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2007 DIGILAW 174 (JHR)

Babua Hansda v. State Of Jharkhand

2007-03-15

DABBIRU GANESHRAO PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT 1. This appeal is directed against the judgment and order of conviction and sentence of the appellant by the 1st Addl. Sessions Judge, Godda, in Sessions Trial No. S.T. No. 10 of 1995/53 of 1995. whereby the appellant has been convicted for offence under Section 302, IPC and sentenced to undergo imprisonment for life. 2. Brief facts of the case is that on the night of 31.10.1994. the informant Suraj Murmu, (PW 1) a neighbouring resident of the appellant, heard noises from the house of the appellant. He rushed to the house where he found the appellants mother lying injured, in a precarious condition, and he saw the appellant offering water to the injured lady. A few moments later, the injured lady died at the spot itself. It is claimed that the appellant made an extrajudicial confession before the informant, as also before the other co- villagers, who had arrived at the place of the occurrence, admitting that he had assaulted his mother and the reason for assault was a quarrel between him and his mother over her demand for meat for dinner. The matter was reported to the villager chaukidar. The informant and other co-villagers handed over the appellant to the chaukidar. On information, the police arrived on the next morning, recorded informants Jardbeyan whereafter the instant case was registered under Section 320, IPC. 3. The appellant had pleaded not guilty to the charge claiming of his false implication by the informant in league with other villagers due to land dispute. 4. Altogether five witness were examined by the prosecution at the trial, the informant (PW 1) being one of them, while the others were the cc-villages. The post-mortem report was not adduced in evidence, nor was the doctor who had conducted the autopsy and neither was the investigating officer examined. 5. The trial Court had convicted the appellant for the offence relying on the testimony of the informant. Assailing the judgment of conviction and sentence, the appellant has claimed, that the conviction is bad, both on facts and in law and that the trial Court has recorded the judgment of conviction and sentence without appreciating the evidence on record in proper perspective. 6. Mr. Assailing the judgment of conviction and sentence, the appellant has claimed, that the conviction is bad, both on facts and in law and that the trial Court has recorded the judgment of conviction and sentence without appreciating the evidence on record in proper perspective. 6. Mr. P.K. Verma, learned Counsel for the appellant submits that though the prosecution examined five witnesses, but in absence of evidence of the doctor and the post-mortem report, there is no definite, reliable and cogent, evidence to confirm that the deceased died on account of ante-mortem injuries sustained by her. Learned Counsel further explains that even according to the statement of the informant and that of the PW 4, both of whom claim to have arrived at the place of the occurrence on hearing cries, but they claim to have seen the appellant merely offering water to his injured mother, who was lying in a seriously injured condition, gasping for breath, and soon thereafter, she died. None of these witnesses claim to have seen any assault made on the deceased by the appellant. Learned Counsel explain further that the statement of these witnesses that the appellant had made extra judicial confession before them admitting that he had assaulted his mother, cannot be accepted in evidence, nor can it be acted upon in view of the fact that the said circumstance was not put to the appellant at the time when his statement was recorded under Section 313. Cr PC to enable him to explain the same. It is further submitted that the appellant has categorically denied to have confessed his guilt, nor has he ever accepted responsibility for the death of the deceased. It is further submitted that non-examination of the investigating officer has caused prejudice to the defence case, inasmuch as, the circumstance in which the dead body was found as also the nature of the injuries found on the dead body of the deceased, has not been explained by the witnesses examined by the prosecution. 7. It is further submitted that non-examination of the investigating officer has caused prejudice to the defence case, inasmuch as, the circumstance in which the dead body was found as also the nature of the injuries found on the dead body of the deceased, has not been explained by the witnesses examined by the prosecution. 7. Learned Counsel for the State, on the other hand, while supporting the judgment of conviction and sentence of the appellant, submits that the case of the prosecution rests on the evidence of the Informant PW 1 and that of the PW 4, both of whom have categorically stated on hearing the alarms of the deceased, they had rushed to house where they found the lady lying in a seriously injured condition and the appellant was found offering water to her and both the witnesses have categorically stated that the appellant made extra judicial confession before them admitting that he had assaulted the deceased with lathi resulting in the injuries found by the witnesses on the person of the deceased. 8. It appears from the statement of the informant (PW 1) that when he arrived at the house of the deceased, he found the deceased lady lying in an injured condition. He explains that he found that the wrist of the lady was broken. The statement of this witness as also that of PW 4 relating to the purported extra judicial confession made by the appellant does not indicate that in his purported confession the accused/appellant had explained the injuries found on the person of the injured lady /deceased, nor has he acknowledged to have caused the wrist injury on the deceased lady. Even if the purported confession as stated by the witness Is considered, it in itself does not lead to the conclusion that the injuries seen by the witness on the person of the deceased were, in fact, the cause of death of the deceased. The prosecution has not brought on record the post-mortem report or the supporting evidence of the doctor who conducted the post-mortem examination, if any. In fact, it has nowhere come on the record that the dead body of the deceased was forwarded for post-mortem examination or for that matter, the postmortem on the dead body of the deceased was at all conducted. The prosecution has not even brought on the record the Inquest report prepared, if any. In fact, it has nowhere come on the record that the dead body of the deceased was forwarded for post-mortem examination or for that matter, the postmortem on the dead body of the deceased was at all conducted. The prosecution has not even brought on the record the Inquest report prepared, if any. Referring once again to the statement of the witnesses, it appears that none of them has specifically stated regarding the injuries seen by them on the dead body of the deceased although in the Jardbeyan, the informant claims to have seen fracture injury oh the wrist of the deceased which, by no stretch of imagination, can be said to be the cause of death of the deceased. Another important aspect of the case, which the learned Counsel for the appellant has rightly pointed out, is that while the prosecution has relied entirely on the purported extra-judicial confession of the appellant made before the witnesses and the trial Court has also considered the same while recording its findings, this circumstances was never put to the appellant while examining him under Section 313, Cr PC, This vital omission on the part of the trial Court cuts at the very root of the trial Courts findings. 9. Considering, the entire facts and circumstances of the case, we find that the learned trial Court has failed to appreciate the evidence on record In proper perspective and has recorded his finding without proper application of judicial mind. We are satisfied therefore that the impugned judgment of conviction and sentence of the appellant is not sustainable in law and is fit to be set aside. 10. We find merit in this appeal. Accordingly, this appeal is allowed. The judgment of conviction and sentence imposed on the appellant by the trial Court in Sessions Trial No. 10 of 1995/53 of 1995 is hereby set aside and the appellant is acquitted of the charge. The appellant is in custody. He Is directed to be set at liberty forthwith, if not required in connection with any other case(s).