Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 9 (JHR)

Anup Lal Sah v. State of Jharkhand

2018-01-02

ANANT BIJAY SINGH

body2018
JUDGMENT : ANANT BIJAY SINGH, J. 1. The sole appellant had faced the trail in Sessions Case No.06/2004 before the court of 5th Addl. Sessions Judge, Godda who by judgment of conviction and order of sentence dated 28.01.2005 had held him guilty u/s 304 part-11 of the IPC and sentenced him to undergo R.I for 5 years. 2. It appears that this appeal was admitted for hearing on 06.04.2005 and the LCR was called for. 3. It further appears that under order dated 19.05.2006 in I.A. No.849/2006 the appellant was released on bail. 4. The case of the prosecution based upon the fardbeyan of the informant-PW-10, namely, Phakir Sah which was recorded at 19:45 hours at Sadar Hospital, Godda by Sub-Inspector, namely, Suryamani Ram in which he has disclosed that he is a laborer engaged at Kolkata and 8 days ago he arrived at his house where his cousin brother-Anup Lal Sah used to quarrel by saying his mother to be a Witch. He alleged that on 03.07.2003 at about 3-4 PM Anup Lal came there and started quarrel with the informant in presence of Kailu and Sudama who intercepted the quarrel. Thereafter Anup Lal arrived with a wooden log and assaulted the mother of the informant, namely, Jhalo Devi, who received injury. Thereafter Anup Lal fled away and the informant brought his mother to the hospital where she is under treatment. 5. On the basis of the aforesaid fardbeyan of the informant, Poraiya Hatt P.S. Case No. 105 dated 03.07.2003 u/s 447/341/323/304 IPC and 3 /4 of the Prevention of Witch (Daain) Practices Act was lodged against the appellant and subsequently after the death of mother of the informant section 302 IPC was added. 6. The police after investigation has submitted final form and Shri R.K.Pandey 5th Addl. Sessions Judge, FTC-II, Godda took cognizance u/s 304 of the IPC and sections 3 and 4 of the Prevention of Witch (Daain) Practices Act and the trial was proceeded. 7. During the course of trial, altogether 14 witnesses were examined. 6. The police after investigation has submitted final form and Shri R.K.Pandey 5th Addl. Sessions Judge, FTC-II, Godda took cognizance u/s 304 of the IPC and sections 3 and 4 of the Prevention of Witch (Daain) Practices Act and the trial was proceeded. 7. During the course of trial, altogether 14 witnesses were examined. PW-1-Kameshwar Manjhi has been declared hostile, PW-2-Baleshwar Sah is inquest report witness, PW-3-Ramvilas Mahto is also an inquest report witness and has been declared hostile, PW-4-Jaikant Thakur has been declared hostile, PW-5-Jaihind Sah, who is a hearsay witness, PW-6-Sardar Sah is also a hearsay witness and has been declared hostile, PW-7-Shivnarayan Bhagat has been tendered by the prosecution, PW-8-Jitan Sah has been declared hostile by the prosecution, PW-9-Panchi Devi, who is wife-PW-10(Informant), PW-10-Fakir Sah is the informant of this case, PW-11-Dr. Sobhan Murmu is the doctor who had conducted post mortem of the dead body of the deceased, PW-12-Kailu Sah has been declared hostile by the prosecution, PW-13- Shiekh Lukman, who is an advocate clerk and formal FIR witness, the formal FIR exhibited as Ext.4, PW-14-Mohammad Sohaib, who is I.O of this case. 8. From perusal of the records, it appears that Ext.1 is the signature of witness number 2 on the inquest report, Ext.2 is the signature of PW-10(informant) on the fardbeyan, Ext.3 is the post mortem report, Ext.4 is formal FIR, Ext. 5 is the inquest report, Ext.6 is the endorsement of case and Ext.7 is the fardbeyan. 9. Learned counsel appearing for the appellant while arguing the case has referred the evidence of PW-10(Informant) and submitted that although the informant has alleged that the appellant has assaulted his mother by means of lathi due to which she received injury. But in his cross-examination he has admitted that there was enmity between the parties and there was some quarrel occurred before the occurrence and he has also admitted that the appellant had instituted a case against him. In para-2 of his evidence he has stated that after hearing hulla, when he came out of his house he noticed that his mother was lying on the road and blood was oozing. He has alleged that the appellant has assaulted his mother due to which she received injury. 10. In para-2 of his evidence he has stated that after hearing hulla, when he came out of his house he noticed that his mother was lying on the road and blood was oozing. He has alleged that the appellant has assaulted his mother due to which she received injury. 10. Similar is the evidence of PW-9-Panchi Devi, wife of informant (PW-10) who has admitted that she has not seen the occurrence but stated that some quarrel took place before the occurrence with her mother-in-law. 11. It is submitted that two witnesses, namely, Sudama Mandal and Kailu Sah have not been examined by the prosecution although they have been named in the fardbeyan and other witnesses, namely, PW-2-Baleshwar Sah, who is inquest report witness, PW-4-Jaikant Thakur, PW-5-Jaihind Sah, who is an hearsay witness and PW-8-Jitan Sah have been declared hostile. 12. Learned counsel while referring the evidence of PW-11-Dr. Sobhan Murmu who conduced post mortem on the dead body of the deceased-Jhalo Devi on 4.07.2003 and found the following anti mortem injuries:- i. Lacerated would 2”x1/2”x Bone deep over forehead. ii. Diffused swelling over left side of face and skull. On dissection the skull parietal box found fractured and the blood was present in the inter cranial cavity, lungs were pale, heart empty, spleen congested, liver, kidney were found pale. The injury sustained by the deceased was the outcome of hard and blunt substance like wooden log. In cross-examination he has said that such injuries can also be sustained on fall over the brick and stone. 13. Learned counsel for the appellant has submitted that even the evidence of doctor, who conducted post mortem on the dead body of the deceased does not support the prosecution case. 14. On the other hand, learned APP has submitted that the informant (PW-10) has supported the prosecution case and the doctor who conducted post mortem on the dead body of the deceased had found injury on the head of the deceased. 15. It appears from the evidence of PW-14 the I.O of this case that neither any sign of assault has been found at the place of occurrence nor any weapon like wooden log or lathi by which, as alleged, the appellant has assaulted the deceased, has been recovered from the place of occurrence. 16. 15. It appears from the evidence of PW-14 the I.O of this case that neither any sign of assault has been found at the place of occurrence nor any weapon like wooden log or lathi by which, as alleged, the appellant has assaulted the deceased, has been recovered from the place of occurrence. 16. It further appears from the evidence of PW-10(informant) and PW-9(wife of PW-10) that they have supported the prosecution case regarding manner of assault and the evidence of PW-11, the doctor who conducted post mortem on the dead body of the deceased, who opined that injury sustained by the deceased was the outcome of hard and blunt substance like wooden log but in his cross-examination he has stated that such injuries can also be sustained on fall over the brick and stone. 17. In view of the findings recorded by the court below and also considering the evidence of the informant (PW-10), PW-9 (wife of PW-10), PW-11(doctor) and PW-14 the I.O of this case, I am of the view that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubt. In the result, this appeal is allowed and the impugned judgment of conviction and order of sentence is, hereby, set aside. The appellant, who is on bail, is hereby discharged from the liability of his bail bonds. Appeal allowed.