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2018 DIGILAW 2727 (JHR)

Dhrit Sahu @ Dhiraj Sahu v. State of Jharkhand

2018-12-12

KAILASH PRASAD DEO

body2018
JUDGMENT : KAILASH PRASAD DEO, J. 1. The instant Criminal Appeal has been preferred against the judgment of conviction dated 18.11.2003 and order of sentence, dated 19.11.2003, passed by learned Additional Sessions Judge, Fast Track Court No. I, Gumla in Sessions Trial No. 190 of 2003, whereby the sole appellant has been found guilty for the offence committed and punishable under Section 304 Part II of the Indian Penal Code and awarded rigorous imprisonment for seven years with fine of Rs. 2000/- of which Rs. 1500/- shall be payable to Mahendra Sao and Chhedni Devi (grand parents of the deceased Babulal) and in default of payment of fine, further to undergo simple imprisonment for six months. By the same impugned judgment, the learned trial court has acquitted the co-accused Krishna Sahu and Sumitra Devi of the charges. However, neither the State nor the informant has preferred any acquittal appeal against their acquittal. 2. The prosecution case is based upon the fardbeyan of the informant Ghunsi Sao (PW-6), before the Sub-Inspector of Police Dibakar Choudhary of Bariatu Police Station in the district of Ranchi on 04.03.2003 at 10.00 Hrs. at Rajendra Institute of Medical Sciences (RIMS), Ranchi, in the ward of Dr. C.B. Singh, Room No. 1276, where the informant has alleged that his son Babulal Sao, aged about 10 years was working in the hotel of Dhrit Sahu at Gumla because of poverty on monthly salary of Rs. 600/- but the salary was not given to his son by giving allurement by Dhrit Sahu, that he is depositing the amount in the bank and if he will pay the amount, his father will spend the same. It is alleged that on 19.02.2003, when father of the informant went to the hotel and demanded the salary then, Dhrit Sahu said that since food is provided to the boy, so no salary will be paid to him and thereafter some altercation took place. It is alleged that on 19.02.2003 at around 8.00 P.M. the son of the informant was assaulted, on allegation of taking Rs. 30/- by Dhrit @ Dhiraj Sahu and his wife, by means of iron pipe used for blowing hearth, on head and thereafter his son was brought by Krishna Sahu, who has disclosed that Dhrit @ Dhiraj Sahu has assaulted him and thrown him. From where the injured was taken to hospital for treatment before Dr. 30/- by Dhrit @ Dhiraj Sahu and his wife, by means of iron pipe used for blowing hearth, on head and thereafter his son was brought by Krishna Sahu, who has disclosed that Dhrit @ Dhiraj Sahu has assaulted him and thrown him. From where the injured was taken to hospital for treatment before Dr. Bengali and after first aid (bandage), the injured was brought to his house. The victim was unconscious at that time because of that he was brought to RIMS, Ranchi on 04.03.2003 at 20.00 Hrs. in a Maruti car for better treatment as he was referred from Basia Hospital. The informant has also alleged that he has informed the police officer but instead of instituting a case, the Officer-in-Charge said that first give him medical aid to protect his life. The informant has alleged that his son has died on 04.03.2003 at 00.20 Hrs. in the night during treatment. 3. On the basis of the fardbeyan of the informant Ghunsi Sao (father of the victim) PW-6, police has registered Basia P.S. Case No. 10 of 2003 dated 08.03.2003, under Section 302 of the Indian Penal Code against three accused persons namely Dhrit Sahu @ Dhiraj Sahu, Krishna Sahu and Sumitra Devi. 4. After investigation, the police has submitted charge sheet against all the three named accused persons vide charge-sheet no. 40 of 2003, dated 03.06.2003, under Section 302/34 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 16.06.2003 and the case has been committed to the Court of Sessions vide order dated 11.07.2003. 6. The charge has been framed against all the three accused persons under Section 302/34 of the Indian Penal Code vide order dated 01.09.2003, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether fifteen witnesses and also exhibited a number of documentary evidences up to Exhibit-8. Jagnnath Sahu has been examined as PW-1, Sakhichand Sahu, has been examined as PW-2, Shiv Kumari Devi, has been examined as PW-3, Dr. 7. The prosecution, to prove its case, has examined altogether fifteen witnesses and also exhibited a number of documentary evidences up to Exhibit-8. Jagnnath Sahu has been examined as PW-1, Sakhichand Sahu, has been examined as PW-2, Shiv Kumari Devi, has been examined as PW-3, Dr. Shambhu Sharan, has been examined as PW-4, Mahendra Sao, grand father of the deceased and father of the informant, has been examined as PW-5, Ghunsi Sao, informant and father of the deceased, has been examined as PW-6, Chhedni Devi, grand mother of the deceased, has been examined as PW-7, Subal Kumar Baidya, has been examined as PW-8, Tarkeshwar Prasad Sahu, has been examined as PW-9, Rajo Sao, has been examined as PW-10, Shivraj Sahu, has been examined as PW-11, Bholanath Singh has been examined as PW-12, Jaleshwar Yadav, has been examined as PW-13, Vijay Sahu @ Chamra Sahu has been examined as PW-14 and Asha Barman, Investigating Officer of the case, has been examined as PW-15. 8. Post-mortem report of the deceased Babulal Sao, has been proved and marked as Exhibit-1, signature of the informant, Ghunsi Sao on the fardbeyan, recorded by Bariyatu Police, has been proved and marked as Exhibit-2, signature of Ghunsi Sao on the inquest report has been proved and marked as Exhibit-3 and by recalling the informant for cross- examination on 19.09.2003, fardbeyan has been proved and marked as Exhibit-4 with objection, forwarding of fardbeyan has been proved and marked as Exhibit-5, the carbon copy of the inquest report of Babulal Sao has been proved and marked as Exhibit-6 with objection, the confessional statement of accused Dhrit Sahu in police custody has been proved and marked as Exhibit-7, seizure list with signatures of two independent witnesses has been proved and marked as Exhibit-8. All exhibits from- 4 to 8 have been proved by Asha Barman (PW-15) Sub-Inspector of Police and Investigating Officer of the case. 9. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C. on 15.10.2003, to which the accused persons have pleaded that they are innocent and have been falsely implicated in this case. No defence witness or Exhibit has been brought on record by the defence. 10. 9. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C. on 15.10.2003, to which the accused persons have pleaded that they are innocent and have been falsely implicated in this case. No defence witness or Exhibit has been brought on record by the defence. 10. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence convicting the appellant under Section 304 Part II of the Indian Penal Code and acquitted other co-accused persons from all the charge. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal, assailing the same. 11. Heard, learned counsel for the appellant Mr. Pankaj Verma assisted by Mr. N.K. Sahani, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted that there is delay of approximately 15 days in recording the fardbeyan of the informant Ghunsi Sao (PW-6). Learned counsel for the appellant has further submitted that any injured, if brought to a Government Hospital or before any medical practitioner having such injury then initially it is being mentioned in the prescription of treatment of the injured or informed to local police station immediately by the concerned authority. Learned counsel for the appellant has further submitted that the present case has been instituted against Dhrit Sahu, who is alleged to be the owner of a line hotel just to falsely implicate him. As per the fardbeyan of the informant, the occurrence has alleged to take place on 19.02.2003 but the fardbeyan was recorded after death of the victim Babulal Sahu in RIMS, Ranchi on 08.03.2003 which was communicated to the Basiya Police Station and on the basis of the same Basiya P.S. Case No. 10 of 2003 has been instituted by the police. Learned counsel for the appellant has further submitted that although 15 prosecution witnesses have been examined in this case but none of the witnesses are claiming that they are eye-witness to the occurrence. Learned counsel for the appellant has further submitted that although 15 prosecution witnesses have been examined in this case but none of the witnesses are claiming that they are eye-witness to the occurrence. Learned counsel for the appellant has further submitted that the evidence of the prosecution witnesses have failed to prove that Babulal Sao was working in the hotel of Dhrit Sahu rather contradictory evidence has been brought on record. Learned counsel for the appellant has further submitted that Babulal Sao is son of Ghunsi Sao from his first wife, who left matrimonial relation and went to Delhi, subsequently, Ghunsi Sao solemnized second marriage with Shiv Kumari Devi (PW-3) and as such, Babulal Sao was an uncared child, who was residing with his grandfather and grandmother namely Mahendra Sahu (PW-6) and Chhedni Devi (PW-7) respectively and just to earn something from the dead body of his son, a false case has been instituted by the father of the deceased-cum-informant against the appellant. Learned counsel for the appellant has further submitted that some of the witnesses have not supported the prosecution case, though they have not been declared hostile by the prosecution. Learned counsel for the appellant has further submitted that the local doctor (quack), PW-8 Subal Kumar Baidya has provided initial medical treatment to the victim, has also stated that he was not informed by the parents of the victim that Babulal has sustained injury because of assault made by the appellant or any other person rather in his cross-examination, this witness has stated that Mahendra Sahu (PW-5) has disclosed before him that his grandson has sustained injury because of fall. Learned counsel for the appellant has further drawn attention of this Court towards paragraph-3 of his cross- examination, where this witness has categorically stated that Babulal was found in fallen condition in front of a mandir, sustaining injury and as such, he has bandaged the wound and asked them to take the injured to the hospital, at that time except Mahendra Sao (PW-5) and his wife Chhedni Devi (PW-7), none was present at that place. Learned counsel for the appellant has further submitted that the medical officer Dr. Shambhu Sharan has been examined as PW-4 and has proved the post-mortem report of Babulal Sao, which has been proved and marked as Exhibit-1. Learned counsel for the appellant has further submitted that the medical officer Dr. Shambhu Sharan has been examined as PW-4 and has proved the post-mortem report of Babulal Sao, which has been proved and marked as Exhibit-1. As per the evidence of PW-4 and Exhibit-1, it is apparent that Babulal Sao (deceased) has sustained “contusion of right temporalis muscle and contusion of right side of brain and subdural hematoma over right side of brain” but PW-4 has stated during his cross-examination at paragraph-8 that this injury may be caused due to fall on rocky road. Learned counsel for the appellant has also drawn attention of this Court towards paragraph-9 of his cross-examination, where the medical officer (PW-4) has categorically stated that no other injury was found except the injury as mentioned above, by him in the report. Learned counsel for the appellant has further submitted that Investigating Officer Asha Barman (PW-15) has seized the wooden stick though as per the fardbeyan of the informant, it is alleged that Babulal Sao was assaulted by means of iron pipe used for blewing the hearth. Learned counsel for the appellant has further submitted that no blood stained iron pipe has been seized from the house of the appellant nor the wooden stick seized was sent for Forensic Examination to corroborate that the same has been used for assaulting Babulal Sao. Learned counsel for the appellant has further submitted that accused persons were arrested by the Officer-in-Charge and this witness has not even recorded the statement of the accused persons. Learned counsel for the appellant has submitted that Investigating Officer has admitted in paragraph-16 of her cross-examination that confessional statement of Dhrit Sahu was recorded by her but she has not informed the court nor she has filed an application regarding recording of the confessional statement of the accused before the Court. Learned counsel for the appellant has thus submitted that it is a case of no evidence against the appellant and the learned trial court has wrongly convicted the appellant and thus, committed an error by convicting the appellant under Section 304 Part II of the Indian Penal Code, as such the appellant deserved to be acquitted by extending benefit of doubt. 12. Heard, learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor. 12. Heard, learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record. Learned counsel for the State has submitted that fifteen witnesses have been examined in this case though there is no eye-witness to the occurrence but the victim boy has died because of injury caused upon his head, which has been proved by the Medical Officer (PW-4) Dr. Shambhu Sharan and the post-mortem report has been proved and marked as Exhibit-1. Learned counsel for the State has thus, submitted that a child of 10 years has been killed by this appellant, in whose hotel the child was working as a staff and his salary was not paid as such, learned trial court has rightly convicted the appellant and the same does not warrant any interference by this Hon'ble Court. 13. Heard, learned counsel for the appellant Mr. Pankaj Verma assisted by Mr. N.K. Sahani, Advocates and learned counsel for the State, Mr. Suraj Mohan, Additional Public Prosecutor and perused the evidence brought on record including the F.I.R., framing of charge, evidence of fifteen prosecution witnesses, eight prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. From perusal of the materials available on record, it appears that alleged date of occurrence is of 19.02.2003 but the fardbeyan was recorded on 04.03.2003 at RIMS, Ranchi by the Bariatu police, which was communicated to the Basia Police Station, Gumla, on the basis of the same present F.I.R. has been lodged. Prior to that no information was given by the informant or his father to any person nor even to the village chowkidar or local police station. It appears that only after death of Babulal Sao, F.I.R. has been lodged alleging that Babulal Sao was working as a servant (staff) in the hotel of appellant. The prosecution has miserably failed to prove that Babulal Sao has ever worked in the hotel of the appellant Dhrit Sahu nor anything has been brought on record to substantiate the same by the prosecution. The prosecution has miserably failed to prove that Babulal Sao has ever worked in the hotel of the appellant Dhrit Sahu nor anything has been brought on record to substantiate the same by the prosecution. Even from the evidence of the prosecution witnesses no coherent evidence has been brought on record consistent to the prosecution case, though prosecution witnesses have not been declared hostile by the prosecution. Even the local doctor (quack), who has been examined as PW-8 Subal Kumar Baidya, has initially given medical aid to the injured, has not been disclosed by the father or by the grandfather of the deceased or any person of the village, that Babulal Sao got injured because of assault made by the appellant, as such, the prosecution has miserably failed to prove its case against the appellant. 14. In the result, the impugned judgment of conviction dated 18.11.2003 and order of sentence, dated 19.11.2003, passed by learned Additional Sessions Judge, Fast Track Court No. I, Gumla, in Sessions Trial No. 190 of 2003, arising out of Basia P.S. Case No. 10 of 2003, corresponding to G.R. No. 141 of 2003, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 304 Part II of the Indian Penal Code, as awarded by the learned trial court by extending benefit of doubt. 15. The appellant, who is on bail, is discharged from liability of his bail bond. 16. Accordingly, the present criminal appeal is allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal allowed.