Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 1149 (JHR)

Durga Sao v. State Of Jharkhand

2006-09-01

DHANANJAY PRASAD SINGH

body2006
JUDGMENT Dhananjay Prasad Singh, J. 1. Heard the parties. 2. The appeal arises against the judgment of conviction dated 16th July. 2002 and order of sentence dated 17th July, 2002 passed by the learned 12th Additional Sessions Judge, Dhanbad in Sessions Trial No. 200 of 1995. whereby the learned trial Court convicted the appellants, abovenamed. for the offence under Section 326, IPC and sentenced Appellant No. 1 to undergo simple imprisonment for one year and appellant No. 2 to undergo simple imprisonment for three months for the offence under Section 326, IPC, each. 3. Brief facts leading to this appeal are that Laljee Sao. since deceased, used to reside with the appellants, as Durga Sao was his youngest son. in his house situated in Nunudih. P.S. Jorapokhar. Sudamdih. Dhanbad. As alleged, on 1st August, 1994, at about 10.00 a.m. both the appellants, wife and husband, called him and asked him to vacate the house occupied by him otherwise he would be killed. As stated, when the Informant. Laljee Sao. objected and said that after his death, this house may go to all the brothers. This infuriated the appellant, Durga Sao, who called the appellant, Kiran Devi, who went inside the house and brought one Dekchit, boiling water and poured it on the informant, resulting in burn injury on the upper portion of the body. According to the informant, thereafter, he was confined inside the room for three days and only when his elder son, Gauri Shankar Sao, learnt, he came to take him out for treatment in Jealgora Central Hospital, where the statement was taken. 4. The statement of the informant was recorded by Jealgora police in the evening of 6th August, 1994, on the basis of which, Sudamdih P.S. Case No. 282 of 1994 was registered under Sections 343, 324 and 307, IPC against both the appellants. Police investigated the ease and finally submitted the charge-sheet against both of them under Sections 307, 326, 343/34, IPC. 5. The case of the appellants was committed to the Court of Sessions for trial. The trial Court framed charges against the appellants under Sections 307, 343, 326/34, IPC on 27th May, 1998. The appellants have pleaded innocent and false prosecution. Police investigated the ease and finally submitted the charge-sheet against both of them under Sections 307, 326, 343/34, IPC. 5. The case of the appellants was committed to the Court of Sessions for trial. The trial Court framed charges against the appellants under Sections 307, 343, 326/34, IPC on 27th May, 1998. The appellants have pleaded innocent and false prosecution. However, learned trial Court after examining found them guilty for the offence under Section 326/34, IPC, while acquitting them of the charges under Sections 343 and 307, IPC and sentenced them separately, appellant. Kiran Devi, to serve simple imprisonment for three months, while appellant, Durga Sao. has been sentenced to serve simple imprisonment for one year. 6. The present appeal has been preferred on the ground that the trial Court had misconstrued the facts and relied upon belated evidence of interested witnesses to believe the prosecution case. It is also submitted that neither the fardbeyan was proved as per law. nor the informant has been examined by the prosecution. It is also submitted that the learned trial Court, while disbelieving the allegation under Sections 307 and 343, IPC, wrongly convicted the appellants under Section 326, IPC. According to the learned Counsel appearing for the appellants, they were innocent and false case got registered by Gauri Shankar Sao, just to garb the properties, which were registered by the deceased in the name of the appellant, Kiran Devi. It has also been submitted that appellant No. 1 has remained in custody for nearly two months for no fault on his part. According to learned Counsel for the appellants, the informant remained alive for nearly one and half years after this occurrence and was taken care by them as well as his last funeral rites was performed by them. 7. Mr. Manoj Kumar, learned A.P.P., appearing for the State and learned Counsel appearing for Gauri Shankar Sao submitted that the appellants deserve to be sentenced severely. 8. I have considered the submissions of the learned Counsel for the appellant along with facts available on record. It is undisputed fact on record that Laljee Sao was the father of appellant No. 1 and father-in-law of appellant No. 2. It has also come on record that the fardbeyan was recorded on 6th August, 1994 by the police, when the said Laljee Sao was getting treatment at Jealgola Central Hospital. It is undisputed fact on record that Laljee Sao was the father of appellant No. 1 and father-in-law of appellant No. 2. It has also come on record that the fardbeyan was recorded on 6th August, 1994 by the police, when the said Laljee Sao was getting treatment at Jealgola Central Hospital. According to this fardbeyan, after the occurrence, he was confined in the house for three days and only when PW-1, Gauri Shankar Sao brought him out, he was taken to Jealgora Central Hospital for his treatment. 9. According to PW-1. Gauri Shankar Sao, who was not the eyewitness of the occurrence, he came to learn about the incident on 4th day. vide PW-9. He further admitted, vide Para 11, that on 6th day the statement of the informant was recorded. This witness has further admitted, vide Paras 25 and 26, that when he came to learn about the incident, he did not visit his father, though it was situated only at a walking distance of half an hour. He further admitted in Para 40 that Shiv Prasad Sao informed him about the incident and vide Para 42 that the appellant and his father used to reside in the same house, though separately. Shiv Prasad Sah has not been examined as witness in this case. PW-2, Vijay Kumar Sao, son of said Shiv Prasad Sao, asserted that he has seen the occurrence, but he did not inform regarding this any of his uncles and informed PW-1 (Gauri Shankar Sao) only when he came to meet him. This witness has admitted in cross-examination that the informant, Laljee Sao, had talked with him on the day of occurrence, vide Para 20. and he met PW-1 after three days of the occurrence, vide para 24, but he did not inform the police, vide Para 30. PW-4, Pachla Devi, is his mother, who also alleged that she has seen the occurrence, but she or her husband did not inform the police, vide Para 11, nor tried to get Laljee Sao treated, vide Para 12. This shows that PWs-2 and 3, both, have seen the alleged occurrence, but they preferred not to inform either police or get the informant treated for his burn injuries. This shows that PWs-2 and 3, both, have seen the alleged occurrence, but they preferred not to inform either police or get the informant treated for his burn injuries. According to them, only after three days, when PW-1 came there, he was informed by PW-2 regarding incident, who took Laljee Sao to Jealgora Central Hospital for his treatment on 5th August. 1994. Thereafter, statement of the informant was recorded in the evening of 6th August. 1994. Therefore, there is delay of five days in lodging the first information report, although ample opportunity was available to PWs-2 and 3 and even PW-1 to inform the police or take legal steps for prosecution of the offence and treatment of Late Laljee Sao. In this context, the evidence of PW-3, Dr. U. Acharya, and Investigating Officer, Brij Bihari Singh, PW-5 is scrutinized. PW-3 has found scald injury on the upper portion of the body of Laljee Sao. caused by hot liquid, may be hot water. He has admitted that he could not say when Laljee Sao was discharged. PW-5 received the statement of Laljee Sao and took up investigation and visited the place of occurrence. He admitted in cross-examination that the investigation was started in the night of 7th August, 1994. He further contradicted the statement of PW2, vide Paras 17 and 18, on material points. PW-3 has not stated about the age of the injury, simply scald injury. 10. On careful scrutiny of the materials available on record, it appears that the alleged incident took place on 1st August, 1994 and first information report was lodged on 6th August, 1994. The eyewitness of the occurrence, PW-2, has exaggerated himself and was contradicted, on material points by PW-5, Investigating Officer, thats why he did not inform any one about the incident, when he has seen the occurrence. PW-4, mother of PW-2, also admitted that she saw the occurrence, but she preferred not to inform any one about this occurrence, PW-1, Gauri Shankar Sao, has himself admitted that on 4th day of the occurrence, he came to know about it from PW-1. It is apparently misstatement of facts because, if Laljee Sao was the father of PW-1, grandfather of PW-2 and father-in-law of PW-4, they all have occasion to get informed about the occurrence through PW-2, so that the old man could have been treated for injuries. It is apparently misstatement of facts because, if Laljee Sao was the father of PW-1, grandfather of PW-2 and father-in-law of PW-4, they all have occasion to get informed about the occurrence through PW-2, so that the old man could have been treated for injuries. Though, the appellants have not explained, under what circumstance injuries were caused to Laljee Sao mentioned by PW-3. Doctor, on 5th August, 1994, but the prosecution was duty bound to prove why this delay has been caused in lodging the first information report. 11. In absence of the informant himself, it is very difficult to arrive1 at the truth. It is also considered view of the Apex Court that in such circumstances, benefit of doubt goes to the appellants. It is also a fact that appellant No. 1 has remained in custody for two months. This fact has not been denied that after this incident. Laljee Sao used to reside with the appellants till his death. 12. Having regard to the above tads and circumstances, I find and hold that the prosecution has not been able to prove the charge under Section 326, IPC against the appellants beyond all reasonable doubts. In the result, I find that the present appeal has got merit and deserves to be allowed. Accordingly, order of conviction and sentence passed by the trial Court in Sessions trial No. 200 of 1995 cannot be sustained and is hereby set-aside. The appellants are further released from their liabilities of bail bonds. In this view of the matter, this appeal is allowed.