Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 296 (JHR)

Janeshwar Dehri v. State of Jharkhand

2016-02-09

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 7th December, 2007 passed by the 1st Additional Sessions Judge, Dumka in connection with Sessions Trial Case no. 24 of 2005 corresponding to G.R. Case no. 903 of 2004 arising out of Gopikandar P.S. Case no. 20 of 2004, whereby the appellant has been held guilty for the offence punishable under sections 302, 201 Indian Penal Code and sentenced to undergo rigorous imprisonment for life u/s 302 IPC and rigorous imprisonment for five years u/s 201 IPC. 2. The fact emerges from the fard-beyan of Shyam Lal Dehri recorded on 11.9.2004 at 8:30 hrs. at village Dumartalla near Doka Bahiyar Joriya, in brief, is that wife of appellant was missing since last Saturday for which a search was initiated by the informant and his companion at the instance of village Pradhan. This fact was brought to the notice of informant and other witnesses that the deceased had gone to Resambari to provide snacks to her children. In the mean time, the appellant also reached there and asked his eldest daughter Dhanmuni Rani to fetch water after which she left the place. After her return, she did not find her mother present there. The youngest brother Musha Dehri told that his father has caused injury to her mother by means of iron rod and both of them disappeared. In course of search dead body of Sukhiya @ Sumitra Devi was recovered from a drain situated at Doka Bahiyar. The matter was informed to the police and fard-beyan of informant was recorded. On the basis of fard-bayan Gopikandar P.S. Case no. 20 of 2004 dated 11.9.2004 U/Ss. 302, 201 IPC against the appellant Janeshwar Dehri was registered. The police after due investigation submitted charge sheet and, accordingly, cognizance was taken and case was committed to the court of Sessions and registered as Sessions Trial No. 24 of 2005. 3. The charges under section 302, 201 of the Indian Penal Code were framed against the appellant Janeshwar Dehri to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether seven witnesses including the informant, the doctor and the investigating officer. 3. The charges under section 302, 201 of the Indian Penal Code were framed against the appellant Janeshwar Dehri to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether seven witnesses including the informant, the doctor and the investigating officer. The learned Sessions Judge on the basis of evidence and documents available, held the appellant guilty for the offence punishable under sections 302, 201 of the Indian Penal Code and sentenced him as indicated above. 4. The appellant has assailed impugned judgment mainly on the ground that children of the deceased who are witnesses to the occurrence have not been examined. The information regarding murder of Sumitra @ Sukhiya committed by her husband Janeshwar Dehri (Appellant) derived from the mouth of Musha Dehri, son of deceased aged about three years to her elder sister Dhanmuni Rani who was then aged about ten years. The village Pradhan PW-4 did not say that Dhanmuni Rani had come to him and disclosed about the incident rather, he has said it was Musha Dehri, youngest son of the deceased had informed about missing of his mother Sumitra @ Sukhiya. It is submitted that village Pradhan did not discharge his obligation by reporting the matter to the police immediately rather, he had instructed PW 5 and one Som Hansda to go and enquire whether Sumitra Devi had gone to her parents' house or not. When they returned from the home village of Sumitra Devi and reported that Sumitra had not gone to her parents' house they were further directed to make a search of Sumitra Devi at nearby places. Thereafter, PW-1 to PW-5 started searching Sumitra @ Sukhiya Devi and in course of that they went to Doka Bahiyar where dead body of Sukhiya @ Sumitra lying in the nearby drain covered with sand, leaves and branches of trees, was recovered. The matter was reported to the police and then the police came in action. It is submitted that dead body was highly decomposed and according to deposition of Dr. Shailendra Kumar PW-7, death had occurred ten to fifteen days prior to the date of postmortem examination. Learned counsel Sri Naveen Kumar Jaiswal appointed as Amicus Curiae has submitted that the prosecution has miserably failed to bring home the charges. It is submitted that dead body was highly decomposed and according to deposition of Dr. Shailendra Kumar PW-7, death had occurred ten to fifteen days prior to the date of postmortem examination. Learned counsel Sri Naveen Kumar Jaiswal appointed as Amicus Curiae has submitted that the prosecution has miserably failed to bring home the charges. All the material witnesses PW1 to PW-5 are hearsay witnesses and information regarding murder of Sukhiya @ Sumitra Devi derived to them from the mouth of Musha Dehri minor son of deceased or from his elder sister Dhanmuni Rani. The fact brought on record by the hearsay witnesses cannot be accepted to hold the appellant guilty for the offence of murder, without being corroborated by Dhanumani or her younger brother. Father-in-law of the deceased had also not been examined. Only because the appellant has failed to give cogent answer against missing of his wife, he cannot be held liable for her murder. The Investigating Officer who has conducted investigation has not been examined. Ram Bilas Singh PW-6 S.I. Of Police had simply submitted charge sheet against the appellant. Practically there is no evidence against the appellant to hold him guilty. 5. Learned A.P.P. has submitted that the appellant who happens to be husband of the deceased did not make effort to search out his wife. He did not report the matter to any one. The evidence clearly indicates that he had followed his wife Sukhiya @ Sumitra who had gone to provide snacks to her children who were playing at Resambari, a place situated at a distance of about ½ k.m. from the house of the deceased. The prosecution has adduced evidence that the appellant had gone to the place where the deceased with her children was present. Dhanmuni Rani was directed to fetch water. When she returned back she did not find her mother present but, appellant was present over there. When she asked about her mother, he told that he would be going to search her. Since the children of the deceased left the village they could not be examined. 6. We have examined the case record and perused the evidence and impugned judgment. Admittedly, the investigating officer who had conducted investigation has not been examined. The important witnesses, children of the deceased have not come forward to support the contention made by PW1 to PW-5. Since the children of the deceased left the village they could not be examined. 6. We have examined the case record and perused the evidence and impugned judgment. Admittedly, the investigating officer who had conducted investigation has not been examined. The important witnesses, children of the deceased have not come forward to support the contention made by PW1 to PW-5. The hearsay information brought on record if not supported by the witness from whom that information derived to the witnesses, that statement will not be admissible. PW-1 to PW-5 appears to be witnesses of formal nature and they did not have personnel knowledge about the occurrence. In the circumstances, we do not feel inclined to up hold the judgment of conviction and sentence passed on the statement of such hearsay witnesses. 7. In the result, impugned judgment of conviction and order of sentence dated 7th December, 2007 passed by Additional Sessions Judge, Dumka in connection with Sessions Trial Case no. 24 of 2005 corresponding to G.R. Case no. 903 of 2004 arising out of Gopikandar P.S. Case no. 20 of 2004 is hereby set-aside. The appeal stands allowed. The appellant is directed to be released forthwith if not wanted in any other case and for that convicting/successor court shall issue appropriate direction, if necessary. Appeal allowed.