Ledha Majhi and Others vs The State of Bihar (Now Jharkhand)

Cr.Appeal No. 69/97 is by A4,A7 and A8 in Sessions Case No. 288/95 on the file of Addl. Sessions Judge, Seraikella; Cr.Appeal No. 70/97 is by A2; Cr.Appeal No. 74/97 is by A6 and A5 and Cr. Appeal No. 99/97 is by A1, A3 and A9 in the said Sessions Case. The appellants in the above four appeals will be referred to as A1 to A9 in the order they were arrayed before the learned trial Judge for the sake of convenience and the following common judgment is delivered in the above appeals as they arise out of the common judgment in the said Sessions Trial.

The accused 1 to 9 were charged under Sections 396 and 412 IPC on the allegation that they removed 10 H.P. Kilosker Motor Pump and in the course of such removal, they caused the death of Bishwanath Prasad. The trial Judge, finding Subhash Mukherjee, A1; Bhawatosh Kumar Sharma, A2 and Rabi Majhi, A3 guilty u/s 396 IPC, sentenced each one of them to imprisonment for life while, the trial Judge found A4,A5,A6, A7,A8 and A9 guilty u/s 412 IPC and sentenced each one of them to 10 years R.I. The above appeals are against the said conviction and sentence.

The facts are as follows:

The 1st accused, Subhash Mukherjee was working as a Pump Operator at Kandra Juriya Bagicha Pump House. Rabi Manjhi, A3 was also a Pump Operator at the same place and they were working on shifts. On 11.04.95, Rabi Majhi was working as Pump operator and at 11 P.M. the 1st accused assumed duty from A3, Rabi Majhi. As Rabi Majhi could not go to his house at that odd hour he took his bed at the pump house. According to the prosecution, on 11.4.95 the 1st accused appeared before P.W.10, Ratan Lal Sinha at the police station and gave fardbeyan, Ext.3 stating that on the night of 10/11.4.95 some miscreants entered the pump house and removed the motor pump and also committed the murder of Bishwanath Prasad. The said fardbeyan, Ext. 3, was given by the 1st accused, was registered as an F.I.R, Ext. 1. The investigation was taken up by P.W.10 who conducted inquest over the body of Bishwanath Prasad by preparing inquest report, Ext.4. The body was sent to the hospital for autopsy.

On receipt of the requisition and the dead body, P.W.1, Dr. Yogendra Nath commenced autopsy on the dead body of Bishwanath Prasad at 2 P.M. on 11.4.95 and he found the following injuries :-

Incised wound:

(i) 10x9x7 c.m. transversally placed over front of neck cutting the scalp tissue, trachea and major vessels of neck.

(ii) Transversally placed wound over back of neck of 8x6x4 c.m. cutting the soft tissues and occipital bone lower most part and 1st shevical vertibera.

(iii) Evipitical wound over occipital scalp transversally place measuring 6x2 c.m. bone deep partially cutting the underlying bone.

Lacerated wound:- 2x1x1 c.m. over chain.

Abrasion: 2x1 c.m., 1x1 c.m., 5x1/2 c.m. over left leg and adjoining knee front."

The doctor issued Ext.1, the post mortem certificate with his opinion that the death is due to shock and haemorrhage and that the injuries could have been caused by an hard and blunt substance.

While the investigation was proceeding, it is the case of the prosecution that A1 to A3 appeared before P.W.2, Ratnesh Kumar Mishra and confessed their guilt and sought his help. According to the prosecution, thereafter the accused Al to A3 were arrested and 10 H.P. Kilosker motor pump was recovered from a pond. The final report was ultimately filed by the Investigating Officer. The appellants denied all the incriminating circumstances when they were put on them u/s 313 Cr.P.C.

Learned respective counsel appearing for the appellants submits that there is absolutely no legal evidence to connect any of the appellants/A1 to A9 with the crime and that the statements said to have been made by A1 to A3 to P.W.2 will not fall within the ambit of Section 24 of the Evidence Act as Al to A3 did not confess their guilt. In support of the said plea they took us through the evidence and in particular, the evidence of P.W.2. It is the further contention of the respective counsel that the evidence of the Investigating Officer that he recovered a motor pump during the course of investigation cannot also be accepted as there are suspicious features surrounding the said recovery. Counsel also submit that there is no evidence as regards the fact that the said motor pump that was removed from the pump house was the motor pump that was removed on the night of 10/11.4.95. On the above contention, we have heard learned Counsel appearing for the State.

The case of the prosecution is that 10 H.P. Kilosker motor pump was removed from the pump house on the night of 10/11.4.95 and while removing, the person who removed it also caused the death of Bishwanath Prasad, a security guard at the pump house. To establish the said fact, prosecution mainly relied upon the evidence of P.W.2. According to P.W.2, on 15.11.95, the accused 1 to 3 appeared before him and told him that the police are exerting pressure on them and that they will help in the recovery of the motor pump. The evidence of P.W.2 is only to the above effect. The above evidence of P.W.2 will not therefore, show that Al to A3 confessed their guilt by telling him that they are the persons who removed the motor pump on the night of 10/11/4/95. In the above circumstances, the evidence of P.W.2 is of no use to the prosecution. According to the prosecution, after the accused 1 to 3 gave such statement to P.W.2 they were taken to the Police station and that the motor pump was recovered by the police officer from a pond. This evidence of P.W.2 is not supported by P.W.10 as he has admitted that accused 1 to 3 were arrested after the recovery of the motor pump. If we accept the evidence of P.W.10 that the recovery of motor pump was at the earlier point of time and accused 1 to 3 were later arrested, then the evidence of P.W.2 that they appeared before him and gave statement is false. If we accept the evidence of P.W.2 that the accused sought his help and promised him to give help in recovering the motor pump then the evidence of P.W.10 becomes false. In any event, as we have stated earlier, there is no statement given by any of the accused which is inculpatory in nature for it to fall within the ambit of Section 24 of the Evidence Act. It is also worthwhile to remember that there is not only the contradiction as to when the motor pump was recovered but there is also no evidence as to what was recovered was actually the motor pump which was removed from the pump house on 10/11.4.95. Unless the prosecution establishes that the motor pump that was recovered was the motor pump which was at the pump house and that the same was recovered at the instance of the accused, then it cannot succeed. If it cannot succeed on this, it cannot also succeed and say that the appellants/accused 1 to 3 caused the murder of Bishwanath Prasad since, even according to the prosecution, Bishwanath Prasad was murdered by the persons who removed the motor pump.

We therefore, set aside the conviction and sentence of the accused/appellants by allowing all the appeals. It is reported that the 1st accused, Subhash Mukherjee is in jail. He shall be released forthwith, unless wanted in any other case(s). It is reported that rest of the appellants(A2 to A9) are on bail. They are discharged from their bail bonds.