Jibi Honhaga vs State Of Jharkhand

Rajesh Kumar, J

Heard Mr. Rohit Ranjan Sinha, learned Amicus Curiae, appearing for the appellant and Mrs. Nehala Sharmin, learned Special P.P.

The present appeal is directed against the Judgment of conviction dated 16.10.2003 and order of sentence dated 17.10.2003, passed by learned Additional Sessions Judge, Fast Track Court – II, Chaibasa, in Sessions Trial No.114 of 2003, arising out of Goilkera P.S. Case No.10 of 2003, corresponding to G.R No.118 of 2003, whereby the appellant has been convicted for the offence under Section 304(II) of the Indian Penal Code (IPC) and has been directed to undergo rigorous imprisonment for seven years .

The criminal law has been put into motion by lodging an F.I.R being Goilkera P.S. Case No.10 of 2003 against the sole appellant. The F.I.R has been lodged on the fardbeyan of informant namely, Songo Barjo (P.W.-2).

The brief facts of the case is that on 26.05.2003 at about 2:00 a.m., wife of the informant had awaken the informant and said that what was going on as someone is calling him. After that he reached and saw that his neighbour Ramsai Honhaga was sitting in his angan. He asked that what happened then he said that “Uski Patni Mar Diya Ab Nahin Bachenge, Pani Pilao”. Then he returned to his house for bringing water and when they reached there with water, Ramsai Honhaga was lying in the angan of Buka Barjo. The informant gave water to Ramsai Honhaga, till then, other villagers were gathered there. Informant saw after lighting that blood was oozing from his hand, leg and his intestine was protruded. Then informant brought 'Chadar' and covered the abdomen of the Ramsai Honhaga. According to the decision of the villagers, the father of Ramsai Honhaga was informed by sending a messenger namely, Reno Surin. At about, 7:00 a.m., father and brother of Ramsai Honhaga came. Ramsai also told them that his wife, Jibi Honhaga, has assaulted him with 'Basila' when he was sleeping in night. Ramsai was alive till then and later on he died. The villagers brought the dead body of Ramsai Honhaga along with his wife Jibi Honhaga to the police station and the statement of Songo Barjo was recorded there. Songo Barjo had made his statement in mundari language, which was translated in Hindi and proved by Mangra Dang.

On the basis of said allegation, the police, after investigation, has submitted charge-sheet against the sole accused. Upon which cognizance has been taken and charge has been framed on 18.07.2003 under Section 302 I.P.C and the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried.

To substantiate the charges, the prosecution has examined altogether 11 witnesses.

P.W.-1, Mangra Dang, is the neighbour, and he has proved the signature on the F.I.R.

P.W.-2, Songo Barjo, is the informant and he has stated that the deceased, before death, has stated that the fatal blow has been given by his wife. In his cross-examination, he has stated that the children and the accused were inside the house and treatment could not be provided to the deceased due to lack of arrangement.

P.W.-3, Rutia Honhaga, is father of the deceased and he has stated that on his arrival, the deceased died. In cross-examination, he has admitted that there was no communication with the deceased as the deceased was unable to speak.

P.W.-4, Guju Honhaga, is the brother of the deceased and he has stated the same thing. He has been informed regarding the fatal blow upon the deceased by his wife. He has accepted in the cross-examination that the deceased was not in a position to speak.

P.W.-5, Mako Surin, is the co-villager and he has stated the same thing and he has also admitted that the deceased was not in a position to speak and further, the wife of the deceased is mentally ill.

P.W.-6, Ramsai Borda, is the nephew of the deceased and he has also stated the same thing and admitted in the cross-examination that the deceased was not in a position to speak.

P.W.-7, Etwa Kandulnai, is also a co-villager and he has been declared hostile.

P.W.-8, Buka Barjo, is the co-villager and he is not the witness to the incident rather he is witness to the injury caused to the deceased.

P.W.-9, Jagmohan Hansda, has also admitted that the deceased was not in a position to speak.

P.W.-10, Dr. Murli Manish, is the doctor, who conducted the post-mortem and he is witness to the injury, caused by sharp cutting object and the death of the deceased is homicidal in nature.

P.W.-11, F. X. Bara, is the investigating officer and he has supported the investigation. He has stated that he has seized the blood stained saree, weapon of crime and a mat, but the said seized articles have not been sent for forensic examination.

The trial Court, after evaluating the evidence and the materials brought on record, has convicted the present appellant under Section 304(II) I.P.C and sentenced her to undergo rigorous imprisonment for seven years.

Thus, the only material available against the appellant is the evidence of P.W.-2, informant.

It has been submitted by the learned counsel for the appellant that all the witnesses have admitted that the deceased was not in a position to speak and as such it is nothing, but repetition of a story, formulated by P.W.-2, which has been repeated by each and every witnesses. Even the statement given in the cross-examination he has stated that the victim was not in a position to speak, the statement of the witnesses in-chief, gets negated. So far as the prosecution witness No.2 is concerned, the deceased has stated nothing to him and only after giving water, he has stated in Ho language. Further, in his cross-examination, he has admitted that he has reached the place of occurrence on raising hulla by the deceased, but in view of the fact that the deceased was not in a position to speak, the very fact that he has reached the place of occurrence on hulla, is not reliable. Further, the children were present in the house, as per the evidence of P.W.-2, but none of them, have been examined even by the I.O. Thus, the evidence of P.W.-2 cannot be relied upon.

In view of above evidence available on record, it has been submitted that virtually there is no reliable evidence, connecting the present appellant with the crime.

Per contra, learned Special P.P has submitted that there is enough material, connecting the present appellant with the crime. The death of the deceased is homicidal in nature and further, it was within the house. It has further been submitted that the deceased before his death has stated that he has been assaulted by his wife.

Having heard learned counsel for the parties and from perusal of the record, this Court finds that as per the investigating officer, he has seized the blood stained saree, weapon of crime and mat, but nothing has been sent for forensic examination. The only material available against the appellant is the eye witnesses, who have stated in their chief that they have been informed by the deceased that a fatal blow has been given by his wife, but the fact remains that in cross-examination, they all have admitted that deceased was not in a position to speak.

Only P.W.-2, in his cross-examination, has stated that he had conversation with the deceased, but he has reached at the place of occurrence on the raising hulla by the deceased, but it is admitted position that the deceased was not in a position to raise any hulla. Thus, there is enough arena of doubt and in such doubtful condition, the conviction of the appellant, under Section 304(II) I.P.C., is not sustainable.

In  view  of  above  discussion  and  the  materials available on record, the judgment of conviction dated 16.10.2003 and order of sentence dated 17.10.2003, passed by learned Additional Sessions Judge, Fast Track Court – II, Chaibasa, in Sessions Trial No.114 of 2003 is, hereby, set aside.

The appellant is on bail, hence, she is discharged from the liability of bail bond.

In the result, the appeal stands allowed.

Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.