Criminal Appeal (DB) No. 88 of 1999(P) Against the judgment and order of conviction and sentence dated 22.06.1996 passed by Sri Jaywant Tiru, learned Additional Sessions Judge, Simdega in S.T. No. 65/92. Madho Baraik ... Appellant Versus The State of Bihar (now Jharkhand) … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI ---- For the Appellant : Mr. Anupam Anand, Amicus Curiae For the Respondent : Mrs. Kri. Rashmi, A.P.P. ---- CAV On: 12/12/2024 Pronounced On: 14/01/2025 Rongon Mukhopadhyay, J. : 1. Heard Mr. Anupam Anand, learned amicus curiae for the appellant and Mrs. Kumari Rashmi, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 22-06-1996 passed by Sri Jaywant Tiru, learned Additional Sessions Judge, Simdega in S.T. No. 65 of 1992 whereby and whereunder the appellant has been convicted for the offence under Section 302 IPC and has been sentenced to imprisonment for life along with a fine of Rs. 3000/- and in default in payment of fine, to undergo further rigorous imprisonment for one year. 3. The prosecution case arises out of the fardbeyan of Rijhan Devi in which it has been stated that in the night of 28/29-07-1991, Mangra Baraik was sleeping on the verandah with his elder son and the informant and Mangri Devi, the two wives of Mangra Baraik, were sleeping nearby while the sister-in-law of the informant was sleeping in a room. It has been alleged that around midnight, a groaning sound was heard and when the informant and the other wife of Mangra Baraik woke up, they saw Madho Baraik(appellant) with a knife and Durja Singh going out of the house. It has been alleged that Mangri Devi had seen Madho Baraik pulling out a knife entrenched in the rib portion of Mangra Baraik. In the previous year, Madho Baraik had 2 | P a g e quarreled with Mangra Baraik and in the preceding evening, Madho Baraik had called Mangra Baraik, but the informant and Mangri Devi did not permit him to go as Madho Baraik was in an intoxicated condition. Based on the aforesaid allegations, Bano P.S. Case No. 27/91 was instituted under Section 302/34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S.T. No. 65/92. The charge was framed under Section 302/34 IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. Vide impugned judgment dated 22-06-1996, one of the accused, namely, Durja Singh has been acquitted by the learned trial court. 5. The prosecution has examined as many as twelve witnesses in support of its case: P.W.1 Rijhan Devi is the informant who has stated that on the fateful night, she was sleeping in the veranda and along with her Mangri, her husband Mangra, her son and the sister of Mangri, namely, Ghurni Devi were sleeping. She woke up on hearing the sound of groaning and saw Madho pulling out a knife from the ribs of her husband. Her husband had caught the hands of Madho Baraik, who brushed him aside and fled away with Durja Singh. She had identified both the accused as it was a moonlit night. She had seen her husband falling down who subsequently died. In cross-examination, she has deposed that she and the others were in a deep slumber and woke up on the sound of her husband. When she and the others raised alarm, Sukhjan Baraik had come. P.W.2 Mangri Devi has stated that she and her family members were sleeping in the veranda and it was a moonlit night. On the sound of groaning, she woke up and saw Madho, by assaulting her husband, fleeing away. Her husband had caught hold of the hands of Madho, who removed his arm from the clutches of her husband as a result of which he fell down. Durja Singh was also present with Madho and both had fled away. Her husband died the moment he fell down. 3 | P a g e In cross-examination, she has deposed that on hearing the sound, everyone had woken up. She had seen the accused fleeing away. P.W.3 Ghurni Devi is the sister of the deceased who used to stay with the deceased. She has stated that the incident is of one and half years back and it was a night of full moon. She and the others were sleeping in the veranda and at midnight on hearing the groaning of her brother, she woke up and saw her brother lying on the ground and Durja and Madho Baraik fleeing away. When she went near her brother, she found him dead. In cross-examination, she has deposed that her sisters in-law had woken up earlier than her. She had got up and went straight to her brother who was dead by then. P.W.4 Surjan Baraik has proved his signature as well as the signature of Jitbahan on the inquest report which have been marked as Exhibit 1 and 1/1 respectively. P.W.5 Dr. Krishnadeo Choudhary was posted as a Medical Officer in Sub-Divisional Hospital, Simdega and on 30-07-1991, he had conducted autopsy on the dead body of Mangra Baraik and had found the following: External injury- (i) One sharp cut wound (stab-wound) measuring about 1½” x 1”x deep up to left lung tissue situated about 1” to 1½” below left mammary gland. (ii) One sharp cut wound (incised) measuring about 1” x ½” x skin deep situated on the left wrist joint on the radial side of left-hand injury. Internal injury- (i) On opening the wound fracture of 5th and 6th rib of the left side of chest wall, the intercoastal muscles, vessels, nerves were incised. On opening the thorax, clotted blood was present in plural cavity about two liters in amount. Lower lobe of left lung shows an incised wound 1” deep into the lung tissue. There 4 | P a g e were also hemorrhage inside the left lung. The cause of death was opined to be on account of profuse hemorrhage and from suffocation due to respiratory embarrassment on account of the presence of blood in the plural cavity. He has proved the post-mortem report which has been marked as Exhibit-2. P.W.6 Ramtahal Sahu has identified his signature on the seizure list of blood-stained soil and blood-stained lungi which has been marked as Exhibit 1/2. The seizure list has been proved and marked as Exhibit-3. P.W.7 Mahipal Sahu has proved his signature upon the seizure list of blood-stained soil, a lungi and one handkerchief which has been marked as Exhibit-1/3. P.W.8 Lagnu Baraik did not support the case of the prosecution and was declared hostile by the prosecution. P.W.9 Jitbahan Sao has proved his signature on the fardbeyan which has been marked as Exhibit-1/4. P.W.10 Lohan Lugun has proved the formal FIR which has been marked as Exhibit-4. P.W.11 Narain Mahto has proved the endorsement on the fardbeyan which has been marked as Exhibit-5. P.W.12 John Lakra has proved the fardbeyan which has been marked as Exhibit-6. 6. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder. 7. It has been submitted by Mr. Anupam Anand, learned amicus curiae that there are no eyewitnesses to the incident and the only incriminating circumstance is of the appellant fleeing away from the place of occurrence. The Investigating Officer has not been examined which has caused prejudice to the defence. 8. Mrs. Kumari Rashmi, learned A.P.P. has submitted that it was the appellant who had committed the murder as his presence at the place of occurrence with a knife suggests apart from fleeing away from the place of occurrence. It has been submitted that it was a moonlit night and since the appellant was known to the witnesses, the identity 5 | P a g e of the appellant as the assailant was beyond any reasonable doubt. 9. We have heard the learned counsel for the respective sides and have also perused the trial court records. 10. The only material witnesses of the prosecution are P.W.1, P.W.2 and P.W.3. So far as P.W.3 is concerned, she is not an eyewitness to the murder as in her cross examination, she has deposed that when she went near her brother, he was already dead by then. Although, P.W.1 and P.W.2, who are the wives of the deceased have stated in their examination-in-chief of having seen the assault with a knife as well as seeing the appellant pulling away the knife from the ribs of the deceased but their cross examination reveals an entirely different story. P.W.2 in her cross examination has deposed that on hearing the sound of groaning, she had woken up and she and the others had gone near her husband and the accused persons had fled away by then. P.W.1 in her cross examination has stated about the accused pushing aside the deceased and fleeing away. She does not specify as to which of the accused had done such act but it has been inferred to be the appellant as the appellant has been assigned with the main role of striking a knife blow on the ribs of the deceased. P.W.1 has also stated that everyone were in deep slumber and suddenly getting up startled would need some moment to activate the brain and think rationally, but the evidence of P.W.1 and P.W.2 gives a picture contrary to the natural human reaction in such a scenario. Moreover, though as per P.W.1, P.W.2 and P.W.3 the moon was in full bloom but we cannot lose sight of the fact that it was the dead of night when the incident had occurred and the same seems to have happened at the blink of an eyelid. The learned trial court has already dealt with the case of co-accused Durja Singh from a different perspective as he was not alleged of committing any overt act, though his presence has been noted by P.W.1, P.W.2 and P.W.3 at the place of occurrence and he was given the benefit of doubt. On a broader conspectus, there does not seem to be any serious distinguishing features in the case of the present appellant to that of the accused who has been given the benefit of doubt coupled with the fact that none of the articles seized 6 | P a g e were sent to F.S.L. to derive the connection between the appellant and the murder so committed as well as the normal human reaction being absent as per the evidence of P.W.1, P.W.2 and P.W.3. The appellant, in such circumstances, deserves to be given the benefit of doubt as well. 11. We, therefore, on the basis of the discussions made hereinabove, set aside the judgment and order of conviction and sentence dated 22- 06-1996 passed by Sri Jaywant Tiru, learned Additional Sessions Judge, Simdega in S.T. No. 65/1992. 12. This appeal is allowed. 13. Since the appellant is on bail, he is discharged from the liability of his bail bonds. 14. Pending I.A.s, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi Dated the 14th Day of January, 2025 Preet/N.A.F.R.