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2009 DIGILAW 699 (JHR)

Daroga Sao v. State of Jharkhand

2009-05-05

JAYA ROY

body2009
Judgment The appellant has preferred this appeal against the judgment dated 13.1.2000 passed by 6th Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 8 of 1991 whereby the appellant has been convicted under Section 307 of the Indian Penal Code and 27 of the Arms Act and he has been sentenced to undergo R.I. for 10 years and R.I. for 3 years respectively and the sentences have been ordered to run concurrently. 2. The prosecution case, in brief, is that the informant was sleeping in his house after taking meal, and the family members were cutting the mango in Bari. In the meantime a firing was done and the informant sustained injury on his right cheek and thereafter Daroga Sao the appellant was seen fleeing away towards his house. The family members also raised hulla saying that Daroga Sao had fired on Briksha Sao. The cause of incidence is that on 19.5.1989 at 12 noon a hot discussion had taken place between the informant and Daroga Sao regarding the share of the mango. Daroga Sao had called co-villagers l\r1auzi Sao, Arjun Sao and Bigan Sao. After some altercation, the dispute was pacified. The informant further alleged that due to this reason Daroga Sao fired at him by his pistol. After investigation, the charge-sheet was submitted against the appellant Daroga Sao under Section 307 I.P.C. and under Section 27, Arms Act. As the appellant pleaded his innocence and further stated he has been implicated in this case due to village politics. 3. The prosecution has examined 14 witnesses to prove its case amongst them P.Ws. 2 and 9 have been tendered, P.Ws. 10, 13 and 14 are formal witnesses and P.Ws. 1, 3, 4, 5, 7, and 8 are relatives of the victim Briksha Sao. The injured Briksha Sao could not be examined by the prosecution as he died during the early stage of the trial. P.W. 6 is Doctor and P.W. 12 is I.O. of this case. . 4. The learned counsel for the appellant submits that though the prosecution has examined fourteen witnesses but none of them was eye witness of the alleged occurrence. It is further submitted that according to the informant, a good numbers of neighbours/villagers has come out from their house on the hearing of sound of firing but the prosecution has not examined any such independent witness. Furthermore, the P.Ws. It is further submitted that according to the informant, a good numbers of neighbours/villagers has come out from their house on the hearing of sound of firing but the prosecution has not examined any such independent witness. Furthermore, the P.Ws. 1, 3, 4, 5, 1 and 8 who are sons, daughter and son-in-law of the informant (injured) have given contradictory statements with each others and as such their credibility is highly doubtful. 5. Perused the lower court records, I find the P.Ws. 1 and 3 both have stated in their evidence that they have not seen the appellant to shot fire on the informant rather they have heard about this from the informant. In same away P.Ws. 4, 5, 7 and 8 have also stated that though they have came out from their house immediately but they have not seen the appellant to fire at the informant. Therefore, it is very clear that there is no eye witness of the alleged occurrence. It is admitted fact that there is a long standing enmity between the family of the appellant and the informants family (the injured) regarding their mango trees and often they quarrel with each other for cutting of their mango trees. It is well known that enmity has both the edges. Thus, there is every chance of fals. implication of the appellant by the informant party. 6. I find from the evidence of P.W. 6 (Dr. Narayan Chandra Agrawal) that he did not examine the informant, as he has stated that he has admitted Briksha Sao on 20.5.89 in the Sadar Hospital at Daltonganj at 2 P.M. when he was posted as CAS. in the said Hospital. He had only prepared his Discharge Slip and identified the said Discharge Slip, marked as Exhibit-2. He further stated in his cross-examination:- "I cannot say if the patient had actually sustained gun shot injury on the basis of discharge slip. At this time in the court I possess no document to show if the patient had gun shot injury." 7. It is really unfortunate that the Doctor who had examined the injured (informant) has not been examined in this case neither any reason has been assigned by the prosecution for the same. Thus, even if any injury sustained by the informant but the same is not proved by the prosecution. It is really unfortunate that the Doctor who had examined the injured (informant) has not been examined in this case neither any reason has been assigned by the prosecution for the same. Thus, even if any injury sustained by the informant but the same is not proved by the prosecution. In these circumstances, it cannot be said that the appellant has caused gun shot injury to the informant. 8. In view of the above discussion, I find force in the submissions of the learned counsel, appearing for the appellant. In the consequences the appeal is allowed and the order of conviction and sentence passed by the trial court is set aside. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds.