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2016 DIGILAW 50 (JHR)

Lakhan Nagesia v. State of Jharkhand

2016-01-06

R.R.PRASAD, RAVI NATH VERMA

body2016
ORDER : The appellant Lakhan Nagesia was put on trial in Sessions Trial No. 159 of 1996 on the accusation of committing murder of one Mangri Devi. The trial court having found the appellant guilty convicted him for the offence punishable under section 302/34 IPC vide its judgment of conviction dated 24.2.2004 and sentenced him to undergo rigorous imprisonment for life vide its order dated 25.2.2004. 2. The case of the prosecution is that the informant Sundair Devi (PW4) who was living with her mother Mangri Devi (deceased) had left home in the night 25.4.1995 for coming to the place of her husband. On the next day, at about 12 O' clock, she came to know that her mother has been murdered. On getting this information, she came along with her husband and found he mother dead. There, she came to know that this appellant as well as Kander Nagesia had committed murder of her mother and while they were fleeing away after committing murder, they were caught hold by the villagers Jogeshwar Oraon PW2 and Dalku Oraon PW3. After a while, the accused Kander Nagesia fled away from their custody, whereas this appellant was under the custody of the villagers and he was seen having spots of blood over his body. The informant Sundair Devi sent the chaukidar to the police station for giving information. On getting information, when SI Mahadeo Oraon PW8 came to the place of occurrence, he recorded the fard beyan (Ext. 4) of the informant upon which a formal FIR was drawn and the case was registered as Kisko PS Case No. 20 of 1995 against this appellant as well as Kander Nagesia. 3. The investigating officer (PW8) took up the investigation during which he held inquest over the dead body of the deceased and prepared an inquest report (Ext. 1) and thereafter the dead body was sent for post mortem examination which was conducted by Dr. Sunil Minz (PW6) who upon holding autopsy on the dead body of the deceased, did find the following injuries on the person of the deceased : (I) Ligature mark below Thyroid cartilage encircling the neck horizontally; legature mark was about 1” in breadth; (ii) Multiple abrasions about 1/4 c.m. X 1/4 c.m. X 1/4 c.m. on front of neck, above and below the ligature mark. (iii) Multiple abrasions about 1/4 c.m. X 1/4 c.m. X 1/4 c.m. on the face and forehead. (iv) Bruise about 3” x 2” on left side of the chest at 3rd and 4th ribs. (v) Bruise about 3” x 3” on right side of chest. 4. During investigation, when the investigating officer did find injuries on the person of the appellant, he got his injuries examined by Dr. Ram Prasad Sigh (PW7) who upon examining the appellant did find the following injuries on his person. (I) Swelling 4” x 3” on the left elbow; (ii) Swelling 3” x 3” on the dorsam of left palm; (ii) Bruise 4” x 2”, 5” x2”, 3”x2” on the left scapular region of the back; (iv) Bruise 5”x2”, 3”x2”, 3”x2” on the right (v) scapular region of the back (v) Bruise 6” x 2” vertically on the back. Upon closure of the investigation, when the charge sheet was submitted against the appellant and other accused showing him absconder, cognizance of the offence was taken against the appellant. 5. Subsequently, when the case was committed to the court of sessions, the appellant was put on trial during which the prosecution in order to prove its case, examined altogether eight witnesses. Of them, PW1 Adu Oraon and PW5 Roopdev Lohra are the witnesses to the inquest, whereas Sundair Devi (PW4) is the informant who has testified that when she came to know from some children at her husband's place that her mother had been killed, she came to the place of her mother and found her mother dead. She has further testified that she did not see anyone there near the house. PW2 Yogeshwar Oraon and PW3 Dalku Oraon have testified that while they were in their respective houses, they heard hulla coming from the house of the deceased. When they came, they found the deceased dead. A large number of villagers had assembled there and one Kandar Nagesia and a person, whose name the witness PW2 did not disclose, were the persons on whose bodies spots of blood were there. Both of them confessed before them that they are the persons who killed the deceased by assaulting her through stones. So far as PW3 is concerned, he has named this appellant as well as other accused Kandar Nagesia. 6. Both of them confessed before them that they are the persons who killed the deceased by assaulting her through stones. So far as PW3 is concerned, he has named this appellant as well as other accused Kandar Nagesia. 6. The trial court did record that though nobody had seen anybody committing murder of the deceased, but this appellant and one another accused were there near the house of the deceased who confessed their guilt and on their persons, blood stains were also there and thereby the trial court did find this appellant guilty and accordingly recorded the order of conviction and sentence of the appellant which is under challenge in this appeal. 7. Having heard learned counsel for the appellant and the learned counsel for the State, we do find that admittedly none of the witnesses had seen this appellant and the other accused committing murder. However, according to PW2, he had seen one Kander Nagesia at the place of occurrence where as per the evidence of PW3 he had seen this appellant and Kandar Nagesia at the place of occurrence on whose persons blood stains were there and that they had confessed before them that they had committed murder of the deceased. Thus, the trial court took both the circumstances as incriminating against the appellant, but so far as extra judicial confession is concerned, that does not appear to be voluntary as we have already seen that the appellant was having a number of injuries on his person which is evident from the evidence of PW7 Dr. Ram Prasad Singh, who had examined the appellant during investigation. The presence of injuries on the person of the appellant clearly indicates that whatever he is said to have disclosed before PWs 2 and 3, was not voluntary and thereby the said extra judicial confession cannot be used against the appellant. The second incriminating material seems to be the presence of the blood stains on the person of the appellant which according to PWs 2 and 3 were there on the person of the appellant. When the investigating officer reached the place of occurrence on getting information through chaukidar, he did find this appellant injured and on account of that, the investigating officer got him examined by Dr. Ram Prasad Singh (PW7). When the investigating officer reached the place of occurrence on getting information through chaukidar, he did find this appellant injured and on account of that, the investigating officer got him examined by Dr. Ram Prasad Singh (PW7). Therefore, in these circumstances, presence of blood spots cannot be taken to be that of the deceased in absence of examination of blood appearing on the body of the appellant by the forensic science laboratory . 8. Under the circumstances, we do find that the prosecution has failed to establish the charge against the appellant. In such event, the trial court seems to have committed an illegality in recording the order of conviction and sentence against this appellant and hence it is fit to be set aside. In the result, this appeal is allowed and the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Lohardaga, in Sessions Trial No. 159 of 1996 under sections 302/34 of the Indian Penal Code is here by set aside. Consequently, the appellant is acquitted of the charge. The appellant is in custody. He is directed to be released forthwith, if not wanted in connection with any other case. Appeal allowed.