Lallu Manjhi
& Anr Vs. State of Jharkhand [2003] Insc 3 (7 January 2003)
R.C.
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
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 r/w 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.
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.
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 Chowkidhar 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.
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.
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.
Post
mortem examination on the dead body of Suphal Hansda was performed on
22.06.1987 at 11.45 AM 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.
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.
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 u/s 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 u/s 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.
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 Madras, AIR 1957 SC 614}.
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.
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 Chowkidhar
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 preempted by the accused persons.
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.
Incidentally,
it may also be stated that the manner in which the Trial Court has recorded the
statements of the accused persons u/s 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.
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.
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.
We
place on record appreciation of valuable assistance rendered at the hearing by
Mrs. Revathy Raghavan, Adv. who appeared as amicus.
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