Jharkhand High Court
Indal Ram vs The State Of Jharkhand on 21 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.268 of 2004
(Against the Judgment of conviction dated 28.01.2004 and order of sentence dated
29.01.2004, passed by the learned 5th Additional Sessions Judge, Palamau at
Daltonganj, in Sessions Trial No. 196/2000).
1. Indal Ram, son of Naresh Ram
2. Sunil Ram, son of Baban Ram
3. Naresh Ram, son of Late Aamir Chandra Ram
4. Yugeshwar Ram, son of Late Aamir Chandra Ram
5. Sarda Devi, daughter of Suresh Ram
6. Prabha Kumari, daughter of Suresh Ram
7. Lakhiya Devi, daughter of Late Sukhdeo Ram
8. Nirmala Devi, daughter of Lakhan Ram
9. Domni Devi, daughter of Late Tono Ram
All resident of village- Balha, P. S. Hariharganj, District- Palamau ..... Appellants
Versus
The State of Jharkhand ... Respondent(s)
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellants : Mr. Hemant Kumar Shikarwar, Advocate Ms. Shalini Kumari, Advocate Ms. Priyanka, Advocate Ms. Manimala, Advocate.
For the State : Mr. Gauri Shanker Prasad, Additional Public Prosecutor.
.....
By Court:- Heard, learned counsel for the appellants, Mr. Hemant Kumar Shikarwar, Advocate and Mr. Gauri Shanker Prasad, learned Additional Public Prosecutor, appearing for the State.
2. The present criminal appeal is directed against the judgment of conviction dated 28.01.2004 and order of sentence dated 29.01.2004, passed by the learned 5 th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 196/2000, whereby the these nine appellants have been convicted for offence committed and punishable under Section 304 part II read with section 34 of the Indian Penal Code and awarded rigorous imprisonment for three years and a fine of Rs.1,000/- each, in default of payment of fine, to further undergo Rigorous Imprisonment for six months.
3. The prosecution case is based upon fardbeyan of Chaturgun Yadav (P.W.7), recorded by Niranjan Kumar Singh, Sub- Inspector of Police, Hariharganj Police Station, Palamau on 05.09.1998, at about 5.00 P.M., wherein the informant has alleged, that on previous day (Friday) i.e. on 4.9.1998 at about 4.00 P.M., when the wife of the informant, Mohari Devi went to her maize crop field, for cutting grass, which was situated at a distance of ½ K.M. south from the house of the informant, where the wife of the informant saw, that co-villager Prabha Kumari, daughter of 2 neighbour Suresh Ram was pilfering their maize crop, who was caught hold by the wife of the informant. Upon which some altercation took place and quarrel started between the wife of the informant and Prabha Kumari. Thereafter, Domni Devi, Lakhiya Devi, Nirmala Devi, Sharda Devi, Indal Ram, Sunil Ram, Naresh Ram and Yugeshwar Ram came running there, having lathi and danda in their hands. After surrounding the wife of the informant, Mohari Devi, the accused persons assaulted her by means of lathi, danda, fists and slaps. On brawl, the informant also came running there, thereafter accused persons fled away and saw his wife was lying unconscious there and with the help of co-villagers, informant brought his injured wife to the house, who has sustained injuries on chest, back and waist, but because of night and lack of conveyance the wife of the informant was treated locally by local medicine and in the next morning the wife of the informant died before she could be admitted in hospital. The informant has claimed, that co-villagers have seen the occurrence and they will disclose the same on being asked, and occurrence took place because of pilfering of the maize crops, which was opposed by the wife of the informant, who was assaulted by the accused persons by means of lathi, danda, fists and slaps, with intention to kill.
4. On the basis of the fardbeyan of the informant, Police instituted First Informant Report bearing Hariharganj P. S. Case No. 33 of 1998, dated 05.09.1998, under Sections 147,341,323, 379 and 302 of the Indian Penal Code.
5. After investigation, the police submitted charge sheet vide charge sheet no. 7 of 1999, dated 06.02.1999, under Sections 147, 341, 323, 379 and 302 of the Indian Penal Code, against all the nine named accused persons.
6. The cognizance of the offence has been taken vide order dated 10.03.1999 and the case has been committed to the court of Sessions vide order dated 02.05.2000.
The learned trial Court has framed charge against all the nine accused persons on 24.01.2003, under Section 304/34 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial.
7. The prosecution, in order to prove its case, has examined altogether eleven witnesses and also exhibited a number of documentary evidences. Binod Yadav has 3 been examined as P. W. 1, Sahdev Yadav has been examined as P.W.2, Ram Prawesh Ram has been examined as P. W. 3, Jaggu Ram has been examined as P.W.4, Madan Yadav has been examined as P.W.5, Birkeshwar Ram has been examined as P. W.6 all these witnesses from P.W.1 to P. W. 6 are hearsay witnesses and Binod Yadav (P.W.1) is also inquest witness, who has proved his signature on the carbon copy of the inquest report as exhibit 1, Charturgun Yadav (informant of the case and husband of the deceased) has been examined as P.W.7, Umesh Kumar (son of the informant) has been examined as P. W. 8, he is a child witness and eye witness to the occurrence, Keshwer Ram (co-villager and hearsay witness) has been examined as P.W.9, Mithilesh Prasad Singh (Medical Officer) has been examined as P.W.10, who has performed autopsy of dead body on 6.9.1998 and proved the postmortem examination report, prepared by him with his signature on the same, which have been marked as exhibits 2 and 2/1 respectively. Sahabir Oraon a constable has been examined as P.W.11, who has proved the formal First Information Report in writing and signature of officer in-charge, Niranjan Kumar Singh, which has been marked as exhibit 3.
8. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr. P. C. on 02.10.2003, to which they have denied the evidence levelled against them and pleaded, that because of land dispute between the parties, a false case has been instituted against them.
9. No defence witness or documentary evidence has been adduced on behalf of the appellants.
10. After hearing the learned counsel for the parties and on perusal of the records, the learned trial Court has passed the impugned judgment of conviction and order of sentence against the appellants.
Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal, before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence.
11. Heard, learned counsel for the appellants, Mr. Hemant Kumar Shikarwar. Learned 4 counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.
Learned counsel for the appellants has further submitted, that learned trial court has convicted the appellants on perverse finding. Learned counsel for the appellants has further submitted, that P.W.1, Binod Yadav, P.W.2, Sahdev Yadav, P.W.3, Ram Prawesh Ram, P.W.4, Jaggu Ram, P.W.5, Madan Yadav, P.W.6, Birkeshwar Ram, and P.W.9 Keshwer Ram are hearsay witnesses.
Learned counsel for the appellants has further submitted, that Chaturgun Yadav, informant and husband of the deceased, has been examined as P.W.7 and Umesh Kumar (son of the deceased and son of the informant) has been examined as P.W.8, both have claimed themselves as an eye witnesses to the occurrence but on careful scrutinization of the evidence of P.W.7 and P.W.8, their evidences are contradictory to each other. P.W.7 has stated, that from place of occurrence, the accused persons fled away and with the help of co-villagers, informant brought his wife in injured condition to his house, whereas, P.W. 8, minor child, aged about 12 years, has stated, that he saw the assault being made by the accused persons, upon his mother and thereafter, he went to his house to call his father and upon arrival of his father at the place of occurrence, the accused persons fled away. P.W.8 has further stated, that his mother was brought by his father and uncle (lalu) to the house and local doctor treated his mother.
Learned counsel for the appellants has further submitted, that from perusal of F.I.R. lodged by Chaturgun Yadav, where the informant has categorically stated that, due to night and non-availability of conveyance, the victim was not brought to the hospital or before the police, rather victim was treated at home by local medicine, whereas the informant's son Umesh Kumar (P.W.8) has categorically stated that, the victim was treated with bandage and saline water was also administered.
Under the circumstances, learned counsel for the appellants has submitted, that considering the contradictory evidence of P.W.7 and P.W.8, this court cannot put reliance upon the evidence of P.W.7 and P.W.8 for convicting the appellants, as altogether nine accused/appellants have been tried in this case and there is no such 5 injury, which can be attributed to all these nine accused/appellants persons. Apart from this, injury which was found on the neck of the deceased has not been explained by the prosecution. As per the statement of Chaturgun Yadav, that mark may have been caused by snatching of hasuli, worn by his wife but as per the, doctor, P.W.10, Mithilesh Kumar Singh, while examining in the Court, has categorically stated, in para 13 of his cross-examination that, while snatching a hasuli, victim will suffer invariable discontinuity in ligature mark, which has not been found by the doctor and as such, the injury no.2 with respect to ligature mark is unexplained by the prosecution.
Learned counsel for the appellants has further submitted, that Shabir Oraon (P.W.11) constable, being a formal witness has proved, the formal F.I.R. and signature on the same of the officer in-charge, Niranjan Kumar Singh, has been marked as exhibit 3.
Learned counsel for the appellants has further submitted, that learned trial Court has observed in the impugned judgment that the place of occurrence has not been established by the prosecution but has wrongly mentioned that the evidence of prosecution witnesses are consistent.
Learned counsel for the appellants has further submitted, that evidence of P.W.7, Chaturagun Yadav and P.W.8, Umesh Kumar, are contrary to each other and other prosecution witness from P.W.1 to P.W.6 and P. W. 9 are hearsay witnesses and as such, the learned trial Court has convicted the appellants on the basis of perverse finding.
Learned counsel for the appellants has further submitted, that the postmortem report, which has been proved and marked as exhibit 2 suggest that strangulation injury is postmortem in nature and as such, there is a vital lacuna in the prosecution case, which the learned trial court has failed to consider and wrongly convicted the appellants under Section 304 part II read with Section 34 of the Indian Penal Code.
Learned counsel for the appellants has further submitted, that non-examination of the investigating officer in this case, has caused serious prejudice to the appellants, as the appellants could not get an opportunity to cross-examine, the investigating 6 officer to elucidate the fact with respect to lacuna in the prosecution case, in order to prove their innocence and they have been falsely implicated at the hand of the informant with whom they have land dispute, as has been stated by the accused/appellants during statement recorded under Section 313 Cr.P.C.
Learned counsel for the appellants has further submitted, that considering the above submissions, the appellants may be acquitted of charge and conviction by giving benefit of doubt.
12. Heard, Mr. Gouri Shanker Prasad, learned Additional Public Prosecutor, appearing for the State, has submitted, that the impugned judgment of conviction and order of sentence is based on material available on record and these nine appellants have assaulted the wife of the informant, Mohari Devi, who died in the very next morning and as such, learned trial Court has rightly convicted the appellants under Section 304 part II read with Section 34 of the Indian Penal Code.
Learned counsel for the State has further submitted, that P.W.7 (informant of this case) has supported the prosecution case during his evidence in the Court and as such, this court may not interfere with the impugned judgment of conviction and order of sentence, at this stage.
13. Heard, Learned counsel for the appellants, Mr. Hemant Kumar Shikarwar, Advocate and Learned counsel for the State, Mr. Gouri Shanker Prasad, Additional Public Prosecutor appearing for the State. This court has scrutinized the evidence of prosecution witnesses. Prosecution witnesses P.W.1, Binod Yadav, P.W.2, Sahdev Yadav, P. W.3, Ram Prawesh Ram, P. W.4, Jaggu Ram, P.W.5, Madan Yadav, P.W. 6 Birkeshwar Ram and P.W.9 Keshwer Ram are hearsay witnesses. Only two witnesses, P.W.7, Chaturgun Yadav and P.W. 8, Umesh Kumar are the eye witnesses to the occurrence, but their evidence adduced in the Court is not consistent rather, contradictory to each other. As per, P.W. 7, on brawl raised by his wife, he went to the place of occurrence, but as per P.W.8, Umesh Kumar, who is son of the informant and deceased, has stated that, when the accused persons started assaulting his mother, he came to the house to call his father and took him to the place of occurrence. Subsequently, P.W.7 has stated that, with the help of co-villagers he brought his 7 injured wife to the house but as per P.W. 8, the injured was brought by his father with the help of his uncle (lalu), P.W.7 has further stated that, because of night and non availability of conveyance, the victim was provided medical aid in the village, which was domestic medicine, whereas P.W.8 Umesh Kumar has categorically stated that, his mother was treated by doctor who bandaged her and administered saline.
Under the aforesaid circumstances, this Court is of the opinion that, P.W.7 and P. W. 8 have adduced contradictory evidence, which are not in consonance with the First Information Report and as such, this Court considering the contradictory evidence adduced by P.W.7, Chaturagun Yadav and P. W. 8, Umesh Kumar, son of P.W.7 and deceased, coupled with fact that medical report, which has been proved and marked as exhibit 2, where postmortem strangulation injury was found apart from unexplained injury on neck of victim and non-examination of Investigating Officer, has not provided opportunity to the appellant, to cross-examine him on these vital points, this Court is of the opinion that, conviction of the appellants on the basis of such, sketching material is not sustainable in the eyes of law and the benefit of doubt is extended in favour of the appellants because of inherent lacuna in the prosecution case.
14. From the aforesaid reasons, this Court is of the considered view that the impugned judgment of conviction dated 28.01.2004 and order of sentence dated 29.01.2004, passed by learned 5th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 196/2000, under Section 304 part II read with Section 34 of the Indian Penal Code, is not sustainable in the eyes of law. Thus, the impugned judgment of conviction and order of sentence is hereby set aside.
15. The appellants, who are already on bail, are discharged from the liability of their bail bonds.
16. Accordingly, the present appeal stands allowed.
17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 21.08.2018 Jay/-