and (iv) corroborative evidence like medical evidence, investigating officer etc – Medical report attributing death to the fracture of left temporal and occipital bone –
Apart from the injury deceased suffering fractures in rib bones – Eye witness neither wholly reliable nor wholly unreliable – Deficiencies found in the investigations such as no site plan was prepared, samples of blood stained earth not sent for chemical examination, no effort made for recovery and seizure of the weapons of offence, and non interrogation of the witnesses of the locality who were present at the scene -Genesis or root cause of the incident not known-No finding regarding the factum of possession of the land in dispute -Eye witness version given in court different from his account contained in the FIR – Entire prosecution case summed up in five questions asked to each of the accused persons. Held, in view of the several infirmities and on the state of the evidence available on record the accused persons could not be held guilty of the offences charged. Appeal allowed and accused persons acquitted of the charges framed and directed to be released forthwith.
We can neither place implicit reliance on nor totally discard the testimony of Mannu (PW-9) as it can neither be called wholly reliable nor wholly unreliable. Mannu is a witness who could have been naturally present with his brother while ploughing the field. However, we find his testimony to have been substantially improved at the trial than what it was to begin with when the First Information Report of the incident was lodged. (Para 10)
It is the specific case of Mannu that so far as the chest injuries (fracture of ribs) are concerned, it was the result of the accused Gurua having climbed upon the body of the deceased after he had fallen down and then pressed him against the ground. As the fracture of ribs is not accompanied by any apparent injury on the body, in all probability such injuries were not caused by any weapon. The injuries could have been caused either by pressing hard as alleged or even by forcefully pushing the deceased during the course of any scuffle. The deceased has suffered only two other injuries, which obviously were not caused by three persons. So far as the assault on the deceased is concerned, there is so much of chaff collected by Mannu (PW-9) in his deposition that it becomes very difficult, almost impossible, to sift the grains of truth from out of the mass of chaff of falsehood and exaggerations. (Para 10)
The Investigating Officer did not prepare any site plan of the place of occurrence. Samples of blood stained earth were not sent for chemical examination. No effort seems to have been made to recover and seize any weapon of offence. No witness of the locality, who could have been present near the place of occurrence at the time of the incident, has been interrogated. (Para 11)
The genesis or the root cause of the incident is not known. The most crucial question as to the factum of possession over the land in dispute immediately preceding the date of the incident cannot be determined and any specific finding in that regard arrived at. The version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against the accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the First Information Report. We cannot, therefore, place reliance on the sole testimony of Mannu (PW-9) for the purpose of recording the conviction of all the accused persons. (Para 12)
The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons. (Para 13)
All these aspects of the case, specially the infirmities in the prosecution evidence and the investigation, have not received the attention of the trial court as also the High Court. We are very clear in our mind that on the state of evidence available the accused persons could not have been held guilty of the offences charged. (Para 14)
1. Ten accused persons, namely, Chunnu (A-1), Lallu (A-2), Toro (A-3), Gurua (A-4), Surju (A-5), Sombari (A-6), Lakhi (A-7), Kapra (A-8), Chorey (A-9) and Suku (A-10) stood trial on charges under sections 148 and 302 read with section 149 of the IPC for being members of an unlawful assembly armed with deadly weapons with the common object of committing murder of Suphal Hansda. The sessions court held the charges under sections 148 and 302/149 IPC proved against five accused persons, namely, A-1 to A-4 and A-9. As against accused nos. 5 to 8, the trial court considered it safe to record their conviction under section 147 IPC only. Those held guilty under section 302/149 IPC were sentenced to undergo imprisonment for life. A sentence of rigorous imprisonment for one year was inflicted under section 148 of IPC. Both the sentences were directed to run concurrently. The accused nos. 5 to 8, who are all women, were directed to be released on admonition under section 3 of the Prohibition of Offenders Act.
2. Vide order dated 19th June 1989, the trial of Suku Majhi was directed to be separated. Nine accused persons were tried in present proceedings. All the accused persons and the deceased, the complainant and the witnesses are tribals belonging to Majhi community.
3. According to the FIR lodged by Mannu (PW-9) on 21.06.1987 at 2.00 PM, registered at P.S. Jadugoda, Mannu (PW-9) and his elder brother Suphal Hansda had gone to plough the field known as Murabil at about 6.00 AM. While they were ploughing the field, all the accused persons came and surrounded them. The accused persons were armed with weapons like bows and arrows, lathis and tangis. Accused nos. 1,2 & 9 dealt tangi blows on the deceased whereupon he fell down. Mannu, having seen the incident, ran away for his life raising hue and cry, but none intervened. All the accused persons left the place of occurrence and moved towards village Rajdhoha. At about midday the witness Mannu returned to the place of occurrence to find that his brother Suphal Hansda was already dead. The family members assembled. The Police had, by this time, reached the place of occurrence. Mohammed Soueb (PW-11) the S.H.O. took down the statement of Mannu on a piece of paper, which was got signed by Mannu and forwarded through the village Chowkidar to the police station and was registered as First Information Report of the incident. According to the FIR, the genesis of the dispute and the assault which had taken place on that day was the land and it was Kapra Majhain, the accused No. 8 who had collected all the accused persons for assaulting the deceased.
4. Here itself, it may be noted that though the names of all the accused persons are stated in the FIR, the overt act of assault on the deceased is attributed specifically to Chunnu, Lallu and Chorey (A-1, A-2 & A-9). No other accused is specifically alleged to have assaulted the deceased or anyone else. The only act attributed to Chunnu, Lallu and Chorey is of dealing blows on Suphal Hansda by tangi using its reverse side and no other accused is attributed with any specific overt act nor the use of any other weapon of offence with which the accused persons are alleged to have been armed, such as arrows and lathis. This is to be noted in particular because, as would be seen shortly hereinafter, the prosecution has tried to substantially improve its case during the course of investigation and then again during the course of trial.
5. At the trial, the prosecution examined in all 13 witnesses. The star witness is Mannu (PW-9) who is the sole eyewitness to the incident and at his instance the First Information Report of the incident was also recorded. The second set of witnesses consists of PWs. 1, 2, 3 & 5 who are the villagers who were ploughing another piece of land belonging to one Lakhan @ Lakhi situated at a distance of about one mile from the place of occurrence. When Mannu (PW-9) made good his escape and was passing by the side of the field of Lakhan, he met with these persons and these witnesses also saw the several accused persons armed with weapons coming from the side of the place of occurrence and shouting that they had already killed one and they would kill the other brother also. The third set of witnesses consists of PWs 6, 7 & 8 who reached the place of occurrence after receiving information of the incident having taken place and found Suphal Hansda lying dead at the place of occurrence. The fourth set of witnesses consists of formal or corroborative witnesses such as Doctor, the Investigating Officer and others.
6. Post mortem examination on the dead body of Suphal Hansda was performed on 22.06.1987 at 11.45 a.m. by Dr. D.B. Sarangi (PW-4). He found the following injuries on the person of Suphal :-
i) fracture of left temporal and occipital bone;
ii) 3rd, 4th, 5th & 6th ribs of the left side of the chest were found fractured.
Dr. Sarangi found cranial cavity containing clotted blood. Left lung was lacerated. Thoracic cavity contained six ounces of blood. In the opinion of Dr. Sarangi, the cause of death was injury no. 1. During cross-examination Dr. Sarangi stated that the injuries on the head were two in number. The injuries could not have been caused by a single blow.
7. Even before stating what was deposed to by Mannu (PW-9) before the trial court, we cannot resist observing that his deposition is substantially in departure from the earliest version of the incident as contained in the First Information Report. Mannu has substantially improved his version of the incident. He stated that Chorey, Lallu & Chunnu were armed with tangi. Gurua, Toro and Suku were armed with arrows and bows and Tenga, i.e. lathis. All other accused persons were armed with lathis. Having been assaulted by accused nos. 1, 2 & 9, Suphal fell down on the ground whereafter the accused Gurua climbed upon the body of the victim and pressed his body hard against the ground. Presumably the fracture of the ribs is sought to be attributed by this witness to this overt act of accused Gurua. Mannu went on to say that the women accused also assaulted the deceased with lathis and their legs.
8. During cross-examination Mannu (PW9) admitted that the piece of land over which the assault had taken place measures about 300 yards in length and about 100 yards in width. There was a dispute going on between the deceased and the accused persons over this land. The complainant claimed that his side had succeeded in legal proceedings upholding their entitlement to the land. This aspect of the case we will again revert to a little later. His attention was specifically invited to the First Information Report and his police statement and he admitted that the factum of accused Gurua having climbed on the body of the deceased and pressed the chest hard (resulting into fracture of the four ribs) though stated by him earlier too but is not to be found mentioned either in the FIR or in his police statement. So is the case with lathi blows having been dealt by the women accused persons. A certified copy of the order dated 29.03.1988 passed by sub-divisional magistrate in proceedings under section 145 of Cr.P.C. has been produced in the trial court and marked as exhibit-7. The present incident is dated 21.06.1987. It appears that the proceedings under section 145 Cr.P.C. came to be decided ex-parte. The suggestion given to Mannu (PW-9) in his cross-examination by the defence is that when this incident had taken place and the accused persons were arrested and were in jail, the complainant party acted with haste and got the case decided resulting into an ex-parte order in their favour whereby they were declared to be in possession of the property in dispute on the date of the passing of the preliminary order. It is pertinent to note that no material is available on record to show the date on which the preliminary order was passed. The witness was asked whether he had produced during investigation or was in a position to produce even now any document consisting of revenue records or any receipt showing payment of land revenue of the land so as to show his possession or entitlement to possession over the land in dispute. The witness answered in the negative.
9. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See Vadivelu Thevan etc. v. State of Madras1}.
10. In the case at hand, we can neither place implicit reliance on nor totally discard the testimony of Mannu (PW-9) as it can neither be called wholly reliable nor wholly unreliable. Mannu is a witness who could have been naturally present with his brother while ploughing the field. However, we find his testimony to have been substantially improved at the trial than what it was to begin with when the First Information Report of the incident was lodged. Though at the trial Mannu alleges all the 10 accused persons to have dealt blows with their respective weapons on the body of his brother Suphal Hansda, but that is certainly not correct. If 10 accused persons had dealt even one blow each, there would have been a minimum of 10 injuries on the person of the deceased. It is the specific case of Mannu that so far as the chest injuries (fracture of ribs) are concerned, it was the result of the accused Gurua having climbed upon the body of the deceased after he had fallen down and then pressed him against the ground. As the fracture of ribs is not accompanied by any apparent injury on the body, in all probability such injuries were not caused by any weapon. The injuries could have been caused either by pressing hard as alleged or even by forcefully pushing the deceased during the course of any scuffle. The deceased has suffered only two other injuries, which obviously were not caused by three persons. So far as the assault on the deceased is concerned, there is so much of chaff collected by Mannu (PW-9) in his deposition that it becomes very difficult, almost impossible, to sift the grains of truth from out of the mass of chaff of falsehood and exaggerations.
11. There is another very material aspect of the incident and we cannot resist observing that the investigation in the case has been very defective. The Investigating Officer did not prepare any site plan of the place of occurrence. Samples of blood stained earth were not sent for chemical examination. No effort seems to have been made to recover and seize any weapon of offence. No witness of the locality, who could have been present near the place of occurrence at the time of the incident, has been interrogated. It was the cultivation time and agriculturists or labourers busy ploughing the fields must have been present in neighbourhood. The witnesses referable to neighbouring piece of land could have deposed to as to the question and nature of possession over the land in dispute; as to whether it was cultivated previously and if so by whom – whether the complainant party or the accused persons. The village Patwari and Chowkidar would have been most material witnesses. Their interrogation and collection of entries in revenue papers would have revealed who was in actual possession of the land prior to the incident. The Court is just left in doubt guessing whether it was the complainant party in possession of the land illegally obstructed by the accused persons or whether the accused persons were in possession of the land which was sought to be trespassed upon by the deceased and his brother Mannu (PW-9) and the attempted trespass was sought to be prevented and pre-empted by the accused persons.
12. It is, therefore, clear that the genesis or the root cause of the incident is not known. The most crucial question as to the factum of possession over the land in dispute immediately preceding the date of the incident cannot be determined and any specific finding in that regard arrived at. The version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against the accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the First Information Report. We cannot, therefore, place reliance on the sole testimony of Mannu (PW-9) for the purpose of recording the conviction of all the accused persons.
13. Incidentally, it may also be stated that the manner in which the trial court has recorded the statements of the accused persons under section 313 Cr.P.C. is far from satisfactory. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons.
14. All these aspects of the case, specially the infirmities in the prosecution evidence and the investigation, have not received the attention of the trial court as also the High Court. We are very clear in our mind that on the state of evidence available the accused persons could not have been held guilty of the offences charged.
15. The appeal is allowed. The judgment of the trial court as also of the High Court are set aside. The accused appellants are acquitted of the charges framed against them. The appellants shall be released forthwith if not required to be detained in connection with any other offence.
16. We place on record appreciation of valuable assistance rendered at the hearing by Mrs. Revathy Raghavan, advocate who appeared as amicus.
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