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Jharkhand High Court · body

2010 DIGILAW 1080 (JHR)

Shiv Ram Lohara v. State of Jharkhand

2010-12-15

JAYA ROY

body2010
Order The appellant has filed the instant appeal against the judgment dated 28.2.2002 passed in Sessions Trial No. 475 of 1996 by Mr. B. Z. Ansari, Additional District and Sessions Judge, Lohardaga whereby, he has convicted the appellant, namely, Shiv Ram Lohara for the offence under Section 307 of the Indian Penal Code and sentenced him to undergo RI for seven years. 2. The prosecution case, in brief as stated in the written report addressed to the officer-in-charge of Bhandra Police Station is that on 14.6.1995 at about 6 a.m. the informant's son and grandson, namely Jhaleshwar Lohra and Kamal Lohra were constructing mud wall in front of •their house. In the meantime, Mangra Lohra, Bandhu Lohra, Shiv Ram Lohra, Bish Ram Lohra and Raj Kumar Lohra of his village came and started abusing them in a utter filthy language. Thereafter, Mangra Lohra and Bandhu Lohra caught hold of his son Jhaleshwar Lohre, and Bish Ram Lohra and Rajkumar Lohra assaulted his son with fists and slaps. Thereafter, Bish Ram Lohra assaulted his son by Balua on his neck by which his son received injury. In the meantime, when his grandson came to save his father, Bish Ram Lohra also assaulted him by Balua by which he has received injury on his left hand, On this, a number of persons of the village came there and objected to the said fight. He has further stated in his written report that the reason of assault was land dispute and he has also stated that the accused and the other persons came there to kill his son. On the basis of the said written report, a case was lodged against five persons namely Mangra Lohra, Bandhu Lohra, Bish Ram Lohra, Rajkumar Lohra and Shiv Ram Lohra under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. 3. After investigation, the Police has submitted the charge-sheet under the aforesaid sections and, thereafter, the charge was framed and the case was transferred to the Court of Additional District and Sessions Judge, Lohardaga for trial. 4. The prosecution has examined nine witnesses to prove its case amongst them P.Ws. 1 and 8 are the two injured persons namely Jhaleshwar Lohra and Kamal Lohra (both are the son and father), P.W. 2 Akbar Ansari is a hearsay witness. P.W. 3 Sk. Basarat has been declared hostile. 4. The prosecution has examined nine witnesses to prove its case amongst them P.Ws. 1 and 8 are the two injured persons namely Jhaleshwar Lohra and Kamal Lohra (both are the son and father), P.W. 2 Akbar Ansari is a hearsay witness. P.W. 3 Sk. Basarat has been declared hostile. P.W. 4 Bishwanath Lohra is an independent but hearsay witness. P.W. 5 Somra Lohra is the informant of this case. P.W. 6 Dr. B.K. Pandey, examined the injured persons namely Jhaleshwar Lohra' and Kamal Lohra. P.Ws. 7 and 9 are the formal witnesses. P.W. 7 has proved endorsement of S.I.-Hari Shankar Singh on the written fardbeyan which is exhibited as Exhibit-3. P.W. 9 has proved formal FIR which is exhibited as Exhibit-4. The defence of the accused are totally denial of the occurrence and they have been falsely implicated as there is admittedly a land dispute between them. After considering the evidence of the witnesses, the trial court has acquitted all other co-accused from the aforesaid charges framed against them but convicted the appellant for the offence under Section 307 of the Indian Penal Code as stated above. Thus, only the P.W. 1, P.W. 5, P.W. 6 & P.W. 8 are the main witnesses. 5. The learned counsel for the appellant submits that P.Ws. 1 and 8 are the injured persons, P.W. 5 is the person who submitted his written report before the officer-in-charge of Bhandra Police Station and P.W. 6 is the doctor who examined the injured. He has further pointed out that the P.W. 5 himself has stated in his evidence that his son (P.W. 1) and grand-son (P.W. 8) went to the Police Station taking his signature on a paper and, thereafter, he reached the Police Station and he has further stated in his evidence that he does not know what is written on the paper on which he has put his signature which was taken by his son to the Police Station. He has further admitted in his evidence that he does not know who has written the said written fardbeyan on his behalf. 6. The learned counsel for the appellant submits that all these statements clearly proves that the person who has lodged information as informant in this case does not even know the contents of the written fardbeyan. He has further admitted in his evidence that he does not know who has written the said written fardbeyan on his behalf. 6. The learned counsel for the appellant submits that all these statements clearly proves that the person who has lodged information as informant in this case does not even know the contents of the written fardbeyan. Furthermore, though his son and grandson who were injured (i.e. P.W. 1 & 8), they went to the Police Station. So what was the circumstance restraining them to lodge the FIR in the Police Station when they reached first at the Police Station. Definitely, it casts some doubt on the prosecution case. The learned counsel for the appellant has further pointed out that P.W. 8 who is injured person and claimed to be, the eye witness of the occurrence, very clearly stated in his evidence that at about 8:30 am 10 to 12 villagers came in his house and a Baithak (Panchayati) was held for half an hour but the matter was not settled. He has further stated that he and his father were treated in Sadar Hospital for one and half months but he has not produced any paper or certificate of the said hospital in support of his statement. 7. The learned counsel for the appellant Mr. S.N. Rajgarhia has pointed out that the injury report which has been made as Exhibit-2/1 clearly shows that there is some manipulation in the date and signature of the doctor and he has further stated that the doctor has not stated regarding the date and time when he has examined these two injured. It is also pointed out that though the doctor has mentioned that the injury No. 1 is on the right side of the neck by a sharp cutting wapon 6" x 2" X 1" but the nature of the 'injury is simple in nature but seeing the size of the injury, it cannot be possible for the injured to go to the Police Station and thereafter came to the hospital and speak about the incident. Furthermore, he has contended that the doctor has not stated that these injured persons were treated in the Sadar Hospital for one and half months. Furthermore, he has contended that the doctor has not stated that these injured persons were treated in the Sadar Hospital for one and half months. If according to the doctor the injury was simple in nature then the evidence given by the injured persons that they were treated for one and half months are totally false and concocted. It is also contended that according to the prosecution case 10 to 12 persons admittedly were present but surprisingly enough, not a single witness has come forward to give evidence regarding the alleged occurrence. He has contended that Exhibit-2/1 clearly shows that the doctor has admitted that the injury repot was addressed to the S.I., Lohardaga for lodging the case at Bhandra Police Station but even doctor has not stated in his evidence how the injured person came to him and who sent these two injured persons to him for examination. 8. The learned counsel for the appellant has further pointed out that though the P.W. 5 has stated that P.W. 1 Jhaleshwar Lohra had taken his signature on paper and went to the Police Station first but the P.W. 1 himself stated in his evidence that he has not gone to thana to lodge any case. 9. The learned counsel for the State Mr. T.N. Verma has submitted that there are minor contradictions in the evidence of the witnesses but the prosecution has proved its case beyond all reasonable doubts. 10. I find not a single independent witness has been examined by the prosecution. According to the prosecution, the alleged occurrence has taken place at about 6 a.m. in the month of June and a number of villagers reached to the place of occurrence but not a single witness has been examined by the prosecution. The witnesses i.e. P.W. 1, P.W. 5, P.W. 6 & P.W. 8 all are interested witnesses and they should be trustworthy. 11. Considering the aforesaid contradictions as discussed above, a person cannot be convicted on the basis of the evidence of such witnesses who have given statement contradictory to each other and when admittedly there is an enmity between them. On overall considerations, in my opinion, the prosecution has failed to prove its case beyond all reasonable doubts against the appellant. 12. Considering the aforesaid contradictions as discussed above, a person cannot be convicted on the basis of the evidence of such witnesses who have given statement contradictory to each other and when admittedly there is an enmity between them. On overall considerations, in my opinion, the prosecution has failed to prove its case beyond all reasonable doubts against the appellant. 12. I, therefore, set aside the impugned judgment dated 28.2.2002 passed in S.T. No. 475 of 1996 by Additional District and Sessions Judge, Lohardaga and acquit the appellant giving benefit of doubt from the charge framed against him and he is discharged from the liability of the bail bond. Accordingly, this appeal is allowed.