D.N.PATEL,J. - (1.) THE present appeal is arising out of judgment of conviction and order of sentence passed by Additional Judicial Commissioner, Ranchi in Sessions Trial No. 519 of 1990, whereby the learned trial court vide judgment of conviction and order of sentence dated 27.08.1993 /02.09.1993 has convicted and punished the appellant/accused mainly for the offence punishable under section 302 of the I.P.C. for life imprisonment and he has also been punished for the offence under section 201 of the I.P.C,. but no separate sentence has been awarded for the offence under section 201 of the I.P.C. Against this judgment of conviction and order of sentence, the present appeal has been preferred by the appellant.
(2.) IT is the case of prosecution that one Smt. Budheshwari Devi lodged an FIR on 17.01.1990 at about 7 p.m. that her husband, namely, Narayan Bhokta had gone to Gudidih on 17.01.1990 at about 13 hours on last Sunday and from there he had gone to Village Jonha Toli and then he left her in village Jonha Toli and went to visit a fare at Gautam Dhara. When her husband not returned from the fare, her younger brother Chandramohan Munda went in search for her husband at Gudidih but he could not find him out and on 17.01.1990 in the morning the informant came to know about the recovery of a dead body from a well then informant Budheshwari Devi went there and found that the body of her husband was recovered and his head was severed and had sustained multiple injuries. This F.I.R. was lodged by the wife of the deceased Budheshwari Devi. IT has also mentioned in the FIR that she suspected that her husband had illicit relations with one Balo Devi daughter of Chandra Bhokta and has also asserted that the some unknown persons killed her husband and concealed the dead body in a well. On the basis of FIR, the police recorded the statement of one Sri Budheshwar Munda @ Koria Munda ( P.W. 1) on 6th of February, 1990, who stated that he had seen the incident and his statement under section 164 of the Cr.P.C. was also recorded. Upon completion of investigation, charge sheet was filed and the sessions case was committed bearing S.T. No. 519 of 1990 and on the basis of prosecution witnesses, total 7 in number, and also looking to the depositions of defence witness nos. 1 and 2, the learned trial court has convicted and awarded the sentence of life imprisonment to the present appellant for committing murder of deceased Narayan Bhokta, under section 302 of the I.P.C. We have heard counsel appearing for the appellant who has mainly submitted that there are major omissions, contradictions and improvement in the case of the prosecution by the depositions of the prosecution witnesses. The so called , sole eye witness P.W. 1 , Budheshwar Munda @ Koria Munda is not at all an eye witness. Neither his name is referred in the FIR nor his statement under section 164 of the Cr.P.C. is proved by the prosecution and his statement was recorded after 20 days from the date of lodging of the FIR. FIR was registered on 17.01.1990 and the statement of so called eye witness was recorded on 6th February, 1990, under section 161 of the Cr.P.C. and thereafter under section 164 of the Cr.P.C.. He has not seen the dead body when it was recovered, because he was not present at all and he stated in his deposition that he has seen the dead body recovered from the well and he had identified also that he was the same person who was with the appellant/accused on the date of murder. But his presence at the time of recovery of the dead body or at the time of drawing the inquest-panchnama is not proved by the prosecution. The inquest- panchnama which is at Ext.-1 is drawn on 17.1.1990. The statement of the witness P.W. 1 was recorded on 6.2.1990 and this P.W. 1, so called eye witness, stated that he has seen the dead body. Nowhere, his presence was recorded while recording inquest-Panchnama . Thus, he is not a reliable witness at all. It is also submitted by the counsel for the appellant that there is no other eye witness of the incident. It is further submitted by counsel for the appellant that looking to the cross examination of this P.W. 1, upon whom the prosecution is relying upon, has stated in the cross examination that he has not seen the place of incident and whatever he has stated, has stated only upon the insistence of the police. Thus, looking to the cross examination of P.W. 1, he is a tutored witness, not an eye witness at all and he is untrustworthy and unreliable . It is further submitted by the counsel for the appellant that P.W. 2 has turned hostile and looking to the other prosecution witnesses, they have not seen the incident at all, they are the witnesses on inquest-Panchnama, seizure list and the doctor P.W. 7 is also a formal witness. It is further submitted by the counsel for the appellant that looking to the case of prosecution, P.W. 1 snatched away the deadly weapon from the hands of the appellant/accused after the murder had taken place and while running away, the deadly weapon was given to one blind man, namely, Paitu Munda and this witness never examined as prosecution witness. This Paitu Munda has been examined as Defence Witness No. 1 and he has stated before the court that he was never handed over the weapon from P.W. 1. Thus, the so called eye witness P.W. 1, is never getting any support from any other witness. Thus, the sole eye witness is untrustworthy and unreliable and this aspect of the matter has not been properly appreciated by the learned trial court also and hence the judgment of conviction and order of sentence deserves to be quashed and set aside. We have heard counsel appearing for the State who has vehemently submitted that the case of the prosecution is based upon eye witness P.W. 1 Budheshwar Munda @ Koria Munda who has clearly narrated the whole incident in detail and stated that he had seen the incident, he has seen the appellant/accused causing murder of the deceased by a sharp cutting instrument. He had accompanied the deceased along with the appellant, he also taken liquor with him and after the appellant beheaded the deceased, he snatched away the weapon and ran away and he given the weapon to one blind man. The depositions of P.W.1 is getting enough corroboration by the medical evidence given by P..W. 6 who is Dr. Niranjan Minz. Moreover the dead body which has been recovered from the well, has also been identified by the P.W. 1 that it is the body of the same person who was with the appellant and with whom the P.W. 1 had gone. It is further submitted by learned A.P.P. that P.W.1 is reliable and trustworthy witness and there is no need of quantity of witness, looking to the quality of single eye witness. This aspect of the matter has been properly appreciated by the learned trial court and rightly the learned trial court has observed that the case of the prosecution is proved beyond reasonable doubt that appellant has committed murder of Narayan Bhokta. Therefore, the appeal, preferred, may not be entertained by this Court.
(3.) HAVING heard counsels for both the sides and looking to the evidences on record, it appears that the FIR was lodged by one Smt. Budheshwari Devi on 17.01.1990 at about 13 hours with Angara Police Station that her husband who had gone to fare at Gautam Dhara, has not returned. He had gone on last Sunday and on 17.1.1990, she came to know that one dead body recovered from a well nearby village Jonha. She rushed to the said place and found that the dead body was of her husband and his neck was separated from the body of the deceased. She had also stated in the FIR that she has suspicion that her husband had illicit relation with one Balo Devi daughter of Chandra Bhokta and therefore, he must has been murdered. This FIR has not given Exhibit number because Budheshwari Devi has expired as per deposition given of P.W. 7., neither the I.O. has been examined. We have also perused the depositions of the sole eye witness P.W. 1, namely, Budheshwar Munda @ Koria Munda. Looking to the depositions of this witness, it appears that he claims to be an eye witness. Nowhere his name referred in the FIR, nor any motive has been pointed out by this witness. Moreover, it further appears that the offence was registered on 17.01.1990 and the statement of so called eye witness was recorded under section 161 of the Cr.P.C. on 6.2.1990. His statement under section 164 of the Cr.P.C. has also been recorded on 6.2.1990. His so called statement before the concerned magistrate, has not been proved because no magistrate has been examined to prove the statement recorded under section 164 of the Cr.P.C. Moreover, looking, closely, to the depositions of P.W. 1, it appears that though he has not seen the dead body recovered from well, he has stated that he has seen the dead body and it was of the same person who was found with the appellant/accused and he also accompanied both of them and had consumed some liquor. The dead body was recovered on 17.01.1990. Looking to the inquest report at Ext-1, which has been proved by deposition of P.W. 3 on the same day, P.W. 1 was not present before the police, otherwise his statement would have been recorded on the very same day. Thus, he is not trustworthy and he is not reliable witness. Moreover, looking to the cross examination of this witness, he has categorically stated that he has not seen the place of offence and he has given the deposition because of insistence of the police. Thus, he is a tutored witness. Thus, looking to the over all depositions of this sole, so called, eye witness, P.W. 1, it inspire no confidence and there is no corroboration at all to the deposition of P.W. 1. It is further stated by P.W. 1 that he has snatched away the sharp cutting instrument from the hands of the accused immediately after the murder was committed by him of Narayan Bhokta and he had ran away with the weapon and while running , he has given this weapon to one blind man. This blind man was never examined by prosecution. The blind man to whom, weapon was given by P.W. 1 is examined as Defence Witness No. 1, Paitu Munda and he has not supported the case of prosecution. Thus, looking to the deposition of P.W. 1, there is no corroboration by any other depositions of the prosecution witnesses. Thus, the sole eye witness, upon whom, the prosecution is relying, is not trustworthy and he is unreliable. This aspect of the matter, has not been properly appreciated by the learned Trial Court. We, therefore, quash and set aside the judgment of conviction and order of sentence passed on 27.08.1993 and 02.09.1993 respectively by Additional Judicial Commissioner, Ranchi in Sessions Trial No. 519 of 1990. The appellant/accused is already on bail by suspension of sentence order dated 16th December, 1993. The by this Court vide prosecution, has failed to prove the offence committed by the appellant beyond reasonable doubt. The appeal is allowed and disposed of. The appellant is discharged from the liability of his bail bond. ;