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2012 DIGILAW 1688 (JHR)

Brij Nath Rajbhar v. State of Jharkhand

2012-12-06

D.N.PATEL, PRASHANT KUMAR

body2012
JUDGMENT Per D.N. Patel. J.-The present appeal has been preferred against the judgment of conviction and order of sentence dated. 30.09.2003 and 01.10.2003 respectively passed by Additional District & Sessions Judge. Fast Track Court No.5., Dhanbad in S.T. No. 123 of 2002, whereby the present appellant-accused is mainly convicted for the offence punishable under Section 302 of the Indian Penal Code Against this judgment of conviction and order of sentence the present appeal is preferred. 2. It is the case of prosecution that on 8.10.2001 at about 6.45. a.m. at Quarter No.M/436 the appellant-accused committed murder of his son and daughter, namely, Gulshan Kumar and Pushpa Kumari respectively and also caused injuries to his wife namely. Gayatri Devi, who is PW 16 and also caused injuries to his son, namely Ravi Kumar, who has not been examined as witness aged about 6 years at that relevant time by knife. First Information Report was given by PW 3. Investigation was carried out. Several statements of the witnesses were recorded, charge-sheet was rued and case was committed to the Sessions Court and upon evidences on record the learned trial Court has convicted the appellant-accused mainly for offenses punishable under Section 302 of the Indian Penal Code for life imprisonment, as well as for the offence under Section 307 of the Indian Penal Code for 10 years rigorous imprisonment. Both the sentences have been ordered to run concurrently. 3. We have heard counsel for the appellant who has mainly submitted that the learned trial Court has failed to appreciate the facts. The prosecution has failed to prove, the case against the appellant-accused beyond reasonable doubt. Most of, the prosecution witnesses have turned hostile. The so-called eye-witness PW 16. who is wife of the deceased has also stated clearly in her deposition that appellant-accused has not caused any injury but somebody else caused injury whom she is not knowing. This witness has not been declared hostile. It is also submitted by learned counsel for the appellant that another eye-witness namely Ravi Kumar has not been examined as a. prosecution witness. Thus, there is no other material evidence on record proving the guilt of the appellant-accused beyond reasonable doubt. This witness has not been declared hostile. It is also submitted by learned counsel for the appellant that another eye-witness namely Ravi Kumar has not been examined as a. prosecution witness. Thus, there is no other material evidence on record proving the guilt of the appellant-accused beyond reasonable doubt. It is also submitted by learned counsel for the appellant that witnesses of the seizure list who are PWs 11 & PW 12 have also stated before the Court that the weapon alleged to have been recovered at the behest of the appellant-accused is not true. These PW 11 & 12 have stated clearly in their depositions that they have not seen the appellant - accused producing the weapon (knife). before the police. Thus, there cannot be any conviction based upon only on the evidence of Investigating Officer who is PW 7. This aspect of the matter has not been properly appreciated by the learned trial Court. Police is not at all eye-witness of the incident and therefore the judgment of conviction and order of sentence passed, by the trial Court deserves to be quashed and set aside. 4. We have heard counsel for the State-A.P.P. who has submitted that no error has been committed by the learned trial Court in convicting the appellant for committing murder of his son and daughter, namely, Gulshan Kumar and Pushpa Kumari. The murder has taken place in the house of the appellant-accused: The weapon has been recovered on the behest of the appellant-accused. Seizure list is at Ext-6 and signature of PWs. 11 & 12 have been proved at Ext. - 9 & 9/1. It is also submitted by learned counsel for the State - A.P.P. that the whole incident has taken place in the house of the appellant-accused at early morning hours. Wife is a injured eye-witness, who is PW 16 and looking to the evidences of PW 16 to be read with evidences of PW 11 & 12 of witnesses of seizure list along with deposition of Investigating Officer, who is PW7, no error has been committed by the learned trial Court in convicting the appellant-accused and therefore the appeal may not be entertained by this Court. 5. Having heard counsels for both the sides and looking to the evidences on record. 5. Having heard counsels for both the sides and looking to the evidences on record. it appears that the incident has taken place on 8th October, 2001 at about 6:45 a.m. PW 3 is the informant who has given information about the murder of Gulshan Kumar and Pushpa – Kumari, who are the son and daughter of the appellant - accused at Qtr. No. M/436 of Bharat Coking Coal Limited. Sudamdih. Looking to the evidences of prosecution witnesses most of the prosecution witnesses have turned hostile and have not supported the case of prosecution. PW 16 is the wife who is an injured eye-witness of the incident. The case of prosecution is mainly based upon the evidence of Gayatri Devi. who is wife of the appellant and mother of the deceased children. Looking to her deposition. it appears that she has stated that somebody else caused injury to her and she became unconscious. Looking to her deposition and her cross-examination, she appears to be hearsay witness and the guilt of the appellant-accused has not been proved by, this witness. She has not supported the case of' the prosecution, though she has not been declared hostile, but she has not stated the name of appellant-accused, who has caused the injury on the body of the deceased. There is one more witness namely Ravi Kumar who is son of the appellant-accused, who was also injured and who was examined by doctor PW 6. but this injured eye-witness has not been examined by the prosecution. So far the another eye-witness PW 3. who is informant, is concerned, looking to his deposition he has not supported the case of prosecution and he has been declared hostile witness. Thus, there is no eyes witness other than those PW 16, Ravi Kumar and PW 3. 6. Now we are examining the witnesses of seizure list, who are PW 11 & 12. Looking to the deposition of these two witnesses of seizure list PW 11 & 12 and looking to their cross-examination, they have clearly stated before the learned trial Court that they have not seen the appellant-accused presenting the weapon before the police. Thus, seizure list is not proved by these two witness. Therefore, it cannot be said that the weapon used in committing the offence is recovered at the behest of the appellant accused. 7. Thus, seizure list is not proved by these two witness. Therefore, it cannot be said that the weapon used in committing the offence is recovered at the behest of the appellant accused. 7. Now the witness left out is to be examined is PW 7. by us who is police witness. We have perused the deposition of PW 7, who is police witness. Looking to his deposition he has proved the scene - of offence and he has stated about the recovery of the weapon. He has also proved the inquest panchnama but only because, the police stated certain facts of the scene of offence and the inquest panchnama i.e. not a proof of the guilt of the appellant-accused beyond reasonable doubt, for committing murder of the deceased. Similar is a case with the medical evidence, they are not the eye-witnesses of the incident. 8. Thus, over all looking to the evidences on record the prosecution has failed to prove the offence of murder of the deceased by the appellant beyond reasonable doubt. This aspect of the matter has not properly appreciated by the learned trial Court. 9. We, therefore, quash and set aside the judgment of conviction' and order of sentence dated 30.09.2003 and 01.10.2003 respectively passed by the Additional District & sessions Judge. Fast Track Court No.5. Dhanbad in Sessions Trial No. 123 of 2002 Appellant/accused. Namely, Drij Nath Rajbhar is directed to be related forthwith from the judicial custody if his presence is not required in the jail for any other reason. The appeal is allowed and disposed of. Appeal allowed.