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2012 DIGILAW 916 (JHR)

Jitendra Kumar Bhagat v. State of Jharkhand

2012-07-03

D.N.UPADHYAY, R.K.MERATHIA

body2012
Judgement By Court: This appeal arises from the judgment of conviction and order of sentence dated 24.02.2005 and 26.02.2005 respectively passed by the Learned Additional Sessions Judge, Fast Track Court No. IV, Jamshedpur, East Singhbhum in Sessions Trial No. 368 of 2003 / G.R. No. 762 of 2003, convicting the appellant under sections 302/34 IPC and sentencing him to undergo R.I. for life . 2. The prosecution case in brief is that the informant-Santosh Gupta (PW-6), younger brother of the deceased-Ashok Gupta, lodged a fardbeyan on 05.05.2003 at 00.30 hrs at hospital before the police that his family owns a Tata-407 truck for their livelyhood. In the previous night i.e. on 04.05.2003, he along with his brother (deceased) was sitting in the courtyard. At about 10.30 AM Dharmendra Singh, Jitendra Bhagat and one Nepali along with 2-3 boys entered into his aangan. The appellant threatened Ashok, to which he wanted to give reply, but the appellant assaulted him with sword in his hand with intention to kill him, but Ashok sustained injuries on his left hand when he tried to save himself from such assault. The informant also tried to save Ashok, but he was caught by other persons. In the meantime, Dharmendra and Nepali assaulted the deceased with Bhujali in their hands and they all went away extending threatenings. Ashok sustained bleeding injuries. On hulla, neighbours assembled. Ashok was taken to the hospital where he died. It was further alleged that the deceased told the informant that the appellant had asked for the truck which he do not gave and on this, there was quarrel between them. 3. Mr. Sri Krishna Murari, learned counsel appearing for the appellant, assailed the impugned judgment on various grounds and submitted as follows: PW-6 has not been believed as an eyewitness by the trial court; PWs – 1 & 7, the other eyewitnesses projected by the prosecution, are also not the eyewitnesses; moreover, their version that the deceased disclosed the names of the assailant was not mentioned in the FIR; other accused persons against whom also there were charges under section 34 IPC, having been acquitted, the appellant should also have been acquitted. He further submitted that the appellant should be given the benefit of doubt. He lastly submitted that the appellant is in jail for about nine years and he is suffering from AIDS. 4. He further submitted that the appellant should be given the benefit of doubt. He lastly submitted that the appellant is in jail for about nine years and he is suffering from AIDS. 4. On the other hand, learned counsel for the State supported the impugned judgment. 5. We find force in the submission of Mr. Sri Krishna Murari that the prosecution has not been able to prove it's case against the appellant beyond all reasonable doubts. PW-6, the informant, brother of the deceased, has been rightly disbelieved by the trial court as an eyewitness. There was no mention in the FIR about the presence of the mother of the deceased (PW-1) and the wife of the deceased (PW-7), but they have been projected as eyewitnesses. It was not disclosed in the FIR that the deceased told the names of the assailant, but PWs – 1 & 7 said that they have learnt from the deceased about the names of the assailant. PW-8, the investigating officer, said that some rooms were given on rent to some other persons, but no independent witness has been examined in this case. It appears that the prosecution party PWs – 1, 6 and 7 themselves have demolished their own case for the reasons best known to them. PW-6, the informant, has given a different story in his deposition in the court than what was given by him in the fardbeyan. As per the FIR, the deceased was taken to the hospital by PWs – 2 and 3, but these witnesses have not said that the deceased disclosed the names of the assailant, as deposed by PWs – 1, 6 and 7. 6. After hearing the parties at length and carefully going through the records, we are inclined to give the benefit of doubt to the appellant. 7. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence as passed by the trial court against the appellant, is set aside. The appellant is acquitted of the charges. The appellant, Jitendra Kumar Bhagat, is in jail. He is directed to be released forthwith, if not wanted in any other case.