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2018 DIGILAW 2775 (JHR)

Rajendra Bind v. State of Jharkhand

2018-12-17

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned senior counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 13.02.2006 and Order of sentence dated 16.02.2006, passed by the learned 1st Additional Sessions Judge, Garhwa, in S.T. No. 379 of 1995, whereby, the appellant along with co-accused Sikeshwar Bind, has been found guilty and convicted for the offences under Sections 302/34, 323 and 341 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life, with a fine of Rs. 2000/-, for the offence under sections 302/34 of the Indian Penal Code. No separate sentence was passed for the offences under Sections 323 and 341 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the FIR lodged by the informant Paras Prasad, son of the deceased Baijnath Bind, on 27.03.1991 at about 9:00 A.M., at Nagar Untari Police Station, in the District of Garhwa, wherein, he has stated that on the previous day, i.e., on 26.03.1991, in the evening at about 7:00 P.M., when his father was returning back from the brick kiln, the accused persons, namely, Sikeshwar Bind, Nagina Bind, Rajendra Bind (the appellant) and Indradeo Bind surrounded him and started assaulting him. Rajendra Bind was armed with Tangi and others were armed with Lathi, and they started assaulting his father, upon which, Lilawati Devi, the wife of the informant, raised the alarm and the informant also went to save to his father, when he was also assaulted by Sikeshwar Bind by Lathi causing injuries to him. His father was lying injured, and he asked for water, and soon after taking water, he died at the spot. About the cause of occurrence, it is stated that both the sides were working in the brick kiln and about three years ago, his sister’s daughter was married to Rajendra Bind, whom he had left about two years ago. Thereafter she was married to another person, due to which, the accused persons had committed the offence. On the basis of the information given by the informant, Nagar Untari P.S. Case No. 45 of 1991, corresponding to G.R. No.215 of 1991, was instituted for the offences under Sections 341, 323, 302/34 of the Indian Penal Code, against the named accused persons and investigation was taken up. On the basis of the information given by the informant, Nagar Untari P.S. Case No. 45 of 1991, corresponding to G.R. No.215 of 1991, was instituted for the offences under Sections 341, 323, 302/34 of the Indian Penal Code, against the named accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. It may be stated at this place that the impugned Judgment shows that the co-accused Nagina Bind died on 21.04.1998 and hence, the proceeding against him was dropped. Other accused Indradeo Bind was found to be a juvenile and his trial was also separated. As such, two accused persons, namely, Sikeshwar Bind and Rajendra Bind faced the trial, who were convicted and sentenced by the Trial Court below. During the pendency of this appeal, the appellant No.1 Sikeshwar Bind died, and accordingly, his name was deleted from the array of the appellants, vide order dated 29.08.2018. As such, there is only one appellant Rajendra Bind, before us, and accordingly, we shall confine our discussions in the Judgment, only as regards this appellant, so far as practicable. 5. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 341, 323, 302/34 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 6. In course of trial, prosecution has examined thirteen witnesses in this case, including the Doctor, who conducted the post-mortem examination on the dead body of the deceased. Two witnesses, viz., Bishwanath Ram and Ram Chandra Jaiswal are numbered as P.W-3 inadvertently, but both of them are not very important witnesses, as Ram Chandra Jaiswal has turned hostile, and Bishwanath Ram is only a formal witness, who has only proved the FIR, which has been marked Ext.-1, as the main I.O. of the case has not been examined by the prosecution. P.W.-1 Md. Mustaque is a part I.O. only, who had only submitted the charge-sheet in the case. He had not done any investigation in the case. 7. Out of the other material witnesses examined, P.W.-8 Vijay Singh, P.W.-9 Meera Devi, P.W.-10 Krishna Bind and P.W.-11 Paras Prasad @ Bind, who is the informant of the case, have turned hostile and have not supported the prosecution case at all. He had not done any investigation in the case. 7. Out of the other material witnesses examined, P.W.-8 Vijay Singh, P.W.-9 Meera Devi, P.W.-10 Krishna Bind and P.W.-11 Paras Prasad @ Bind, who is the informant of the case, have turned hostile and have not supported the prosecution case at all. Since the informant has also turned hostile in the case, we have to examine the evidence of other witnesses very carefully. 8. P.W.-2 Lilawati Devi is wife of the informant and the daughter-in-law of the deceased, and P.W.-4 Lav Bind is the son of the deceased. Both these witnesses have supported the prosecution case as eye-witnesses to the occurrence. Though they have named the appellant also, but in their evidence they have made only omnibus allegation against the four accused persons, without making any specific allegation against the appellant. P.W.-2 Lilawati Devi, who is the wife of the informant, has stated that her husband was also assaulted by the accused persons, but again there is omnibus allegation against all of them. None of these two eyewitnesses have stated anything about the motive behind the occurrence, even though the motive was specifically alleged in the FIR. 9. P.W-5 Ram Nath Bind is the brother of the deceased, and P.W.-6 Bikram Bind is the nephew of the deceased, and both these witnesses are only hearsay witnesses. They have stated that they had only heard about the occurrence. P.W.-7 Mundrika Ram had only brought the dead body to the hospital, and he has stated nothing about the occurrence. 10. P.W.-12 Dr. Ranjan Kumar Pandey, had conducted the post-mortem examination on the dead body of the deceased on 27.03.1991, and had found ten ante-mortem injuries caused by hard and blunt substance, on the dead body of the deceased. He has stated that the death was caused due to shock and hemorrhage due to injury in the brain. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.-2. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C. wherein he has denied the evidence. No evidence was adduced by the defence. 12. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.-2. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C. wherein he has denied the evidence. No evidence was adduced by the defence. 12. Learned senior counsel appearing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, even the informant, who is the own son of the deceased, has not supported the prosecution case at all, and has turned hostile. The other witnesses supporting the prosecution case as eyewitnesses are only P.W.-2 Lilawati Devi and P.W.-4 Lav Bind, but they have made only general statements in their evidence, making only omnibus allegation against all the four accused persons. It is submitted by learned senior counsel that even the motive behind the occurrence, though alleged in the FIR, has not been supported by any witness examined by the prosecution, and even the I.O. has not been examined in the case. Learned senior counsel, accordingly, submitted that the prosecution has failed to prove the charge against the appellant beyond all reasonable doubts and it is a fit case in which the accused ought to have been given at least the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that two witnesses, who are the family members of the deceased, have fully supported the prosecution case as eyewitnesses to the occurrence, and their ocular evidence is fully corroborated by the medical evidence of P.W.-12 Dr. Ranjan Kumar Pandey, and the post-mortem report proved by him as Ext.-2. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that though two witnesses, namely, P.W.-2 Lilawati Devi and P.W.-4 Lav Bind have supported the prosecution case as eyewitnesses to the occurrence, but there is nothing specific against this appellant in their evidence. In the FIR, there is specific motive alleged for the offence, but these witnesses are absolutely silent about the same. In the FIR, there is specific motive alleged for the offence, but these witnesses are absolutely silent about the same. The informant of the case, who was none else than the son of the deceased, has turned hostile and has not supported the prosecution case at all. Even the other independent witnesses examined by the prosecution have turned hostile and have not supported the prosecution case at all. The prosecution case is supported as eyewitnesses to the occurrence, only by highly interested witnesses, i.e., the son and the daughter-in-law of the deceased, and by none else, including the informant, who is also the son of the deceased. As such, it would not be safe to base the conviction of the accused only on the uncorroborated evidence of highly interested witnesses. In the facts of the case, we are of the considered view, that the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts, and it is a fit case in which, the accused ought to have been given the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgment of conviction dated 13.02.2006 and the Order of sentence dated 16.02.2006, passed by the learned 1st Additional Sessions Judge, Garhwa, in S.T. No. 379 of 1995, convicting and sentencing the appellant, Rajendra Bind, for the offences under Sections 302/34, 323 and 341 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Rajendra Bind is given the benefits of doubt and he is acquitted of the charges. The appellant Rajendra Bind is in custody, undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 16. This appeal is accordingly allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.