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2012 DIGILAW 86 (JHR)

Kamlesh Yadav v. State of Jharkhand

2012-01-17

D.N.UPADHYAY, R.K.MERATHIA

body2012
Judgment By Court: Heard Mr. Nand Kishore, learned counsel appearing for the appellant Kamlesh Yadav (informant), Mr. D.K. Chakrabarti, appearing for the State and Mr. A.K. Das, learned counsel appearing for the private respondents and perused the lower Court records. 2. These appeals arise from the judgment of acquittal. 3. Learned counsel appearing on behalf of appellant submitted that it is true that in the F.I.R. the informant (PW-12) did not specifically say about causing injury by tangi on head of Savitri Devi (deceased) but F.I.R. is not encyclopedia and in the evidences the eye witnesses namely PW-3 (injured witness), PW-4 and PW-12 have said about assault by tangi on the head of Savitri Devi. It is further submitted that the defence story of accidental death was wrongly believed by the trial Court. The impugned judgment was assailed on 1. 2. the other grounds also. 4. On the other hand, Mr. Das, in support of the impugned judgment submitted that there are major and vital contradictions in the prosecution case. In the F.I.R. PW-12-informant specifically said that during quarrel over drainage of water from chapakal, there was quarrel between the parties during which accused Upendra Sao brought lathi-danda from his house and assaulted the deceased and PW-3. PW1 and 2 also did not say about inflicting injury by tangi. But PW-3, 4 and 12 said that tangi was also used and there was assault by tangi on the deceased. Moreover, tangi assault has been attributed to one or other accused at one or other place and there is no consistency on this aspect in the prosecution case. He further submitted that on trivial issue of drainage of water there could be no motive or intention to kill. He also submitted that as per the evidence of the doctor, the fatal injury was the incised wound over middle of scalp causing fracture. The other injuries were two bruises on nose and forehead and two swelling on face and scalp. According to the doctor the said fatal injury was caused by sharp cut instrument. Thus, there are vital contradictions in the manner of occurrence. Referring to the judgment reported in (2008) 10 SCC 450 , Ghurey Lal Vrs. The other injuries were two bruises on nose and forehead and two swelling on face and scalp. According to the doctor the said fatal injury was caused by sharp cut instrument. Thus, there are vital contradictions in the manner of occurrence. Referring to the judgment reported in (2008) 10 SCC 450 , Ghurey Lal Vrs. State of Uttar Pradesh he submitted that if two views are possible, the appellate Court should be slow in infering with the judgment of acquittal, if the judgment is not perverse and is based on consideration of the materials available on the record. 5. It appears that the occurrence is not disputed. As per the prosecution case, the accused persons came near the house of the informant due to drainage of chapakal water flowing on the road. There was quarrel between the parties, during which it is alleged that accused Upendra Sao brought lathi-danda from his house. In the evidences it is said that he also brought tangi. Then there was assault by lathi-danda and tangi on the informant party due to which the deceased sustained and succumbed to the injuries. PW-3 got a swelling injury on the shoulder but so far as the manner of occurrence is concerned, there are vital contradictions in the prosecution case. In the F.I.R. it was specifically said by PW-12-informant that accused Upendra Sao brought lathi-danda from his house and the accused 3. persons caused assault by lathi-danda but the doctor found the fatal injury on the head of the deceased to be incised injury causing fracture of skull bone. The alleged eye witnesses are PW-1, 2, 3, 4 and 12. PW-1 said that she reached after the occurrence. PW-2 has not said anything about causing injury by tangi though PW-3, 4 and 12 said about causing injury by tangi but they also are not consistent as to which of the accused gave tangi blow on the head of the deceased. Though we are not satisfied with the defence version of accidental death, but even if we take a different view, it will not be proper to interfere with the judgment of acquittal as on careful examination of the materials on record, it appears that learned trial Court has taken into consideration the respective cases of the parties and the materials brought on record by them and has recorded the order of acquittal giving reasons in detail. 6. 6. Taking into consideration the entire case in totality, we are not inclined to interfere with the impugned judgment. 7. Accordingly, these appeals are dismissed.