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Judgment
P.W-1,Shiv Charan Murmu,He is the  Hearsay witness  of the occurrence.
P.W-2,Khepu Manjhi,He is the Hearsay witness.
P.W-3,Kandri Murmu,"She is the daughter of deceased Duli Murmu. She deposed
that her mother told her that Guru Murmu and Kandu Murmu
had assaulted her.
P.W-4,Thakur Hansda,"He is the son-in-law of deceased Duli Murmu and is
informant of this case. He deposed that his mother-in-law had
told him that Guru and Kandu had assaulted her.
P.W-5,Dr. J.Srinivas Rao,"He is the Doctor who has conducted the Post-mortem of the
dead body of Duli Murmu and has proved the Postmortem
report i.e marked as Ext.1
P.W-6,Subhash Murmu,"He had seen Duli Manjhain (deceased) coming out from the
house of Kandu.
clearly mentioned by P.W.4 that deceased, who was mother-in-law of the informant, received injuries by hard and blunt substance from this appellant",,
and another accused. He rushed at the place of occurrence hearing the voice of the deceased and he had also given water to the deceased. Thus, the",,
deceased was able to speak with the informant- P.W.4. The deceased had also stated before P.W.4 that this appellant and another accused have,,
caused injury upon the body of the deceased.,,
● It is further submitted by learned A.P.P. appearing on behalf of the State that P.W.3 has also clearly narrated the whole incident. She is a daughter,,
of the deceased. Both these witnesses i.e. P.W.3 and P.W.4 have proved the place of occurrence, time of occurrence, manner of occurrence and",,
there is no question of mis-identity of this appellant-accused. This aspect of the matter has been properly appreciated by the learned trial court.,,
● It is further submitted by learned A.P.P. appearing on behalf of the State that the medical evidence given by P.W.5 is corroborative to the,,
depositions given by P.W.3 and P.W.4.,,
● It is further submitted by learned A.P.P. appearing on behalf of the State that P.W.1 has also clearly narrated the whole incident. P.W.1 is an,,
independent witness. This witness has also proved the place of occurrence, time of occurrence and also the factum that this appellant has caused",,
injury upon the body of the deceased. Thus, no error has been committed by the learned trial court in appreciating the evidences of the prosecution",,
witnesses and, hence, this criminal appeal may not be entertained by this Court.",,
REASONS:,,
Having heard learned counsels for both the sides and looking to the evidences on record, we hereby quash and set aside the judgment and order of",,
conviction and sentence passed by learned Additional District & Sessions Judge, F.T.C.-VI, East Singhbhum, Jamshedpur in Sessions Trial No. 373",,
of  2008 dated 27  th August, 2010 and 31  st August, 2010 respectively mainly for the following facts, reasons and judicial",,
pronouncements:,,
(i) The prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. There are major omissions and,,
contradictions in the depositions of the prosecution witnesses which have not been properly appreciated by the learned trial court.,,
(ii) P.W.4 is the informant and son-in-law of the deceased. We have perused the First Information Report as well as the deposition given by,,
P.W.4. There are major contradictions in his deposition. As per the First Information Report, he has narrated that he rushed at the place of",,
occurrence which is a road and the deceased had stated before him that this appellant and another accused had caused injury by “Thengaâ€,,
(wooden stick- hard and blunt substance) and he had given water to the deceased on the road, whereas, as per his deposition before the learned trial",,
court, looking to his examination-in-chief he has not stated that the deceased had given names of two accused, who have caused fatal injuries to the",,
deceased. This is a major contradiction in his deposition which has not been properly appreciated by the learned trial court. (iii) Looking to further,,
deposition of P.W.4, it appears that the place of occurrence has also been changed by P.W.4. Moreover, the Investigating Officer has not been",,
examined by the prosecution which has deprived this appellant to prove further contradictions, omissions and material improvements.Â",,
(iv) Looking to the deposition of P.W.4 especially cross-examination, he has narrated that his mother-in-law came at her house and, thereafter, she",,
died immediately and in the last paragraph of the cross-examination he has stated that when police came the dead body was on the road. The,,
prosecution has failed to prove how the dead body was shifted from house to road. This aspect of the matter has also not been properly appreciated,,
by the learned trial court. P.W.4 is a highly interested witness in conviction of this appellant. He is son-in-law of the deceased. Thus,",,
P.W.4 is untrustworthy witness and he is not a reliable witness. Moreover, there are major discrepancies in the depositions of P.W.1 and P.W.4.",,
Similarly, there are major differences in the depositions of P.W.3 and P.W.4.",,
(v) Looking to the deposition given by P.W.3, she is a daughter of the deceased and highly interested witness in conviction of this appellant. Moreover",,
looking to her deposition, she has changed the place of occurrence. She has stated in her examination-in-chief that the deceased expired in the house",,
after drinking water, whereas, she has stated in cross-examination that when police came the dead body was on the road. This aspect of the matter",,
has also not been properly appreciated by the learned trial court. Looking to cross-examination of P.W.3, it appears that she is also not the eye",,
witness of the occurrence and she is untrustworthy and unreliable witness.,,
(vi) Looking to the deposition of P.W.1, it appears that he is a co-villager and his narration of the occurrence is different than what is stated in the",,
First Information Report. Looking to the deposition of P.W.1, the whole incident has taken place at the house of this appellant which is a free fight and",,
thereafter the deceased came on road where she expired, whereas, looking to the depositions of P.W.3 and P.W.4, the deceased had returned to her",,
house where she expired after drinking water. Thus, the place of occurrence is differently narrated by P.W.1, P.W.3 and P.W.4 .",,
(vii) Investigating Officer has not been examined by the prosecution. Looking to the peculiar facts of the present case especially what is narrated by,,
the prosecution witnesses about the place of occurrence and blood stain etc., the examination of the Investigating Officer was must in this case. In",,
fact, it was the duty of the prosecution to bring Investigating Officer before the learned trial court. Non-examination of the Investigating Officer is",,
fatal to the prosecution.,,
(viii) It is now high time for the learned trial court that even after issuance of the notice if the Investigating Officer is not coming to the court, the",,
learned trial court should pass an order to stop payment of salary or pension so that immediately witnesses will come to the court. It has become,,
fashion in the State not to examine Doctor and/or not to examine the Investigating Officer. This situation could have been avoided by strict orders,,
passed by the learned trial court. If the prosecution is failing to perform their duty, the trial court cannot be a silent spectator. Whenever any",,
Investigating Officer or Doctor, after issuance of summon, is not coming to the trial court in Sessions cases where their presence is must as a witness,",,
we hereby direct the trial court to pass an order to stop payment of salary of the Investigating Officer as well as of the Doctor and if they have,,
retired, the trial court should stop payment of their pension. It has been held by the Division Bench of this Court in the case of State of Jharkhand v.",,
Sanjay Mondal reported in 2013 (4) JLJR 157 that whenever any Investigating Officer or any doctor is not coming to the court to give evidence, the",,
trial court can pass an order to stop the payment of salary or pension of Investigating Officer or Doctor or other Government Officers, who are",,
avoiding to give evidence in court, after summons are issued for their presence. The aforesaid decision was challenged before the Hon'ble Supreme",,
Court by way of Special Leave to Appeal (Crl.) Nos. 5590-5591 of 2013, which was dismissed vide order dated 26th July, 2013.Â",,
(ix) It has been held by the Hon'ble Supreme Court in the case of Raju v. State of T.N. , reported in (2012) 12 SCC 701Â in paragraph 24 , which",,
reads as under:,,
“24. For the time being, we are concerned with four categories of witnessesâ€"a third party disinterested and unrelated witness (such as a",,
bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of,,
the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the,,
victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorisation of a",,
witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness",,
having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a,,
third party disinterested and unrelated witness. This is all that is expected and required.†     (emphasis supplied),,
(x) It has been held by the Hon'ble Supreme Court in the case of Mohd. Ishaque v. State of W.B., reported in (2013) 14 SCC 581Â in paragraphs 15",,
and 17, which read as under:",,
“15. In Hari Obula Reddy v. State of A.P., this Court laid down certain broad guidelines to be borne in mind, while scrutinising the evidence of the",,
eyewitnesses; in para 13 of the judgment, this Court held as follows: (SCC pp. 683-84)",,
“13. … But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for,,
discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction,,
unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested,,
witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically",,
reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the",,
matter of appreciation of evidence, no hard-and-fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a",,
partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the",,
material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the",,
natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a",,
prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and",,
free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be",,
found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the",,
main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from",,
independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that",,
these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all",,
situations.â€,,
In this respect, reference may be made to the judgment of this Court in Jaishree Yadav v. State of U.P.wherein this Court held that whether",,
witnesses are interested persons and whether they had deposed out of some motive cannot be the sole criterion for judging credibility of a witness, but",,
the main criterion would be whether their physical presence at the place of occurrence was possible and probable.†        (emphasis,,
supplied),,
(xi) It has been held by the Hon'ble Supreme Court in the case of Dhan Raj v. State of Haryana , reported in (2014) 6 SCC 745 in paragraph 16 ,",,
which reads as under:,,
“16. As per the statement of Raj Singh, the three accused had come asking for the deceased but in the absence of other corroborating evidence",,
and independent evidence, it is not established that the appellant-accused had abetted the coaccused Sanjay in the commission of the crime. Also it",,
can be the defence case that the said statement has been added as an afterthought to strengthen the case of the prosecution. We have found no,,
material on record which corroborated the statement of Raj Singh who is an interested witness. Furthermore, there is no other evidence which",,
indicates or establishes the presence of the appellant-accused near the place of commission of crime. Also, as noted by the trial court in the trial of",,
Badal, no footprints were found in the surrounding kutcha area where the body of the deceased was found.†         (emphasis",,
supplied),,
(xii) It has been held by the Hon'ble Supreme Court in the case of Arun Bhanudas Pawar v. State of Maharashtra, reported in (2008) 11 SCC 232Â",,
in paragraphs 24 and 25, which read as under:",,
“24. PW Sundarbai is an interested witness and her testimony without corroboration from independent witness including the medical officer cannot,,
be blindly accepted to prove that deceased Raju had regained consciousness when she met him in the hospital and named the appellant Arun to be an,,
assailant along with his two other associates who inflicted knife injuries on the body of the deceased. Her testimony cannot be accepted for another,,
reason that she has not stated in her statement recorded by the police under Section 161 of the Code of Criminal Procedure that before his death,,
injured Raju named the appellant as an assailant and it was for the first time in the Court that she made the said statement.,,
It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the,,
statement cannot be subjected to any crossexamination. In the present case, admittedly, the alleged dying declaration had not been made to any doctor",,
or to any independent witness, but only to the mother who, as stated above, arrived at the hospital only on the following day at about 3.30 p.m. when",,
Dr. Nitin had already operated Raju for his injuries and thereafter he was lying on the bed in unconscious condition with oxygen tubes having been,,
inserted in his nostrils. The prosecution has not brought on record any medical certification to prove that after operation the deceased was in a fit,,
condition to make the declaration before his mother. The evidence of alleged oral dying declaration by the deceased Raju to his mother PW Sundarbai,,
relied upon by the prosecution and accepted by the trial court and the High Court, in our view, was not cogent, satisfactory and convincing to hold that",,
deceased Raju before his death was in a fit condition to make oral declaration to his mother.         (emphasis supplied),,
 (xiii) Whenever any close relatives are giving depositions, the Court must view their depositions with all circumspection. In this case, P.W.3 and",,
P.W.4, both are close relatives of the deceased and there are major omissions and contradictions in their depositions, as stated herein above. These",,
aspects of the matter have not been properly appreciated by the learned trial court. Â,,
As a cumulative effect of the aforesaid facts, reasons and evidences on record, we hereby quash and set aside the judgment and order of",,
conviction and sentence dated 27th August, 2010 and 31st August, 2010 respectively, passed by learned Additional District & Sessions Judge, FTC-",,
VI, East Singhbhum, Jamshedpur in Sessions Trial No. 373 of 2008. The appellant namely Kandu Murmu @ Khandu Murmu, who is in custody, shall",,
be released forthwith, if not required in any other case.",,
Accordingly, this criminal appeal is allowed and disposed of.",,