Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 976 (JHR)

KUNJO LAHAR v. STATE OF JHARKHAND

2003-08-11

DEOKI NANDAN PRASAD, HARI SHANKAR PRASAD

body2003
Judgment : DEOKI NANDAN PRASAD, J. ( 1 ) THIS appeal is directed against the judgment of conviction and order of sentence passed by the learned Additional Judicial Commissioner, Khunti in Sessions Trial No. 261 of 1983 whereby and where under the learned Judicial Commissioner convicted the appellant for the offence under Section 302/201, IPC and sentenced him to undergo rigorous imprisonment for life under Section 302, IPC and five years under Section 201, IPC but both the sentences are ordered to run concurrently. ( 2 ) THE prosecution case in brief is that on 7/3/1982 the deceased. (choukidar Gorakh Nath Munda) had gone to Puma Nagar market he did not return and thereafter the informant along with his mother went to the house of this appellant, Kunjo Lohar who is also choukidar to inquire about his father. Gorakh Nath Munda to which the appellant told them to make search of his father and thereafter they returned to the house and started searching. It is further alleged that again the informant went to the house of appellant to inquire about his father to which the appellant told him to search his father in the house of his family members and he will search in the village. It is further alleged that the accused/appellant had given him a tobacco dibiya belonging to his father. It is also alleged that the appellant told them that one dead body is lying near the bandh which could not be identified and thereafter the informant and his family members rushed to the spot near the bandh and found the dead body of his father. Accordingly the first information report was lodged against unknown. The police investigated into the case and submitted charge-sheet against the appellant who appeared before the trial Court and accordingly charge was framed under Section 302/201, IPC which was read over and explained to the accused who pleaded not guilty. The witnesses were examined before the trial Court and after hearing both sides, the learned Judicial Commissioner passed in the impugned judgment convicting and sentencing the appellant in the manner as stated above. ( 3 ) LEARNED counsel on behalf of the appellant, while assailing the impugned judgment, submitted that the learned trial Court committed error in convicting the appellant without appreciating the evidence on record, as there is no iota of evidence to connect this appellant for the alleged offence. ( 3 ) LEARNED counsel on behalf of the appellant, while assailing the impugned judgment, submitted that the learned trial Court committed error in convicting the appellant without appreciating the evidence on record, as there is no iota of evidence to connect this appellant for the alleged offence. It is further argued that there is no eyewitnesses to the occurrence and the Investigating Officer has also not been examined in this case for which the defence case has been prejudiced as well as the chemical examination report of the blood stained blanket and dhoti has not been received to establish that the blood of blanket and dhoti was actually human blood. It is further argued that the tobacco dibiya said to have been handed over by this appellant has also not been produced before the Court to substantiate the story in the manner as alleged which also leads the whole prosecution case doubtful. ( 4 ) BEFORE appreciating the contention of the learned counsel for the appellant, it is pertinent to deal with the evidence collected during trial. Obviously the first information report was lodged against unknown and there is no eyewitness of the occurrence. It is not the case of the prosecution that this appellant was accompanied with the deceased at the relevant time. So it is also not a case of last seen. There is specific allegations in the fardbeyan that the deceased had gone to Puma Nagar market alone and thereafter he did not return. ( 5 ) PW 1 is the informant who claimed that the dead body was found near Puma Nagar pond and one tobacco dibiya belonging to the deceased was handed over by this appellant but it has already been stated above that the said dibiya has never been produced in the trial Court to indicate that actually the said dibiya was handed over by this appellant and that was actually belonged to the deceased. PW 1 further deposed that bloodstained one blanket and one dhoti was recovered from the house of the appellant and from perusal of the record it appears that the said blanket and dhoti said to be bloodstained, were sent to the Forensic Laboratory for chemical examination with specific query that whether the said blood is human blood or not but admittedly no chemical report has yet been received nor the said blanket or dhoti has ever been produced before the trial Court. ( 6 ) PW 2 is the wife of the deceased. She is also not an eyewitness to the occurrence. According to PW 2, her husband used to keep a sum of Rs. 1,000. 00 but by keeping the said money will not be sufficient to make the appellant responsible for the same when he has never been seen with the deceased nor any witness has come forward to say that both were seen at any point of time. PW 3 is a formal witness. PW 4 is the witness over inquest report whereas PW 5 has proved the postmortem report as the doctor has not been examined in this case. PW 6 is also a formal witness. ( 7 ) NO any other witness has been examined on behalf of the prosecution and as such the appellant has been examined under Section 313. Cr. P. C. who denied his involvement. ( 8 ) IT is evident that not a single independent witness has come forward to depose in support of the prosecution case. PW5 1 and 2, the son and wife of the deceased are not the eyewitnesses. One blanket and one dhoti said to have been recovered from the house of the appellant but the same have not been produced before the trial Court to substantiate the story of such recovery as well as the chemical report with regard to the blood has also not come forward to indicate that actually the said blood was human blood or not. Thus, there is no specific or direct evidence coming forward to fasten the appellant in any manner for the alleged offence. Thus, there is no specific or direct evidence coming forward to fasten the appellant in any manner for the alleged offence. ( 9 ) IT is well settled that in circumstantial evidence three tests satisfying such evidence require for conviction: (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly establish: (ii) These circumstances should be a definite tendency unerringly pointing towards the guilt of the accused: (iii) The circumstances taken cumulative should form a chain so completed that there is no scope from the conclusion that within all human probabilities and crime was committed by the accused and none else. ( 10 ) THUS, it is well settled that in a case dependent wholly on circumstantial evidence the Court before recording conviction on that basis must be firmly satisfied. The circumstances from which the inference of guilt is to be drawn, have not been fully established by unimpeachable evidence beyond a shadow of doubt. None of the above tests could be established in the case at hand. In the instant case, except the fact that the said blanket and dhoti bloodstained, said to have been recovered but have never been produced nor chemical examination report has been brought on the record to show that actually the said blood was human blood. None of the witnesses is eyewitness nor this appellant was ever seen with the appellant. The FIR has also been lodged after four days of the occurrence and no cogent reason has been assigned which also makes the entire prosecution case doubtful. Thus the trial Court committed gross error in convicting the appellant on the basis of presumption and it is liable to be set aside. Thus, the circumstances as required for completion of the claim has not been completed in the instant case nor anything specific is coming forward to establish for reaching to a definite conclusion and pointing unerringly the guilt of the appellant. The whole prosecution case lies within the ambit of suspicion which cannot take the shape of proof as well as the circumstances taken collectively are incapable of proving the guilt of the accused. The suspicion howsoever strong cannot be a ground for conviction rather the benefit will be extended in favour of the accused. The whole prosecution case lies within the ambit of suspicion which cannot take the shape of proof as well as the circumstances taken collectively are incapable of proving the guilt of the accused. The suspicion howsoever strong cannot be a ground for conviction rather the benefit will be extended in favour of the accused. ( 11 ) IN the result, we are of definite view that the prosecution has totally failed to establish the charges against the appellant beyond all reasonable doubt as required under the law. We find merit in the appeal which is accordingly allowed. The impugned Judgment of conviction and the order of sentence is set aside. Hence the appellant is acquitted of the charges. It appears that the appellant is in custody and therefore, he is directed to be released forthwith, if not wanted in any other case. Appeal allowed. --- *** --- .