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2006 DIGILAW 1106 (JHR)

Rajeshwar Korwa v. State Of Jharkhand

2006-08-23

AMARESHWAR SAHAY

body2006
ORDER Amareshwar Sahay, J. 1. This appeal arises against the judgment of conviction and sentence dated 21.1.2004 and 22.1.2004 respectively passed by the Additional Sessions Judge, Fast Track Court, Latehar in Sessions Case No. 213 of 2001 whereby and whereunder, the appellants have been convicted for the offence under Section 304-Part-l/34 of the Indian Panal Code and sentenced them to under Rigorous imprisonments for a period of ten years each and to pay fine of Rs. 1,000/- (Rupees one thousand) each. 2. The prosecution case in short is that on 6.12.2000 at about 10.00 a.m., the informant Bahadur Korwa (deceased) accompanied with these two appellants was coming back from Bazarhaat and when all the three reached Jampart at about 8.00 p.m., these two appellants started abusing the informant and when he objected to it, the appellant Jugeshwar Korwa assaulted him with the back portion of tangi, on his head due to which he received bleeding injuries. The other appellant Rajeshwar Korwa also assaulted him by means of fist and slaps. Thereafter, the informant and the accused persons went to their respective home. 3. On the basis of the said statements of the informant, the FIR was registered under Section 323, 324, 504/34 of the Indian Penal Code. During investigation, the informant died on 14.12.2000 in the hospital and then, Section 302 of the Indian Penal Code was added and these appellants were tried for the charge under Section 302/34 of the Indian Penal Code. 4. The defence was complete denial of the allegations and of false implication, 5. In order to establish the charges, altogether four witnesses were examined on behalf of the prosecution out of which, PWs. 1 and 2 i.e. Roshan Korwa and Manoj Korwa respectively were declared hostile as they did not support the prosecution case. PW 3 is the Doctor Nagendra Prasad, who treated the injured in the hospital and had issued injury report. PW 4 Mohd. Mozammil is an advocate clerk who formally proved the post-mortem report. The doctor who held the post- mortem examination was not been examined by the prosecution. 6. From the impugned judgment, it appears that the learned Trial Court convicted the appellants only on the basis of the statements of the informant which was subsequently held to be as his dying declaration after he died in the hospital on 14.12.2000. 7. The doctor who held the post- mortem examination was not been examined by the prosecution. 6. From the impugned judgment, it appears that the learned Trial Court convicted the appellants only on the basis of the statements of the informant which was subsequently held to be as his dying declaration after he died in the hospital on 14.12.2000. 7. PW-3 Doctor Nagendra Prasad who treated the injured when he was admitted in the hospital, has stated in his evidence that he found one lacerated would over head left side on temporal region and size of which was 1" x 1/2" and the said injury was simple in nature and that could not have been cause of death. 8. It appears that the alleged occurrence took place on 6.12.2000 and the statements of the injured was recorded on 9.12.2000 in the hospital. He died in the hospital after five days i.e. 14.12.2000. It has not come in evidence that during this period, the injured was in unconscious stage and as such it is surprising as to why the Investigating Officer did not record the statements of the said injured while he was in the hospital and that too in presence of the Doctor. In view of none examination of the Doctor who held post-mortem, it cannot be said that the deceased died due to the injury received by him and the same was caused by the appellant. Therefore, in my view only on the basis of the FIR, which was treated as a dying declaration, the appellants could not have been held guilty for the charge under Section 304-Part-I/34 of the Indian Penal Code. 9. In such a situation, I hold that the prosecution has miserably failed to establish the charges against the appellants beyond all reasonable doubts. Consequently, this appeal is allowed. The conviction and sentence passed by the Trial Court against the appellants is hereby set aside. The appellants, who are on bail, are discharged from the liability of bail bonds.