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2013 DIGILAW 1251 (PAT)

Kailash Dome v. State of Bihar

2013-10-23

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2013
JUDGMENT : Per S.K. Sharama, J. Kailash Dome and Gyani Dome have been convicted and sentenced on 3.12.1987 by the learned 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 231/86/176/86 and 416/86/180/86 whereby the conviction has been recorded under Sections 302/34 of the Indian Penal Code and each of them were ordered to undergo the imprisonment for life. Sessions Trial Nos. 231/86 and 416/86 were committed to the Court of Sessions on two different dates but they were amalgamated as both the cases have arisen out of Bhagwan Bazar P.S. Case No. 180/83 dated 23.11.1983. 2. One Jhulan Dome was stabbed to death in the late night of 23.11.1983. The matter was reported to the police by Chameliya Domin (PW 2). She carried the dead body of Jhulan Dome to the police station and informed that on 23.11.1983 at 7.00 p.m. Jhulan Dome was pushed down after scuffling by Gyani Dome and thereafter, he was stabbed by Kailash Dome. One Achhay Lal Dome has flashed the torch on Jhulan Dome. The fardbeyan (Ext. 2) resulted into the formal FIR (Ext. 1) and investigation commenced. The inquest report (Ext. 3) was prepared. The post-mortem examination report of the dead body of Jhulan Dome (Ext. 6) was procured. Place of occurrence was inspected by the Investigating Officer (PW 5). The statements of the witnesses were recorded. The police found the occurrence true and submitted charge-sheet. After cognizance, the case was committed to the Court of Sessions where the charge under Sections 302/34 was explained to both the accused to which they pleaded innocence, so the trial proceeded. 3. Before the trial Court, the prosecution has examined six witnesses to substantiate its case. They are PW 1 Prabhavati, PW 2 Chameliya Domin, PW 3 Mathura Dome, PW 4 Sursati, PW 5 Kailashpati Chaube and PW 6 Kamal Kumar. 4. In the paper book, the seriatim of the witnesses has not been mentioned properly. PW 1 Prabhavati has been shown to be examined on 28.3.1987 but prior to that Chameliya Domin was already examined on 9.8.2006 and Jinat Hussain on 9.8.2006. Similarly PW 3 has been shown to be examined on 31.3.1987. 5. It appears that the deposition of PW 2 has been reconstructed by the trial Court on the strength of order dated 17.4.2006 of this Court. 6. The doctor of the case was not examined. Similarly PW 3 has been shown to be examined on 31.3.1987. 5. It appears that the deposition of PW 2 has been reconstructed by the trial Court on the strength of order dated 17.4.2006 of this Court. 6. The doctor of the case was not examined. Other eye-witnesses Chunmuniya Domin, Ram Singoria Domin etc. were also not examined. 7. The learned trial Court after considering the evidence on the record and after hearing the submission of learned counsel found that the prosecution has succeeded to prove the charge against the accused persons beyond shadow of all reasonable doubts and judgment of conviction and order of sentence was recorded. 8. This Court is required to see as to whether the learned trial Court has arrived at a correct finding on the basis of evidence produced before it or not. 9. The defence of the accused was that from beginning Jhulan Dome was a notorious dacoit of locality and he was killed elsewhere and the accused persons were roped in this case due to enmity. 10. The informant of the case has been examined as PW 2. She has not stated anything about the occurrence of killing of Jhulan Dome. She has not been named any of the accused who might have killed the deceased. Therefore, the evidence of informant does not show any light on the prosecution version or with regard to the occurrence which is for adjudication before us. 11. PW 4 is not a witness of occurrence and he has come later on after receiving information. Therefore, his evidence does not show any light on the occurrence or implication. 12. PW 5 has come to support the prosecution case and has supported PW 1. 13. The doctor of the case unfortunately has not been examined and no explanation has been given for his non-examination. No doubt, the post-mortem report has been formally exhibited but that was at the behest of formal witness who was not acquainted with the occurrence. 14. The defence has examined DW 1 who has proved the protest petition filed by the informant which was marked as Ext. A and signature of vakalatnama of the informant which was marked as Ext.A/1. 15. The learned amicus curiae appearing on behalf of the appellants has submitted that the prosecution has withheld the natural witness who was present at the time of the occurrence. A and signature of vakalatnama of the informant which was marked as Ext.A/1. 15. The learned amicus curiae appearing on behalf of the appellants has submitted that the prosecution has withheld the natural witness who was present at the time of the occurrence. It has been submitted that Dipti Dome was present but there was no explanation as to why he was not examined. 16. It appears that Dipti Dome was not examined by the Investigating Officer, therefore, his non-examination caused prejudice. The evidence has come that Chunmunia Domin was present at the place of occurrence during occurrence but the Investigating Officer has not examined Chunmunia and there is no explanation as to why the Investigating Officer withheld to examine most natural witness of the occurrence as she is the mother of the deceased and was present at the place of occurrence would have been the most important witness. 17. Regarding place of occurrence, the initial statement has come through PW 1 who has stated in para 22 that blood has spread over an area of 'One Bitta' but that evidence was corroborated by other witnesses arid eye-witness's account was that blood was spread over one 'Bitta' but the Investigating Officer has inspected' the place of occurrence at 9.40 p.m. i.e. just after 2 hours and 40 minutes but no blood was found at the place of occurrence. Non-finding of blood at the place of occurrence gives credence to the defence version that occurrence was not committed at the place of occurrence which has been claimed by the prosecution, rather, it was elsewhere. Not only that this Court is feeling handicapped due to absence of the doctor's evidence. Mere exhibiting post-mortem report is not enough in absence of any plausible reason for non-examination of the doctor. These facts are too vital to affect the total credibility of the prosecution version. The aforesaid lapses of the prosecution have gone to the root of the matter and affected adversely the prosecution case. The prosecution is not required to take its case in such a casual manner as has been done in the present case. In such sketchy and evasive evidence, the judgment of conviction cannot be sustained. 18. Considering the facts and circumstances and also evidence on the record, we find and hold that the prosecution has failed to substantiate its case beyond shadow of all reasonable doubts. In such sketchy and evasive evidence, the judgment of conviction cannot be sustained. 18. Considering the facts and circumstances and also evidence on the record, we find and hold that the prosecution has failed to substantiate its case beyond shadow of all reasonable doubts. The appellants are entitled to get the benefit of doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted by giving them the benefit of doubts. They are discharged from the liabilities of their bail bonds. 19. In the result, this appeal is allowed. 20. Let a copy of the first page and the last page of the judgment be given to Mrs. Vimala Kumari, learned amicus curiae so that she may be able to get the prescribed fee from the Patna High Court Legal Service Committee. Appeal allowed.