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2007 DIGILAW 199 (JHR)

Bigal @ Biglaha Mahto v. State Of Jharkhand

2007-03-26

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Sole appellant Bigal @ Biglaha Mahto stands convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to serve rigorous imprisonment for four years, by the 1st Additional Judicial Commissioner, Khunti, Ranchi in Sessions Trial No. 664 of 1998. 2. Brief facts leading to this appeal are that in the afternoon of July 2, 1998, the appellant was carrying ripe jackfruits to Hatia when deceased Karma Oraon started negotiating for purchase of jack-fruits. As further stated during this negotiation, the deceased lifted a jackfruit to visualize it when it falls down on the road spoiling it. This led to an assault made by the appellant on the deceased with fist and pushing him down on the earth. According to informant, P.W. 2 Shushila Linda, her father fell down and became unconscious. Thereafter, the appellant moved away. The informant brought her father to the house after nourishing giving some water and massaging in the house, but the deceased remained unconscious. She went away in the morning to be informed by her brother P.W. 5 Sunil Linda that Karma Oraon breathed his last in the night. 3. The matter was reported to Karra police who registered Karra Police Station Case No. 33 of 1998 under Section 302 of the Indian Penal Code against the appellant and started investigation of the case. The dead body was sent for post-mortem examination after preparing inquest report and finally submitted charge-sheet against the appellant. The case of the appellant was committed for trial to the Court of Sessions where charge was framed against him on 2.11.1998. The appellant pleaded not guilty. However, the learned trial Court after examining the witnesses found and held him guilty under Section 304 Part II of the Indian Penal Code and sentenced him to serve rigorous imprisonment for four years. 4. The present appeal has been preferred mainly on the grounds that the conviction of the appellant was not sustainable particularly in view of the facts that cause of death has not been established. It is also asserted that the investigating officer of this case has not been examined and finally that even if the prosecution version is believed, the assault was not sufficient to cause death. 5. Mr. It is also asserted that the investigating officer of this case has not been examined and finally that even if the prosecution version is believed, the assault was not sufficient to cause death. 5. Mr. B.K. Pandey, learned Counsel appearing on behalf of the appellant, stressed before me that in the present case only one eye-witness has supported the prosecution case whereas P.W. 1 Hemant Toppo and P.W. 6 Israyal have been declared hostile by the prosecution. According to learned Counsel P.W. 3 Sarojani Sanga, P.W. 4 August Sanga and P.W. 5 Sunil Linda are hearsay witnesses of the occurrence. It was further pointed out that P.W. 5 and P.W. 7 are witnesses on the inquest report. Therefore, the whole prosecution story depends upon the statement of P.W. 2, which is also not supported by any medical evidence. 6. I have anxiously gone through the materials on records to evaluate the submissions made on behalf of the appellant. The prosecution version is that due to spoiling of the jackfruit, the incident took place where the appellant has assaulted the deceased with fists resulting in deceased falling on the ground. P.W. 2 is only witness asserting these facts before the police. According her version, she along with P.W. 5 took him inside the house. However, P.W. 5 has asserted in his examination-in-chief that when he was informed about this incident he was at his sasural at Bundu. Thereafter he brought his father inside the house. P.W. 2 further admitted during cross-examination that on road when she saw her father lying and the jackfruits on the road. She further admitted that her father was thin and used to take wine everyday. According to her version that as there was no grievous injury, doctor was not called. The prosecution has not examined the doctor providing the reason or cause of death neither the investigating officer has been examined. Other witnesses P.W. 3, P.W. 4 and P.W. 5 all related with deceased have not asserted these facts, rather, they claimed to be hearsay witnesses of the occurrence from Sushila Linda, P.W. 2. 7. Having regard to the above mentioned facts and circumstances of the case, I find that hold that the prosecution has not been able to bring home that the appellant has assaulted the deceased with knowledge or intention to cause, his death. 7. Having regard to the above mentioned facts and circumstances of the case, I find that hold that the prosecution has not been able to bring home that the appellant has assaulted the deceased with knowledge or intention to cause, his death. The incident happens in the spur of moment when jackfruit belonging to the appellant fell down on the ground while the deceased was negotiating it. The fact remains that he fisted and pushed the deceased on the ground, which did not cause any apparent grievous injury on the deceased. It has also come on record that the appellant has remained in custody for nearly two months before he was admitted to bail during trial on 2.11.1998. In such circumstances, I find and hold that the prosecution has not been able to prove the charge against the appellant. As such, the present appeal has got merit and deserves to be allowed. 8. In the result, the present appeal is allowed and the Judgment of the trial Court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and further discharged from the liabilities of his bail bond.