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CASE NO.:

Appeal (crl.) 15 of 2002

PETITIONER:

Lallu Manjhi & Anr.

RESPONDENT:

State of Jharkhand

DATE OF JUDGMENT: 07/01/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT:

JUDGMENT

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

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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

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(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

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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.