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2016 DIGILAW 674 (JHR)

Ramjeet Lohra v. State of Jharkhand

2016-04-21

D.N.UPADHYAY, RATNAKER BHENGRA

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JUDGMENT : D.N. Upadhyay, J. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22.06.2004 and 23.06.2004 respectively passed by the Addl. Sessions Judge, Fast Track Court-I, Gumla in connection with Sessions Trial No. 35 of 2002 corresponding to G.R. Case No. 470 of 1998 arising out of Dumri P.S. Case No. 12 of 1998 whereby the appellants have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs.2500/- each and in default of payment of fine, six months S.I. has been inflicted. 2. The facts emerging from fardbeyan of Bipata Khirwar recorded on 26.07.1998 at 11.00 a.m. at village Barwadih are that on the same date at about 8.30 a.m. the informant along with Devnandan Khairwar (sister's son of the informant) went to the house of appellants to bring Devaki Devi who had eloped from her matrimonial home and started living with appellant Ramdayal Lohra as his wife. The appellants did not agree to leave Devaki (sister of the deceased) as a result exchange of hot words and abuses took place between them and thereafter the appellants restrained Devnandan and caused assault to him by means of Lathi, Balua etc. It is alleged that appellant Ramjeet Lohra caused injury to Devnandan by means of Balua on his head as a result he sustained injuries and fell down. In the mean time, Sawni Devi PW5 (sister of the informant) reached to the place and tried to save her son Devnandan but could not succeed because Ramjeet Lohra further inflicted injuries on the person of Devnandan by means of Balua and killed him. The informant was also subjected to assault. On the basis of fardbeyan of Bipata Khairwar, Dumri P.S. Case No. 12 of 1998 under Sections 323, 324 & 302/34 of the Indian Penal Code was registered against the appellants who are named in the First Information Report. After due investigation, charge-sheet was submitted and accordingly, cognizance was taken and the case was committed to the court of sessions and registered as Sessions Trial No. 35 of 2002. Charges under Sections 302/34 and 307 of the Indian Penal Code were framed to which the appellants pleaded not guilty and claimed to be tried. After due investigation, charge-sheet was submitted and accordingly, cognizance was taken and the case was committed to the court of sessions and registered as Sessions Trial No. 35 of 2002. Charges under Sections 302/34 and 307 of the Indian Penal Code were framed to which the appellants pleaded not guilty and claimed to be tried. To substantiate the charges, prosecution has examined altogether seven witnesses and proved documents like post mortem report, inquest report, seizure list, formal F.I.R. etc. The learned trial judge, placing reliance on the evidence and documents available on record, held the appellants guilty under Section 302/34 of the Indian Penal Code and inflicted sentence as indicated above. 3. Appellants have assailed the impugned judgment on the ground that informant has not been examined and therefore, the contention made in the fardbeyan has not been proved. Since the scribe of the fardbeyan has also not been examined, the fardbeyan has formally been proved by PW7 who is an advocate clerk and therefore, First Information Report has not been proved and question of corroborating or contradicting the First Information Report does not arise at all. The basic document F.I.R., which put the law into motion, has not been proved. It is submitted that Mohan Kumar PW1 has been declared hostile and he has not supported the prosecution case. Jira Chik Baraik PW2, Mahendra Baiga PW3, Budhram Chik PW4 are the hearsay witnesses and PW7 Maheshwari Prasad, who is an advocate clerk, is a formal witness. Entire prosecution case is banking upon the evidence of Sawani Devi PW5 who happens to be mother of the deceased. By referring evidence of Sawni Devi it is submitted that she is not an eye witness. There was no occasion for her to remain present at the place of occurrence. She had not been accompanying the informant and the deceased at the time of occurrence. She is resident of another Tola. It is unknown as to how she reached to the place of occurrence. She herself has admitted that she did not raise alarm at the time of occurrence to attract anyone and that conduct of PW5 is not acceptable. She has stated that she was also assaulted by the appellants by fists and slaps and she was examined by the doctor. As per fardbeyan, informant had also sustained injuries and he was examined by the doctor after the occurrence. She has stated that she was also assaulted by the appellants by fists and slaps and she was examined by the doctor. As per fardbeyan, informant had also sustained injuries and he was examined by the doctor after the occurrence. No doctor has come forward to prove any injury report relating to informant or PW5. Dewaki Devi happens to be daughter of the informant and she was residing in the house of appellants but she did not come forward either to support or to contradict the First Information Report. The manner of occurrence and the weapon used as stated by PW5 are not consistent. In her examination-in-chief she has stated that Ramdayal had assaulted the deceased by means of Lathi but in her cross-examination she says that Ramdayal had caused injury to deceased on his chest by means of dagger. The Investigating Officer has not been examined and therefore, fardbeyan, inquest report, seizure list, formal F.I.R. have not properly been proved. The learned trial judge has committed error by holding the appellants guilty relying on solitary testimony of PW5. 4. Learned A.P.P. has opposed the argument and submitted that appellants are resident of Lohra Tola whereas PW5 is resident of Khairwar Tola and according to evidence of PW5 both the Tolas are situated at a visible distance. PW5 is an eye witness and she has described the occurrence of assault caused. No material contradiction has been taken from mouth of PW5 and therefore, there is no reason to disbelieve or discard testimony of PW5. The description of injury given by PW5 find support from post mortem report Exhibit-2 and evidence of Dr. Angraj Subhas Chand PW6. The learned trial judge has rightly held the appellants guilty and the impugned judgment needs no interference. 5. We have examined the case record and perused the evidence of witnesses examined on behalf of prosecution. The facts emerging are that daughter of PW5 had left her matrimonial home and willfully started living with appellant Ramdayal Lohra as his wife. This conduct of Dewaki was not accepted to her family members and therefore, the informant with the deceased had been to the house of appellants to bring her back. Devnandan, brother of Dewaki, has been killed. Informant did not come forward to support the prosecution case because of his death. This conduct of Dewaki was not accepted to her family members and therefore, the informant with the deceased had been to the house of appellants to bring her back. Devnandan, brother of Dewaki, has been killed. Informant did not come forward to support the prosecution case because of his death. A.S.I. Sri S.K. Singh of Dumri P.S., who had recorded the fardbeyan, has also not been examined to prove the disclosure made by informant in the fardbeyan. Since fardbeyan has formally been proved by PW7, contention made therein could not be read in evidence. PW2 to PW4 are formal witnesses and they have proved their signature appearing on inquest report and seizure list. PW3 and PW4 are the attesting witnesses to the fardbeyan but none of them have deposed as to what statement was given by informant in their presence. These two witnesses PW2 to PW4 have simply proved their signature appearing on the fardbeyan. Therefore, we feel no hesitation to hold that these two attesting witnesses have also failed to prove the fardbeyan though it was recorded in their presence. Sawani Devi PW5 in her examination-in-chief has not stated as to how she was attracted towards the place of occurrence and reached over there. In her cross-examination in para14 she says that her brother Bipata was raising hulla but in low voice, however, she heard the alarm raised by her brother and reached to the place and witnessed the occurrence. This contention of PW5 does not appear to be convincing for the reason that she has admitted that she was present in her house situated within Khairwar Tola whereas the occurrence took place near the house of appellants situated within Lohara Tola. It is not disclosed in the fardbeyan that PW5 reached on hulla raised by informant rather he has stated that in course of assault he had seen his sister Sawani at the place of occurrence. No resident either of Khairwar Tola or of Lohra Tola has supported the occurrence. Time of occurrence is 8.30 a.m. If the version of informant made in fardbeyan is correct that both the Tolas are adjacent to each other, there was no occasion for PW5 to witness the occurrence of assault at 10.00 a.m. The time of occurrence given in the fardbeyan and the time of occurrence deposed by PW5 does not match with each other. It is not a case that the occurrence continued for hours together. The Investigating Officer has not been examined. No independent witness has supported the prosecution case. PW5 who is mother of deceased appears to be highly interested witness. She was aggrieved with the conduct of appellants because they have kept her daughter with them. Considering all these aspects, we do not feel it safe to uphold the conviction of appellants on the solitary testimony of PW5 and we feel inclined to give benefit of doubt to the appellants. Accordingly, the impugned judgment of conviction and sentence dated 22.06.2004 and 23.06.2004 respectively passed by the Addl. Sessions Judge, Fast Track Court-I, Gumla in connection with Sessions Trial No. 35 of 2002 corresponding to G.R. Case No.470 of 1998 arising out of Dumri P.S. Case No. 12 of 1998 stands set aside. In the result, this appeal stands allowed. Appellant Ramdayal Lohra, who is lodged in jail, is directed to be released forthwith, if not wanted in any other case and for that appropriate direction may be issued, if necessary, by the convicting/successor Court. Appellant Ramjeet Lohra after remaining in jail for more than 14 years has been released on the ground that he has served out the sentence and also after having remission from the Government. So far appellants Rupan Lohra and Sukhna Lohra are concerned, they are discharged from the liabilities of their respective bail bonds and set at liberty. Appeal allowed.