Shivram Barik and Others vs State of Jharkhand

Virender Singh, C.J.—Appellants Shiv Ram Barik and his wife Sumitra Barik (to be referred to as ''accused'' only) faced the trial for the charge of Section 302/34 of Indian Penal Code for allegedly committing the murder of one Jagarnath Jyotishi, husband of PW-Subhadra Jyotishi on 21.10.2001. Their two sons were also booked along with them but being minor, their case was segregated and sent to Juvenile Court. Both the accused now stand convicted for the aforesaid charge vide impugned judgment and sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default thereof, rigorous imprisonment for three months. They have also been slapped with a fine of Rs. 10,000/- which is ordered to be released to PW-Subhadra Jyotishi, the wife of the deceased.

Mr. Tripathy, learned Senior Counsel, submits that accused Shivram Barik, by now, has undergone 12 years of his substantive sentence as he is in custody since the date of his formal arrest. However, accused Sumitra Barik is on bail as her substantive sentence was suspended by this Court in July, 2003.

The case of the prosecution in brief is as under:--

"PW-Subhadra Jyotishi got the formal FIR registered in Police Station Rajnagar on 22.10.2001 alleging therein that on 21.10.2001, certain persons of village had burnt tyres in course of chasing the errant elephant in the village and her husband was also burning tyre at his doorstep to frighten the errant elephant, when in the meantime accused Shivram Barik, armed with Tangi, his wife Sumitra Barik and two minor sons Meghan Barik and Jugal Barik appeared there. It is then alleged that accused Sumitra Barik and her two sons caught hold of the deceased and accused Shivram Barik assaulted him by Tangi causing several injuries which landed on neck, throat, chest and other parts of the body and when she tried to intervene, accused Meghan (minor) chased her to assault but she raised hulla which attracted her daughter. House of the accused is stated to be in front of the informant. The cause of murder projected is an old rivalry owing to some altercation, in common parlance (MAAR-PEET) which happened seven years ago. On these allegations, a case was registered under Section 302/34 IPC and investigated. After submission of challan, both the accused were charged under Section 302/34 IPC and faced the trial." 4. In support of its case, prosecution has examined the following witnesses:--

"PW-1 - Bhibhuti Bhushan Jyotishi

PW-2 - Shiv Kumar Jyotishi

PW-3 - Anand Mahto

PW-4 - Ashok Kumar Jyotishi

PW-5 - Dilip Kumar Jyotishi

PW-6 - Subhadra Jyotishi (Informant)

PW-7 - Anita Jyotishi

PW-8 - Manoranjan Jyotishi

PW-9 - Dr. Vinod Kumar Pandit

PW-10 - Hari Nandan Prasad (Investigating Officer)"

We do not feel the necessity of entering into a detailed discussion with regard to the entire prosecution case as Mr. Tripathy, learned Senior Counsel, has fairly stated that he will not be able to demolish the case of the prosecution with regard to involvement of accused Shivram Barik, who, according to prosecution, is the main accused and caused all the five injuries on the person of the deceased with a sharp edged weapon (tangi). In fact Mr. Tripathy has laid entire stress in segregating the case of accused Sumitra Barik from her husband stating that it appears that the complainant side has knitted a net wider not only to implicate accused Sumitra Barik but even her two sons in the present case by ascribing them the role of catching hold of the deceased. He submitted that if one looks at the injuries on the person of the deceased, which are not only five in number, but have covered the different part of the body, one of the injury even cutting the wind pipe also, the story of catching hold of the deceased by three accused appears to be most improbable on the face of it. Had three accused caught hold of the deceased as now put forth by the prosecution, this instead of facilitating the main accused Shivram Barik to cause injuries, would have created hindrance for him in assaulting the deceased with the weapon he was having in his hand. Learned Senior Counsel submitted that the wife of the deceased who approached the police on the next day, had sufficient time to involve all the family members by giving them a specific role of catching hold of the deceased. Learned Senior Counsel submitted that it cannot be always said that ascribing the role of catching hold of the deceased by itself is of a weak character, as it depends on each individual case, but in the present case when even two minor sons are not spared by the complainant side, it certainly creates doubt even about the participation of accused Sumitra Barik.

Learned Senior Counsel fairly submitted that although he is not holding the brief of two minor sons of the present accused as their case has been segregated for a separate trial by the Juvenile Court, but keeping in view the totality of the facts and circumstances of the present case and the manner in which the prosecution has developed its case by giving accused Sumitra Barik and her two sons the role of catching hold of the deceased, he, in his submissions, could not segregate the case of accused Sumitra Barik from her two sons atleast. He, thus, prays for acquittal of accused Sumitra Barik atleast of the charge of Section 302/34 IPC.

May be Mr. Tripathy, learned Senior Counsel, has not made any attempt to dislodge the prosecution case vis-�-vis accused Shivram Barik, who allegedly caused injuries on the person of the deceased, we have also rescanned the prosecution evidence once again and find that the prosecution has been able to prove its case beyond any shadow of doubt so far as involvement of accused Shivram Barik in the commission of the murder of deceased Jagarnath Jyotishi is concerned. There appears to be no reason to disbelieve PW-Subhadra Jyotishi, wife of the deceased and her daughter PW-Anita Jyotishi. However, with regard to involvement of accused Sumitra Barik, in our considered view, the prosecution case is not free from doubt.

The allegation against accused Sumitra Barik and her two sons (minors) is that they all had reached the place of occurrence and caught hold of the deceased. Admittedly, the house of the accused and the deceased is in front of each other. The case of the prosecution is that deceased had burnt tyre in front of his house to frighten the errant elephant and when he was sitting outside his house, at about 8.00 pm, the accused, who stays in front of his house, came with a Tangi. The motive projected for committing murder of the deceased is seven years old enmity, that too on account of some altercation (MAAR-PEET) ensued at that time. The motive is also not that strong. From all these facts one can comfortably gather that the main accused Shivram Barik would not take his entire family along to commit the murder of deceased who was incidentally sitting in front of his house on the fateful day. What appears to us is that the wife of the deceased who consumed reasonably good time to approach the police, could manage involving the entire family of accused Shivram Barik. This could be at the instant of some other persons also. One can understand that after the death of her husband, PW-Subhadra Jyotishi, the wife of the deceased, had no sympathy for any of the family members of the accused side, therefore, possibility of false implication of others alongwith the main accused cannot be ruled out.

We appreciate this aspect, yet from another angle. The injuries on the person of the deceased indicate that accused Shivram Barik had repeatedly caused several injuries on the different parts of the body of the deceased and these injuries could not be possible if anybody had caught hold of the deceased. This important aspect cannot be overlooked by us while appreciating the prosecution case in its entirety vis-�-vis the part ascribed to accused Sumitra Barik. We, thus, find no difficulty in holding that the prosecution has not been able to prove its case to the hilt against accused Sumitra Barik atleast.

After churning the entire prosecution evidence available on record once again in its right perspective, we are of the considered view that the case of the prosecution is not free from doubt so far as involvement of accused Sumitra Barik along with her husband Shivram Barik in the commission of main offence so as to hold her guilty with the aid of Section 34 IPC. We, thus, extend benefit of doubt to her and set aside her conviction and sentence as recorded by the learned trial court. However, conviction and sentence of her husband accused-Shivram Barik is hereby upheld.

Accused Sumitra Barik, who is stated to be on bail as her sentence was suspended during the pendency of the appeal, shall be discharged of her bail bonds.

The net result is that the appeal on hand stands partly allowed in the aforesaid terms.