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2018 DIGILAW 949 (JHR)

Baleshwar Yadav v. State of Jharkhand

2018-04-30

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : As both these appeals arise out of the same impugned Judgment, they are heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State in both the appeals. 3. The appellants are aggrieved by the Judgment of conviction dated 22nd April, 2008 and Order of sentence dated 24th April, 2008, passed by the learned Additional Sessions Judge, Fast Track Court-II, Chatra, in Sessions Trial No. 47 of 2007, whereby, the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo imprisonment for life with fine of Rs.3000/- each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Sumitra Devi, the wife of the deceased Ritu Yadav, recorded on 14.10.2006 at about 6.00 hours at her house, wherein, she has stated that in the previous night, i.e., in the night of 13.10.2006, her husband had returned after pasturing cattle at about 12:00-01:00 A.M., and thereafter, he was going to ease himself, for which he had gone on the hand pump for taking water. As soon as her husband reached the hand pump, the accused persons, namely, Doman Yadav, and his sons Baleshwar Yadav, Lakhan Yadav, Jhaman Yadav and Chhotan Yadav, apprehended her husband, inserted a towel in his mouth and they started forcibly taking away her husband, whereupon the informant raised the alarm and she along with her relatives followed the accused persons. The accused persons brought her husband to the land of one Ramdas Bhuiyan, where they assaulted her husband by farsaand axe causing his death at the spot. In the meantime, other persons also assembled there, whereupon the accused persons fled away. She brought the dead body of her husband to her house. She has stated that there was land dispute between Doman Yadav and her husband, due to which the accused persons had threatened to kill her husband. On the basis of the fardbeyan of the informant, Itkhori P.S. Case No.119 of 2006, corresponding to G.R. No. 666 of 2006, was instituted for the offences under Sections 147, 148, 149 and 302 / 34 of the Indian Penal Code, against the aforesaid accused persons, and investigation was taken up. On the basis of the fardbeyan of the informant, Itkhori P.S. Case No.119 of 2006, corresponding to G.R. No. 666 of 2006, was instituted for the offences under Sections 147, 148, 149 and 302 / 34 of the Indian Penal Code, against the aforesaid accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against the accused appellants for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, seven witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 6. Out of the material witnesses examined by the prosecution, the most important witness P.W.-4 Sumitra Devi, the informant of the case and the wife of the deceased, has turned hostile and has not supported the prosecution case. The other witness P.W.-5 Rinku Kumari, the daughter of the deceased, was also only tendered by the prosecution. 7. Though P.W.-1 Manoj Kumar, the son of the deceased, who was aged about 15 years, has supported the prosecution case as an eyewitness to the occurrence, stating that he had seen that the accused Baleshwar Yadav had inserted cloth in the mouth of his father near the hand pump, and thereafter all the named accused persons took his father towards the agriculture field, where they assaulted his father by sharp cutting weapons on his neck, causing his death at the spot, but from the evidence of the I.O., P.W.-6 Niranjan Oraon, it is apparent that he had made material improvements upon his earlier version given before the police. As such, we looked into the case diary and we find that this witness had given the statement to the police that he was sleeping in his house and upon the alarm raised by his father, his mother had rushed towards the hand pump, and he was informed by his mother. 8. P.W.-2 Bishambhar Rana and P.W.-3 Abdul Jamil are the witnesses who had reached the place of occurrence upon hearing the noise and they had seen the dead body. 8. P.W.-2 Bishambhar Rana and P.W.-3 Abdul Jamil are the witnesses who had reached the place of occurrence upon hearing the noise and they had seen the dead body. They have stated that the wife of the deceased was crying and she informed that the accused persons had committed the murder. P.W.-2 Bishambhar Rana has also stated in his cross-examination that the accused persons and deceased were cousins and there was land dispute between them. 9. P.W.-7 Dr. Nand Kishore Prasad Jaiswal had conducted the post-mortem examination on the dead body of the deceased on 14.10.2006 and had found three ante-mortem incised injuries on the head of the deceased, which were sufficient to cause the death. He has proved the post-mortem report to be in his pen and signature which was marked Ext.3. 10. P.W.-6 Niranjan Oraon is the I.O. of the case, who has proved the fardbeyan, which was marked Ext.1, had prepared the inquest-report of the dead body and sent the dead body for post-mortem examination. He has given the details of the place of occurrence, which was a hand pump in front of the house of the deceased and he had also visited the agriculture field where the deceased was assaulted to death, where he had found the blood. He has stated that he received the post-mortem report and after completing the investigation he submitted the charge-sheet in the case. His cross-examination about the statement of the witness Manoj Kumar shows that the said witness had stated before him that his mother had followed the accused persons. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. On the basis of the evidence on record, the Trial Court below has found the appellants guilty, and convicted and sentenced them for the offence, as aforesaid. 12. Learned counsel 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, as the main witness, i.e., P.W.-4 Sumitra Devi, the informant of the case and the wife of the deceased had turned hostile and has not supported the prosecution case at all. Even the daughter of the deceased was only tendered by the prosecution. Even the daughter of the deceased was only tendered by the prosecution. Learned counsel submitted that though the son of the deceased, P.W.-1 Manoj Kumar, claimed to be the eye-witness to the occurrence, but his evidence is absolutely doubtful and cannot be relied upon. Learned counsel accordingly, submitted that in the facts of this case, the appellants were entitled to the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer submitting that P.W.-1 Manoj Kumar, the son of the deceased, is the eye-witness to the occurrence and he has fully supported the prosecution case stating that he had seen the accused persons committing the murder of his father. He was put to extensive cross-examination but he has stood the test of cross-examination, even though he is a child witness, aged about 15 years. The other two witnesses, P.W.-2 Bishambhar Rana and P.W.-3 Abdul Jamil, have also supported the case as hearsay witnesses and they had seen the dead body of the deceased. Their ocular evidence is fully corroborated by the medical evidence of P.W.-7 Dr. Nand Kishore Prasad Jaiswal, which shows that there were three incised wounds on the head of deceased, sufficient to cause the death. 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 record, we find that P.W.-1 Manoj Kumar, is a child witness aged about 15 years, and has fully supported the case as eye-witness to the occurrence. Being a child witness and also being an interested witness, as he is the son of the deceased, his evidence is required to be looked into with care and caution. His evidence is not corroborated by the other eye witnesses, not even by his mother and the wife of the deceased, P.W.-4 Sumitra Devi, who has turned hostile and not supported the prosecution case at all. His sister P.W.-5 Rinku Kumari was only tendered by the prosecution. His evidence is not corroborated by the other eye witnesses, not even by his mother and the wife of the deceased, P.W.-4 Sumitra Devi, who has turned hostile and not supported the prosecution case at all. His sister P.W.-5 Rinku Kumari was only tendered by the prosecution. In view of the evidence of the I.O., we have also looked into the case diary and we find that this witness had stated before the police that he was sleeping in his house and upon the alarm raised by his father, his mother had rushed towards the hand pump, and he was informed by his mother. This clearly shows that P.W.-1 Manoj Kumar has made improvements over his earlier version made before the police and has tried to become the eye-witness to the occurrence, though he was not an eye-witness. As such, the very testimony of P.W.-1 Manoj Kumar becomes very doubtful, and in view of the admitted enmity between the parties, the false implication of the accused persons cannot be ruled out. P.W.-2 Bishambhar Rana and P.W.-3 Abdul Jamil are not the eye-witnesses to the occurrence, rather they were informed about the occurrence by the wife of the deceased, i.e., P.W.-4 Sumitra Devi, who has turned hostile and she has not supported the prosecution case at all. In that view of the matter, we are of the considered view, that in the facts of the case, the appellants were entitled at least to the benefits of doubt, and 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 22nd April, 2008 and Order of sentence dated 24th April, 2008, passed by the learned Additional Sessions Judge, Fast Track Court-II, Chatra, in Sessions Trial No. 47 of 2007, convicting and sentencing the appellants, for the offence under Sections 302/34 of the Indian Penal Code, are hereby, set aside. The appellants Baleshwar Yadav, Lakhan Yadav and Jhaman Yadav are given the benefits of doubt and they are acquitted of the charges. Appellant Baleshwar Yadav is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. The appellants Baleshwar Yadav, Lakhan Yadav and Jhaman Yadav are given the benefits of doubt and they are acquitted of the charges. Appellant Baleshwar Yadav is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. The appellants Lakhan Yadav and Jhaman Yadav are on bail, and they are discharged from the liabilities of their respective bail bonds. 16. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.