Jharkhand High Court
Bindeshwar Nayak ? Naik & Anr vs State Of Jharkhand on 2 February, 2016
Author: D. N. Upadhyay
Bench: Ratnaker Bhengra, D. N. Upadhyay
Cr. Appeal (DB) No.1416 of 2004
with
Cr. Appeal (DB) No.1812 of 2004
(Against the judgment of conviction and order of sentence dated
18.08.2004and 20.08.2004, respectively, passed by the Learned Additional Judicial Commissioner, Fast Track Court No. III Ranchi, in Sessions Trial Nos. 629 of 1993/515 of 1997, corresponding to G.R. Case No. 288 of 1993 arising out of Jagarnathpur P.S. Case No. 11 of 1993) Gouri Nayak, son of Shiv Lal Nayak, resident of village Tundul, Police Station Jagannathpur, District-Ranchi.
(in Criminal Appeal (DB) No. 1416 of 2004) .... Appellant
1. Bindeshwar Nayak @ Naik, son of Shivlal Nayak
2. Gurucharan Nayak @ Naik, son of Ram Keshwar Nayak, both residents of village Tundul, Police Station-Jagannathpur, District-Ranchi.
(in Criminal Appeal (DB) No. 1812 of 2004)
.... Appellants
Versus
The State of Jharkhand ..... Respondent
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PRESENT :- HON'BLE MR. JUSTICE D. N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant :- Mr. A.S.Dayal, Advocate
Ms. Supriya Dayal, Advocate
For the State :- Mr. Aseemdudden, A.P.P.
(In Cr.Appeal(DB) 1416 of 2004)
:- Mr. Nehru Mahto, APP
(In Cr.Appeal(DB) 1812 of 2004)
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By Court
1. These criminal appeals have been directed against the judgment of conviction and order of sentenced dated 18.08.2004 and 20.08.2004, respectively, passed by the Learned Additional Judicial Commissioner, Fast Track Court No.III, Ranchi, in connection with Sessions Trial No. 629 of 1993/515 of 1997, corresponding to G.R. Case No. 288 of 1993, arising out of Jagarnathpur P.S. Case No. 11 of 1993, whereby the appellants have been held guilty for the offence punishable under Sections 302/34 of the I.P.C and sentenced to undergo rigorous imprisonment for life. Initially the appellants were charged for the offence punishable under Sections 302/34, 307/34 & 324/34 of the I.P.C. and Sections 3 & 5 of Explosive Substance Act, but they stood acquitted for the offence punishable under Sections 307/34, 324/34 and Sections 3 & 5 of Explosive Substance Act.
The prosecution case, in brief, is that deceased Laxmi Sahu @ Lichhiya had gone to the house of informant to drop his Son Jainath Sahu on 30.01.1993. On the following morning i.e. on 31.01.1993 at about 8 A.M. Laxmi Sahu proceeded on his Heromajestic moped in order to return home but his friend Jainath also joined to give him company up to the end of village. When the deceased along with Jainath reached near the house of Ganesh Naik, the informant heard sound of explosion. It is disclosed that the informant was also following his son Jainath Naik at that point of time. Due to explosion of bomb, Hero Majestic Moped, on which Laxmi Sahu @ Lichhiya was moving, got damaged and Lichhiya fell down. He wanted to flee away but overpowered by the appellants who inflicted blows by means of Balua and Knife and killed Lichhiya at the spot. Jainath also sustained some injuries but he had succeeded to flee away from the place. On the basis of Fardbeyan given by Dhani Naik, Jagarnathpur P.S. Case No. 11 of 1993 dated 31.01.1993, under Sections 147,148,149,307,324 and 302 of the I.P.C. was registered. The police, after due investigation, submitted charge-sheet against all the three appellants showing Ganesh Naik and Ram Keshwar Naik as absconder in column 2 of the charge-sheet in red ink. Cognizance was taken and the appellants were put on trial after framing of the charge. To substantiate the charge, the prosecution has examined altogether four witnesses including informant. The Additional Judicial Commissioner, placing reliance on the evidences and documents available on record, held the appellants guilty for the offence punishable under Sections 302/34 of the I.P.C., but acquitted them for the offences punishable under Sections 307/34, 324/34 and Sections 3 & 5 of Explosive Substance Act.
3. The appellants have assailed the impugned judgment on the ground that no independent witness has come forward to support the prosecution case. The I.O has not been examined to prove the place of occurrence. The place of occurrence described by P.Ws. 1 and 2 is not consistent. The genesis of occurrence and manner of assault, as disclosed by P.Ws. 1 and 2, are also not consistent. According to P.W.1-Dhani Nayak, the deceased had come to drop Jainath Naik (son of the informant) on 30.01.1993 and he had spent night in the house of informant. On the following morning at about 8 A.M. while Laxmi was returning on his Hero Majestic Moped, the occurrence took place near the house of Ganesh Naik. But according to P.W.2-Ratan Devi, the deceased had been to her house on 31.01.1993 for purchasing Chicken and after that he was returning and then the occurrence took place when he reached near the house of Ganesh Naik. Both the witnesses have not described the entire episode and that indicates that they had not seen the occurrence but projected themselves as eye witnesses. The occurrence took place within the village, but no independent witness has come forward to support the prosecution case. Since I.O. has not been examined, incriminating articles available at the place of occurrence were not seized. The description of the place of occurrence could not be brought on record. The statement of P.Ws. 1 and 2 is in consistent on the point of manner of assault. The learned Trial Judge has failed to consider the points raised by the appellants during trial and the findings are not based on sound reasoning. The discussion of the evidences available on record is also incorrect.
4. The learned A.P.P. has opposed the arguments.
5. From perusal of the record, we find that in a case of such serious nature, prosecution has not discharged its obligations properly. The independent witnesses have not been examined. According to Fardbeyan and evidence of informant, Jainath Naik was accompanying the deceased, but he did not come forward to support the prosecution case. As per the statement of P.W.1, the deceased was returning on his Hero Majestic Moped, when he reached near the house of Ganesh Naik, there was explosion of bomb. The informant did not say as to who hurled bomb on the deceased. After Hero Majestic Moped belonging to deceased got damaged, he started fleeing but could not succeed and overpowered by the appellants. He was inflicted with blows by means of Balua and Knife by the appellants and died on the spot. The remenance of bomb were seized and sent to FSL for its chemical examination. The report received from FSL is available on record but it is not proved. What we wish to bring on record is that the prosecution has failed to prove genesis of occurrence, place of occurrence and manner of assault. According to P.W. 1, the deceased had been to his house to drop Jainath Naik. The deceased spent his night in the house of informant and on the following morning he was returning back to his village on his Hero Majestic Moped. Jainanth Naik joined him in order to extend company up to the end of the village. When they reached near the house of Ganesh, suddenly bomb was exploded and thereafter, the appellants killed Lichhiya at the spot by causing injuries by means of Balua and knife. This fact does not find corroboration from the evidence of P.W.2. She says that the deceased had been to her house for purchasing Chicken and the occurrence took place while he was returning. Both the witnesses are silent as to how the occurrence commenced and who hurled bomb from which directions. Initially, they have stated that the occurrence took place near the house of Ganesh Naik, but in course of examination they have stated that place of occurrence was situated near the house of Yogendra Munda. Since the witnesses have failed to pin-point the place of occurrence, non- examination of the I.O. becomes fatal. Explosive Substance was used for causing injury, but the prosecution has failed to prove the offence punishable under Sections 3 & 5 of Explosive Substance Act.
6. The charges under Sections 3 & 5 of Explosive Substance Act have not been substantiated by the prosecution and therefore, the manner of occurrence as described by the witnesses stood uncorroborated. P.Ws. 1 and 2 both are relatives of Jainath Naik and they are highly interested witnesses because they were having land dispute with the appellants from before.
Besides the above, non-examination of the independent witness is equally important and that has caused damage to the prosecution case. The most important witness Jainath Naik, who had been accompanying the deceased at the time of occurrence, did not come forward to support the prosecution case.
7. Considering all the aspects of the matter, we do not find that impugned judgment of conviction and order of sentence is sustainable and accordingly the judgment of conviction and order of sentences dated 18.08.2004 and 20.08.2004, respectively, passed by the Learned Additional Judicial Commissioner, Fast Track Court No. III Ranchi, in Sessions Trial Nos. 629 of 1993/515 of 1997, corresponding to G.R. Case No. 288 of 1993 arising out of Jagarnathpur P.S. Case No. 11 of 1993 stands set aside and the appeals stands allowed. The appellants namely, Bindeshwar Nayak @ Naik and Gurucharan Nayak @ Naik who are on bail, are discharged from the liabilities of their bail bonds and set at liberty. The appellant Gouri Nayak, who is in jail custody, is directed to be released forthwith from jail custody, if not wanted in any other case(s) and for that appropriate direction may be issued, if necessary, by the convicting/successor Court.
(D. N. Upadhyay, J.) (Ratnaker Bhengra, J.) High Court of Jharkhand at Ranchi, Dated, the2nd day of Feburary, 2016, SD/Amar/ N.A.F.R.