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2011 DIGILAW 666 (JHR)

Kamlesh Yadav v. State of Jharkhand

2011-07-14

P.P.BHATT, R.K.MERATHIA

body2011
JUDGMENT By Court.-This appeal arises out of the judgment of conviction and order of sentence dated 28.3.2003 passed by the learned IIIrd Additional Sessions Judge. Palamau at Daltonganj in Sessions Trial No.169 of 1999, convicting the appellants for the offences under Sections 302/34. IPC and 201, IPC and sentencing them to undergo R.I. for life under Section 302/34 and to pay a fine of Rs. 5000/- each, in default to undergo S.I. for a period of six months and R.1. for 7 years under Section 201. IPC. However, all the sentences were directed to run concurrently. 2. Prosecution case in short is as follows: the informant-Munarik Yadav PW 1 gave a fard-beyan at the police station on 27.7.1998 at about 5 a.m. along with the dead body of Ws wife (Parwati Devi) to the effect that on the previous day Le. 26.7.1998 at about 10 a.m. his wife went to jungle but she did not return for long time. The informant then went to Tngra at Kathartya Pahar to search her when he saw the appellants fleeing away after leaving the dead body of Ws wife in burning condition on the pyre. When he went near he found the smell of Kerosene Oil and dead body was burnt. His brother-in-law, Ramjit Yadav (PW 3) and son. Prawesh Yadav (PW 6) also went with him and they also saw the appellants fleeing away and they were chased also. It has been alleged by the informant that the reason for the incident is that the appellant wanted to take back the land purchased by the prosecution party. 3. On the next day. i.e. on 28.7.1998, appellant No. 1 was arrested from his house and appellant No.2 was arrested from his house after a week, whereas appellant No. 3 surrendered before the Court. On completion of investigation police submitted charge-sheet. The appellants pleaded not guilty and they faced the trial. 4. Mr. Yogesh Modi learned counsel appearing for the appellants assailed the impugned judgment .of conviction on the following grounds. Be submitted that PW 2 can not be believed as an eye-witness of assaulting the deceased by appellant No. 1 by tangi on her neck. PW 1 can also not be believed as an eye-witness. Other PWs who claim themselves to be eye-witnesses of seeing the appellants fleeing away from the place of occurrence can not be believed. 5. On the other hand. PW 1 can also not be believed as an eye-witness. Other PWs who claim themselves to be eye-witnesses of seeing the appellants fleeing away from the place of occurrence can not be believed. 5. On the other hand. Mr. Ravi Prakash, learned APP supported the case of the prosecution. 6. For the following reasons we are inclined to give the benefit of doubt to the appellants. In the FIR the informant (PW 1) did not say that the appellant No.2 i.e. his son had also gone to jungle. He only said that his wife (deceased) had gone to jungle. He claimed that he saw the appellants fleeing away from the place of occurrence after burning his wife on pyre. He also stated that PW 3. his brother-in-law, and his son Pravesh Yadav-PW 6 also went with him and they also saw the appellants fleeing away from the place of occurrence. But from the evidences of PWs 3 and 6, it appears that they went to the place of occurrence after one hour of the incident and therefore it can not be believed that PWs 3 and 6 could also see the appellants fleeing away from the place of occurrence. It further appears that the presence of PW 2 at the place of occurrence is also doubtful. PW 6, who is his own brother, simply said about his mother (deceased) that she went to the jungle for grazing she-goats. In para-8, this witness specifically said that his brother had not gone for grazing she goats. By this brother, he could mean only PW 2 as the other brother-PW B said that he went with other PWs to search his mother. None of these prosecution witnesses have stated in their deposition that PW 2, went to jungle for grazing she-goats in the morning and later on, the deceased lady Parwati went to jungle for serving food to PW 2. PW 8. another brother of PW 2 has also not stated that P.W-2 went to jungle for grazing she-goats. Therefore. in view of the evidence of PWs 6 and 8 the presence of PW 2 at the place of occurrence becomes doubtful. Moreover the evidence of PW 2 does not inspire confidence. He has inter alia said that he had gone to jungle for grazing she-goats. Therefore. in view of the evidence of PWs 6 and 8 the presence of PW 2 at the place of occurrence becomes doubtful. Moreover the evidence of PW 2 does not inspire confidence. He has inter alia said that he had gone to jungle for grazing she-goats. His mother came there with food and after taking food both were sitting there the appellants came and pushed his mother on the ground and then appellant No.1 assaulted his mother at her neck by tangi and then fled away from the place of occurrence and concealed himself in a bush. He further said that he did not see anything thereafter. He also said that he remained in bush for whole night and till about 8 a.m. the next morning he did not see any person near the place of occurrence. Then on the next day he again went to the place of occurrence while returning to his house and found the police party there. The other PWs have said that they went to jungle for searching the deceased and on the place of occurrence they did not find PW 2. PW 3 specifically said that they did riot find PW 2 near the place of occurrence. If PW 2 concealed himself in the bush on seeing the assault on his mother by the appellant No. 1 as well as other appellants why he did not appear before the other PWs. who reached near the place of occurrence after about 2-3 hours of the occurrence. It is also pertinent to note here that PW 7 has specifically said in paragraph 2 that PW 2 also went in jungle along with other witnesses in search of the deceased. 7. Then the prosecution has not proved that the seized soil contained Kerosene Oil. The doctor who conducted the post-mortem did not find any smell of Kerosene Oil. No container of Kerosene Oil was seized from the place of occurrence. PW 1 did not say that the appellants fled away along with container of kerosene oil in their hands. 8. It further appears that the I.O. has not been examined in this case who could clarify the major contradictions in the evidence of the witnesses. It also appears that there is some contradiction with regard to the description of the place of occurrence. The prosecution witnesses have controverted themselves on material points. 8. It further appears that the I.O. has not been examined in this case who could clarify the major contradictions in the evidence of the witnesses. It also appears that there is some contradiction with regard to the description of the place of occurrence. The prosecution witnesses have controverted themselves on material points. It also appears that there are contradiction with regard to the time of occurrence. 9. After going through the materials on records carefully we are satisfied that the appellants deserve the benefit of doubt. 10. In the result this appeal is allowed. The impugned judgment of conviction and order of sentence dated 28.3.2003 is set aside. Consequently appellant No.1. Kamlesh Yadav. who is in jail is directed to be released forthwith if not wanted in any other case. Appellant Nos. 2 and 3 who are on bail are discharged from liabilities of their respective bail bonds. Appeal allowed.