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2009 DIGILAW 1341 (JHR)

Abdul Alim @ Md. Abdul Alim v. State of Jharkhand

2009-10-27

PRADEEP KUMAR

body2009
Order By Court.-Heard learned counsel for the petitioner and learned counsel for the opposite parties as well as State. 2. This revision application is directed against the judgment of acquittal passed by the 1st Additional Sessions Judge, Pakur in Sessions Trial No. 91 of 2006 by which judgment he acquitted the accused opposite party nos. 2-6 giving finding that sole eye witness the informant P.W. 10 is not an eye witness. 3. It is submitted by the learned counsel for the petitioner that the informant has fully supported the evidence when he was cross-examined as P.W. 10. The prosecution case given by him in the First Information Report and the statement is fully corroborated by the medical evidence which has found various injuries on the person of the deceased, his father. He has further submitted that even the I.O. has corroborated the place of occurrence as given by the informant in his F.I.R. and his statement in Court and as such the learned Trial Court committed an error in law and in passing the order of acquittal against the opposite party nos. 2-6. She has relied in a decisions of Supreme Court reported in (2007)13 SCC Page 530 and (2007)14SCC Page 16 and submits that the informant is reliable witness and the Court has wrongly found that he has not seen the incident and acquitted the accused persons. 4. On the other hand, learned counsel, appearing for the opposite parties has submitted that the evidence given by the informant in the First Information Report has not been supported by the eye witness, his own cousin brother Anarul Sk., who has stated that at the time of occurrence he alongwith informant Abdul Alim were in Dhuliyan Bazar and as such in absence of any corroborative evidence, the learned Trial Court rightly acquitted the accused persons. He also relied in the case of Chandrappa vs. State of Karnataka reported in (2007)4 SCC Page 415 which is relied in favour of the accused persons wherein the Apex Court has held that where two views are possible on evidence on record, the order of acquittal cannot be set aside. 5. He also relied in the case of Chandrappa vs. State of Karnataka reported in (2007)4 SCC Page 415 which is relied in favour of the accused persons wherein the Apex Court has held that where two views are possible on evidence on record, the order of acquittal cannot be set aside. 5. After hearing both the parties and going through the records I find that prosecution case was started on the basis of First Information Report given by P.W. 10 Abdul Alim stating therein that on the date of occurrence i.e. on 1.7.2006 he along his father Anjar Ali and cousin brother Anjarul Sk. had gone for cutting grass towards south of his field at Bander Math and after cutting grass when they were coming back then suddenly five accused persons namely Kalu Sk., Morjem Sk., Julfikar Sk., Fitu Sk. and Manjaiul Sk. came variously armed with sword and chheni. It is stated that accused Kalu Sk. first gave a chheni blow on the right leg of his father due to which he fail down thereafter all assaulted him by their arms, when he and his cousin brother objected then they threatened, that they will also be killed. Then they ran away and made hulla in the village. When they came back with the other villagers then the accused persons ran away then they found head of their father has been cut even the hands, legs were cut from his body. 6. On the basis of said First Information Report police registered a case under Section 302/34 of the Indian Penal Code and after investigation police submitted charge-sheet against the accused person. The case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate after taking cognizance of the case committed the same to the Court of Sessions and finally the case was tried by Additional Sessions Judge. 7. Subsequently, the case was tried by 1st Additional Sessions Judge, Pakur. In course of trial the prosecution examined as many as fourteen prosecution witnesses but except the informant P.W. 10, not a single witness supported the prosecution case all turned hostile. The doctor P.W. 7 who examined the deceased proved the post mortem report and stated that he found as many as six sharp cutting injuries on the person of the deceased and the deceased died due to haemorrhage and injuries caused by the sharp cutting weapons. 8. The doctor P.W. 7 who examined the deceased proved the post mortem report and stated that he found as many as six sharp cutting injuries on the person of the deceased and the deceased died due to haemorrhage and injuries caused by the sharp cutting weapons. 8. It. is important to note that although P.W. 10 the informant has stated before. the Court that he alongwith his father-deceased and cousin brother P.W. 1 Anarul Sk. were returning from the field after cutting grass then suddenly the accused person armed with chheni and sword and for the first time accused Kalu given chheni blow on the legs of his father due . to which he fell down and then all assaulted him and Anarul objected then they ran away to the village and made hulla but the same fact has not been supported by the second eye witness Anarul Sk. who is cousin brother and nephew of the deceased. He did not support the prosecution case and stated in Para 4 of his cross-examination that at the time of occurrence he alongwith his cousin brother informant P.W. 10 Md. Abdul Alim were at Dhuliyan Bazar. It is important to note that the prosecution witness namely P.W. 2 Arkesh Sk., P.W. 3 Nasir Hussain, P.W.6 Noorlslam Sk. who are co-villagers have stated that at the time of occurrence the informant Md. Abdul Alim was at Dhuliyan Bazar and when they saw the dead body of his father then they went to Dhuliyan Bazar and informed him and thereafter he came and gave ring to the police, who came at 5.00 P.M. then his F.I.R. was recorded. The above evidence of the villagers including his own cousin brother P.W. 1 creates doubt in the statement of P.W. 10 that he himself saw the occurrence. The delay in recording the fardbeyan also creates doubt and proves the facts that the informant came to the place of occurrence after the occurrence had taken place and the Trial Court rightly acquitted the accused person and doubted that P.W. 10 is an eye witness. 9. I find nothing to disagree with the finding arrived at by the Trial Court. I find no merit in the revision application and the same is dismissed.