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2016 DIGILAW 793 (JHR)

Manoj Kumar Goswami v. State of Jharkhand

2016-05-06

ANANT BIJAY SINGH

body2016
ORDER : This appeal has been preferred by the appellant, namely, Manoj Kumar Goswami, who stood convicted under Sections 307 of the Indian Penal Code and was ordered to go rigorous imprisonment for three years vide judgment dated 27.11.2002 passed in S. T. Case No. 67/250/95 by Sri R.K. Srivastava, learned Additional Sessions Judge, F.T.C.3rd, Bokaro. 2. The case of the prosecution, as has been recorded in the fardbeyan of one Sandeep Kumar Pandey (P.W.4) by A.S.I, B.B. Tiwari of Sector IV Police station on 30.09.1993 at 10.00 Hrs. at B.H.G. Emergency Ward, Bed No.5 alleging that on 30.09.1993 the informant along with his friend have gone to Gaytri Mandir, Balidih to play cricket. At about 3:30 P.M. heavy rain occurred thereafter, they went to nearby liquor Bhathi and were sitting on the cot. In the meanwhile, Manoj Kumar Goswami (appellant) came and sat on that particular cot which was resisted by the informant, thereupon some hot exchange of words took place. Manoj Kumar Goswami started to abuse and went to his house. After sometime rain stopped, the informant along with his friend namely, Vijay Goswami, Lalan Singh, Satyendra Singh, Ranjeet Pandey and Vinod Goswami proceeded to the house and reached nearby Gaytri Mandir. The appellant, Manoj Kumar Goswami who was carrying acid came near him and threw on the body of the informant, consequent thereupon the informant got some burn injury on the left hand and back side on his kanpatti and thereafter he fell on the ground. 3. On the basis of these allegations, Balidih P.S. Case No. 66 of 1993 dated 02.10.1993 was instituted under Sections 326/307 of the Indian Penal Code. It appears that the charges in this case was framed on 21.07.1998 under Section 307 and 326 of the Indian Penal Code against the appellant thereafter, trial proceeded and during course of trial, the prosecution has examined altogether eight witnesses namely, P.W.1 Akil Prasad Mahatha, who is the formal witness who has proved the fardbeyan, P.W.2 Ranjeet Kumar Pandey, associate of the informant, P.W.3 Satyendra Kumar Singh, son of associate of the informant, P.W.4 Sandeep Kumar Pandey, informant himself, P.W.5, Bijay Goswami, who was declared hostile, P.W.6 Vinod Goswami, who was also declared hostile, P.W.7 Dr. Abhay Kumar Rohtagi, who issued injury report of the informant, P.W.8 Arun Chandra Sen, who has proved formal F.I.R lodged by the Investigating Officer. Abhay Kumar Rohtagi, who issued injury report of the informant, P.W.8 Arun Chandra Sen, who has proved formal F.I.R lodged by the Investigating Officer. The Investigating Officer has not been examined. Learned trial Court on the basis of the evidences held the appellant guilty. 4. During course of argument, learned counsel for the appellant submitted that admittedly the Investigating Officer has not been examined so the place of occurrence and the manner of occurrence have not been proved by the prosecution hence, no case under Section 307 of the I.P.C is made out against the appellant. Accordingly, the prosecution has failed to prove the case beyond all reasonable doubt. 5. Learned counsel for the appellant referred the evidence of P.W.7 Dr. Abhay Kumar Rohtagi who has stated in para 16 that in order to examine injury on the person of injured only he had used magnifying glass. He has not measured depth and sharpness of injury. He has further stated in para 23 that he has not mentioned any document that he has examined the injury and in para 25 he has stated that acid is of different type but he has no knowledge about it. So it was submitted that there was no expert to examine in order to establish injury received by the injured caused by acid and neither the bottle of the acid was seized nor it was produced in the Court. Dr. P.W.7 in Para 29 has stated that he has mentioned that the injury was caused by corrosive substance, and not by acid, so it was submitted that due to non-examination of I.O., the prosecution has also not brought anything on record to establish the injury caused to the informant by acid. The evidence of P.W.7 who is not supporting the fact that injury was due to acid hence, the prosecution has failed to prove the case beyond all reasonable doubt against the accused appellant. 6. The evidence of P.W.7 who is not supporting the fact that injury was due to acid hence, the prosecution has failed to prove the case beyond all reasonable doubt against the accused appellant. 6. Learned counsel for the appellant relying on the judgment of Hon'ble Supreme Court in the case of “Lahu Kamlakar Patil and Another Versus State of Maharashtra reported in 2013 (6) SCC 417 : E. “Criminal Trial Examination Non-examination/Failure to examine witness Non-examination of investigating officer (IO) If fatal When such examination of IO essential-Determination of Reiterated, non-examination of IO is not fatal to prosecution case, especially, when no prejudice is likely to be suffered by accused However, reiterated, there are certain circumstances where examination of IO becomes vital In instant case of murder, informant admitted his signature on FIR but also stated that it was taken on a blank paper while he was drunk Same could have been clarified by IO, but for some reason IO was not examined by prosecution Neither trial court nor High Court delved into issue of non-examination of IO-On a perusal of entire material brought on record, it is clear that no explanation was offered for above statement of informant Further, panch witness had turned hostile and some of the evidence adduced in court did not find place in statement recorded under S. 161 Cr.P.C Hence, held, present case is one where examination of IO was vital and his non-examination creates a material lacuna in case of prosecution Conviction reversed, on this and other grounds Criminal Procedure Code, 1973Ss. 154 and 161 Penal Code, 1860, Ss. 302, 147, 148, 149 and 452” submitted that the learned trial Court has not considered the fact that non-examination of I.O caused serious prejudice. 7. Admittedly, non-examination of I.O has caused serious prejudice to the informant as the prosecution has failed to prove the manner of occurrence and place of occurrence and only ocular evidence are not corroborated by evidence of I.O neither any expert was examined to establish the injury caused to the injured through acid. Further bottle of the acid like any other material seized, was not produced before the Court. Doctor has also stated that he is not expert to examine acid and he cannot say how much there are acid and further has opined that injury is grievous in nature and corrosive in nature. Further bottle of the acid like any other material seized, was not produced before the Court. Doctor has also stated that he is not expert to examine acid and he cannot say how much there are acid and further has opined that injury is grievous in nature and corrosive in nature. So taking all these facts and circumstances and considering the case of the prosecution, I am of the considered opinion that the prosecution has failed to prove the case beyond all reasonable doubt. 8. Accordingly, judgment and order dated 27.11.2002 passed by the Sri R.K. Srivastava, learned Additional Sessions Judge, F.T.C.3rd, Bokaro in S.T. No. 67 of 250/95 is hereby set aside and the instant appeal stands allowed. The appellant is discharged of his bail bond. Let a copy of the judgment be sent to the trial Court.