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2018 DIGILAW 1563 (JHR)

Pawan Kumar Rai v. State of Jharkhand

2018-07-14

ANANT BIJAY SINGH, KAILASH PRASAD DEO

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JUDGMENT : Anant Bijay Singh, J. Three accused persons were convicted in Sessions Trial No. 242/2008, but the present appeal has been preferred by the appellant, namely, Pawan Kumar Rai only and the remaining two convicts have not preferred any appeal. 2. The sole appellant, Pawan Kumar Rai has preferred this appeal in terms of Sections 374(2) read with 389(1) of the Cr.P.C. and vide order dated 26.04.2010, the appeal was admitted and LCR was called for which has been received and is kept on record. 3. The sole appellant, Pawan Kumar Rai along with two accused persons, namely, Virendra Kumar Jha and Nagendra Kumar Jha had faced the trial in Sessions Trial No. 242/2008 before Court of learned Ist Additional Sessions Judge, Bokaro, who by judgment of conviction dated 21.04.2009 and the order of sentence dated 21.04.2009 held them guilty under Section 302/34 of the IPC and sentenced them to undergo R.I. for life for the offence under Section 302/34 of the IPC, whereas acquitted them from the charges under Sections 306 and 328 of the IPC. 4. The prosecution case in brief based on the written report given by P.W.8, informant, namely, Nunu Lal Jha is that on 12.06.2008 at 4.00 a.m. his sons namely, Virendra Kumar Jha and Nagendra Kumar Jha along with their friend Pawan Kumar Rai administered poison to his wife Vimla Devi (deceased) due to which his wife became unconscious and therefore, she was brought to Bokaro General Hospital for treatment, where in course of treatment, she died. It is further alleged that motive behind the occurrence was that the informant's sons had demanded money from his wife and when she had refused, they administered poison to her. When the informant raised hulla, his neighbours came there and with the help of neighbours, his wife was brought to Bokaro General Hospital for treatment where she died. 5. On the basis of written report, Herla P.S. Case No. 62/08 was registered for the offence under Section 302/34 of the IPC against three accused persons including the appellant. After completion of investigation, final form was submitted for the offence under Section 306 of the IPC and accordingly, cognizance the offence was taken and thereafter, the case was committed to the Court of Sessions Judge and the learned Sessions Judge transferred the case to the learned Ist Additional Sessions Judge, Bokaro for trial and disposal. After completion of investigation, final form was submitted for the offence under Section 306 of the IPC and accordingly, cognizance the offence was taken and thereafter, the case was committed to the Court of Sessions Judge and the learned Sessions Judge transferred the case to the learned Ist Additional Sessions Judge, Bokaro for trial and disposal. Thereupon, vide order dated 15.12.2008, charges were framed under Sections 302, 306 and 328/34 of the IPC against the appellant and Virendra Kumar Jha and Nagendra Kumar Jha. 6. During course of trial, altogether 09 witnesses were examined by the prosecution, out of them, P.W.1, Digambar Jha, a witness of inquest report, P.W.-2, Nawal Kishor Bhagat, P.W.-3, Shankar Choudhary, P.W.-4, Bachha Babu Chaudhary, P.W-5 Murati Yadav and P.W.-7, Gautam Singh have been declared hostile by the prosecution as they have not supported the prosecution case. P.W.-6, Amrendra Kumar Jha is one of the sons of the informant, who is not an eye-witness to the occurrence, rather he is a hearsay witness. P.W.-8, informant, Nunu Lal Jha have supported the case and P.W.-9, Dayawant Sharma is the I.O. of the case. 7. On the other hand, defence witness namely, Vinod Prasad, who is a neighbour, stated that the informant is of unsound mind and he used to quarrel with his wife and he had never heard or seen any of the sons of the informant to put forth demand of any money from his mother or assaulting his mother for the same. 8. Prosecution has also brought on record the following documents which have been marked as follows :- Exbt.-1, signature of P.W.-1 on the death inquest report. Exbt.-2, signature of P.W.-3 on the written report of the informant. Exbt.-3 written report of the informant. Exbt.-4, carbon copy of the death inquest report. Exbt.-5 signature of the informant on the written report. Exbt.-6 endorsement made with signature by Officer-in-Charge of Herla P.S. on the written report of the informant. Exbt.-7 formal F.I.R. Exbt.-8 is the post-mortem examination report, which has been marked under Section 294, Cr.P.C. 9. Learned counsel for the appellant in course of arguments submitted that the evidence of P.W.-8, informant, recorded in the examination-in-chief is a considerably improved version from the fardbeyan. Exbt.-7 formal F.I.R. Exbt.-8 is the post-mortem examination report, which has been marked under Section 294, Cr.P.C. 9. Learned counsel for the appellant in course of arguments submitted that the evidence of P.W.-8, informant, recorded in the examination-in-chief is a considerably improved version from the fardbeyan. While giving written report, he has only mentioned that on 12.06.2008 at 4.00 a.m., his sons namely, Virendra Kumar Jha and Nagendra Kumar Jha along with their friend Pawan Kumar Rai administered poison to his wife Vimla Devi (deceased) due to which his wife became unconscious and thereafter, she was brought to Bokaro General Hospital for treatment, where in course of treatment, she died. But in his evidence recorded in the examination-in-chief, he categorically improved his version and said that in the night of 12.06.2008 at about 3.30 a.m., while he was on his bed in his residence, accused persons having common intention came near to him and firstly, they assaulted him and put leg on his chest and his wife was sitting near to him, who opposed, whereupon accused the appellant pushed her from wooden cot, accused Nagendra Kumar Jha and Virendra Kumar Jha caught hold her hand and started pulling her due to which she fell down and thereafter, appellant put his leg on the neck of his wife. Nagendra Kumar Jha administered poison i.e. Salfas Tablet in her mouth and accused Vinod Kumar Jha put water in her mouth and when informant raised alarm, they fled away. At 8.00 a.m., his younger son Amrendra Kumar Jha came there with his tempo and took the deceased to hospital for treatment where she died. The informant further deposed that his son Amrendra Kumar Jha resides separately from his brothers. Learned counsel for the appellant further submitted that P.W.-9 is the I.O. of the case who submitted charge-sheet under Section 306 of the IPC and the learned trial Court has passed the judgment of conviction under Section 302 of the IPC in a mechanical manner. In cross-examination, the I.O. has stated that he had sent the viscera for FSL, but he did not receive the report. So, cause of death regarding administration of poison to the deceased has not been established. In cross-examination, the I.O. has stated that he had sent the viscera for FSL, but he did not receive the report. So, cause of death regarding administration of poison to the deceased has not been established. It is further submitted that the Court below has failed to take into consideration that earlier FIR was lodged under Sections 306 and 328 of the IPC, but accused have been acquitted from the charges under Sections 306 and 328 of the IPC. He further submitted that the Court below has totally ignored the deposition of the defence witness namely, Vinod Prasad, who is a neighbour and who has deposed that the informant is of unsound mind and he used to quarrel with his wife. He further submitted that all the independent witnesses have been declared hostile by the prosecution. So, this is a fit case for acquittal of the appellant from all the charges. 10. After hearing the counsel for the parties and carefully examination of the evidences, both ocular and documentary, it transpires that admittedly P.W.1 to P.W.-5 and P.W.-7 have been declared hostile and P.W.-6, son of the informant, is a hearsay witness and only P.W.-8, informant has supported the prosecution case. P.W.-9, Dayawant Sharma, is the I.O. of the case who has submitted final form under Section 306 of the IPC. He has stated in his cross-examination that he had sent the viscera for FSL, but he did not receive the report. So, allegation of administering poison to the deceased has not been established. Further, the charges were framed under Sections 302, 306 and 328/34 of the IPC vide order dated 15.12.2008, but all the accused were acquitted from the charges under Sections 306 and 328 of the IPC. Further, evidence of P.W.-8, informant, as recorded in the examination-in-chief is a categorically improved version of the fardbeyan. The evidence of P.W.-8 is contradictory to his statement recorded in the fardbeyan and there is inconsistency in his evidence, which creates a doubt over the prosecution case. 11. In view of the discussions made above, we are of the considered view that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts and the appellant is entitled to be given the benefit of doubt. 12. 11. In view of the discussions made above, we are of the considered view that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts and the appellant is entitled to be given the benefit of doubt. 12. In the result, the judgment of conviction dated 21.04.2009 and order of sentence dated 24.04.2009 passed by Ist Additional Sessions Judge, Bokaro in S.T. No. 242 of 2008 is hereby set aside. The appellant is acquitted from the charges under Section 302/34 of the IPC. Accordingly, this criminal appeal is hereby allowed. 13. We direct that the appellant be released forthwith, if not required to be detained in any other case. 14. Let the LCR be sent back to the Court concerned forthwith. Appeal allowed.