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2012 DIGILAW 676 (JHR)

Devendra Singh @ Debi Singh v. State of Jharkhand

2012-05-01

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court - Both these appeals arise out of the judgment dated 13th December, 2002 passed by Shri Harikesh Chand, Additional District and Sessions Judge, F.T.C. No.-II, Civil Court, Gumla in S.T.No.275 of 2001 convicting the appellants under Sections 302/34 I.P.C. and sentencing them to undergo R.I. for life. 2. The prosecution case in short is that the informant (P.W.-10) lodged Fard Bayan that his younger brother (deceased) was going with Jagarnath Singh (P.W. 6) and on the way appellant Krishna Singh was standing with 'Lathi'. Appellant Hira Singh assaulted him with wooden plank and the appellant Devendra Singh @ Debi Singh rushed to his house and brought 'Bhujali' and assaulted the deceased by 'Bhujali' and killed the brother of the informant with common intention, due to dispute between them over payment of money against 'Indira Awash' of P.W. 8 Lede Lohra (declared hostile). 3. Mr. A.K. Kashyap, Senior Counsel appearing in both the appeals assailed the impugned order and judgment on various grounds whereas Amaresh Kumar, A.P.P. supported the impugned judgment. 4. Statements made on behalf of the parties will be taken care of while recording our finding in this case and therefore, it is not necessary to reproduce them in detail. 5. Similarly, the prosecution case and the details of witnesses have been mentioned in the impugned judgment and therefore, it is not necessary to reiterate/repeat them in this judgment. 6. After carefully going through the records and hearing the parties at length, we are inclined to give benefit of doubt to the appellants for the following reasons:- (a) the informant Mahabir Sahu (P.W. 10) which has been projected as eye-witness does not appear to be an eye-witness. He inter alia said that after his brother Bisheshwar Sahu (deceased) and Jagarnath Singh (P.W.6) went together, he returned to his house. After about 5/7 minutes, he heard 'Halla' of his brother. He along with his other brothers rushed to the place of occurrence and saw the appellants assaulting him. But in his cross-examination, he said that when this witness along with his brothers were rushing to the place of occurrence, they met P.W. 6 on the way and all of them rushed towards the place of occurrence. He also said that when this witness reached at the place of occurrence, he saw the appellants fleeing away boarding on a vehicle. He also said that when this witness reached at the place of occurrence, he saw the appellants fleeing away boarding on a vehicle. Thus, it is not possible to believe that P.W. 10-informant is an eye-witness. (b) Similarly, it is not possible to believe that P.W. 3 and P.W. 4 are the other eye-witness as projected by the prosecution. In paragraph No.22 P.W. 10 specifically said that P.W. 3 and 4 along with others reached the place of occurrence after P.W. 10 reached there. (c) Thus, the only eye-witness on which the prosecution case is mainly based is P.W. 6 Jaganath Singh. There is variation in his statement and the Fard Bayan. According to the Fard Bayan, the appellant Krishna Singh was standing at the place of occurrence with 'Lathi' and appellant Hira Singh assaulted him with a wooden plank and in the meantime, appellant Devendra Singh @ Debi Singh rushed and brought 'Bhujali' from his house and assaulted the deceased with 'Bhujali' whereas P.W. 6 said that when he along with the deceased were going towards Palkot, near Lohra Bagicha, Appellant Hira Singh and Devendra Singh @ Debi Singh came from behind and Devendra Singh @ Debi Singh assaulted the deceased by 'Bhujali' on his head and stomach and Hira Singh assaulted the deceased by wooden plank. This witness further said that when the appellants threatened him, he went at some distance and started raising 'Halla" on which the villagers assembled and when he went with them at the place of occurrence, he found the deceased dead and then the appellants fled away by boarding on the vehicle. The statement of this witness is at variance with his statement made by him before the police under Section 161 Cr.P.C. Further this witness said that police recorded his statement after two days of the occurrence whereas it appears that the statement of this witness was recorded by the police after about 34 days though as per the prosecution this witness was very much present at the place of occurrence. (d) P.W. 10-informant repeatedly and specifically said that he along with others went to the Police Station and informed the police about the alleged occurrence. He clearly said that he informed the police that his brother was killed. (d) P.W. 10-informant repeatedly and specifically said that he along with others went to the Police Station and informed the police about the alleged occurrence. He clearly said that he informed the police that his brother was killed. Thus, though information was given to the police regarding a cognizable offence but there is nothing to show that any Fard Bayan was recorded at the Police Station. Such information was to be treated as the first information but it has not been brought on record. Then there was delay in sending the F.I.R. to the Court. It is said to have been sent on 8.4.2001 but it reached the Court on 10.4.2001. (e) From the evidence of the I.O. (P.W. 13) it appears that he did not seize the blood stained soil and wooden plank from the place of occurrence. The doubt in the prosecution case further gets support from the fact that no sketch map of the place of occurrence was prepared. A suggestion was given to the I.O. that he was describing the place of occurrence wrongly as he never visited the same. The informant said that the deceased took breakfast at about 7:30 a.m. The occurrence is said to have been taken place at 8:45 a.m. but the Doctor found that the stomach was empty. 7. Thus, after taking into consideration the entire facts and circumstances in totality, in our opinion, the prosecution has not been able to prove its case against the appellants beyond all reasonable doubts and therefore, the appellants deserve benefit of doubt. 8. In the result, the impugned judgment is set aside. The appellants Hira Singh and Krishna Singh are discharged from their bail bonds. 9. The appellant Devendra Singh @ Debi Singh is said to be in Jail for more than 11 years. He is directed to be released forthwith, if not wanted in any other case. Appeal allowed.