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2019 DIGILAW 1320 (JHR)

Pandey Sahu v. State of Jharkhand

2019-07-22

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : S. Chandrashekhar, J. 1. Mrs. Priya Shrestha, the learned A.P.P. tenders a copy of the affidavit sworn on 15.07.2019. 2. Taken on record. 3. The convicts, namely, Pandey Sahu and Kedar Sahu are the appellants in Criminal Appeal (D.B) No. 396 of 2001 and the convict, namely, Kapil Sahu is the appellant in Criminal Appeal (D.B) No. 408 of 2001. They have challenged the judgment of conviction under section 302/34 I.P.C. and section 201 I.P.C. dated 21.08.2001 and the order of sentence of R.I. for life under section 302/34 I.P.C. and R.I. for five years under section 201 I.P.C. dated 22.08.2001 passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 136 of 1999. 4. The prosecution case is narrated in the fard-beyan of Moini Devi which was recorded on 24.01.1999 and registered as Palkot P.S. Case No. 6 of 1999 at 7 p.m., after the dead body of Laxman Sahu was recovered from a well situated at village-Murumkela. The informant has stated that on 20.01.1999 her husband-Laxman Sahu had gone for work at about 9 a.m., however, when he did not come back she went to the house of Jitni Devi along with her father-in-law. Jitni Devi informed them that Laxman Sahu after finishing the work had gone towards village-Murumkela with Kedar Sahu. Upon such information given by Jitni Devi, her father-in-law visited Kedar Sahu in his house at village-Murumkela to enquire about Laxman Sahu. At that time, Kedar Sahu was not present in his house and his wife informed her father-in-law that since 3 p.m. her husband is absent from the house. They started searching for Laxman Sahu in the neighbourhood, however, he could not be traced out. The informant has stated that when she along with her father-in-law were going towards Beghima in search of her husband, they met Kedar Sahu and his brother-in-law namely, Pandey Sahu. They also did not give any information about Laxman Sahu but they said that last Wednesday in the evening Laxman Sahu had gone with them towards river side. In course of search, they met Kapil Sahu of village-Murumkela, the accused, who informed them that last Wednesday he along with Kedar Sahu and Laxman Sahu had taken drinks together in the house of Khileshwar Sahu and, thereafter, Kapil Sahu had accompanied Kedar Sahu and Laxman Sahu to the out skirt of the village. In course of search, they met Kapil Sahu of village-Murumkela, the accused, who informed them that last Wednesday he along with Kedar Sahu and Laxman Sahu had taken drinks together in the house of Khileshwar Sahu and, thereafter, Kapil Sahu had accompanied Kedar Sahu and Laxman Sahu to the out skirt of the village. It is stated that on suspicion when they searched well of Moti Singh, a resident of village-Murumkela, at about 10 a.m. on 24.01.1999 dead body of Laxman Sahu was recovered. 5. After the investigation, a charge-sheet was submitted against these accused-appellants and they have faced the trial on the charge of causing murder of Laxman Sahu in furtherance of their common intention and for causing disappearance of the dead body of Laxman Sahu. 6. During the trial, the prosecution has examined altogether 12 witnesses; the informant is P.W. 4 and her father-in-law namely, Feku Sahu is P.W. 5. The investigating officer has been examined as P.W. 11. 7. Dr. Krishna Prasad-P.W. 8, who has conducted post-mortem examination over the dead body, has found the following injuries on Laxman Sahu: (i). incised wound over right side of neck below mandible size 3 1/2" x 1/2" x 1" (ii). Incised wound over right lower one third on pinna 2" x 1" x 1/2" (iii). Incised wound over forehead at glabella 1" x 1/2" x 1/2" (iv). Incised wound over right side of forehead 4" x 1/2" x 1" cutting the frontal bone. (v). Incised wound over left side of neck 5" x 1" x 2" cutting the major vessel. (vi). Incised wound over right zygomatic bone 3" x 1/2" x 1/2" (vii). Incised wound over right palm (1st interossem space) 3" x 1/2" x 1/2" 8. The doctor has found the above injuries antemortem in nature, caused by sharp-cutting weapon. The post-mortem examination was conducted on 25.01.1999 at about 9 a.m. and the doctor has opined that the death has been caused approximately between 3 to 5 days. 9. The prosecution has projected Dasrath Sahu-P.W. 2 and Heera Sahu-P.W. 10, relatives of Laxman Sahu, as eye-witnesses. 10. On the basis of the aforesaid evidences, the learned 1st Additional Sessions Judge, Gumla has held that the prosecution has proved the charge under section 302/34 I.P.C. and under section 201 I.P.C. against the accused-appellants. 11. Mr. 9. The prosecution has projected Dasrath Sahu-P.W. 2 and Heera Sahu-P.W. 10, relatives of Laxman Sahu, as eye-witnesses. 10. On the basis of the aforesaid evidences, the learned 1st Additional Sessions Judge, Gumla has held that the prosecution has proved the charge under section 302/34 I.P.C. and under section 201 I.P.C. against the accused-appellants. 11. Mr. Hemant Kumar Shikarwar, the learned counsel for the appellants has contended that; (i) evidence led through P.W. 2 and P.W. 10, eye-witnesses, is not reliable and trustworthy, and (ii) on the basis of the alleged last-seen-together evidence conviction of the appellants under section 302/34 I.P.C. is unsustainable, when the dead body has been found four days after the deceased was lastly seen in the company of the appellants. 12. As against the above, Mrs. Priya Shrestha, the learned A.P.P. submits that conduct of P.W. 2 and P.W. 10 in not informing the police promptly is not such to disbelieve their evidence and when no explanation is coming forth regarding what happened after the appellants were seen lastly together with the deceased, their conviction under section 302/34 I.P.C. and under section 201 I.P.C. is well-founded. 13. Admittedly, a First Information Report was lodged on 24.01.1999 at about 7 p.m., on the basis of fard-beyan of the wife of Laxman Sahu, the deceased. It is the evidence led by the prosecution that on 20.01.1999 after Laxman Sahu went missing, the informant and her father-in-law started searching for him and in course of search Kapil Sahu, the accused, informed them that he along with Kedar Sahu and Laxman Sahu had taken drinks together in the house of Khileshwar Sahu. The said Khileshwar Sahu has been examined as P.W. 3, however, he has not supported the prosecution case. The prosecution witness namely, Jitni Devi-P.W. 6 has deposed that Laxman Sahu left for home at about 4 p.m. Father of the deceased-Laxman Sahu, P.W. 5, has affirmed that when he was coming from Pahan Toli he has seen his son in the company of Kapil Sahu, Kedar Sahu and Pandey Sahu who informed him that they were going for dinner at village-Murumkela. P.W. 2 and P.W. 10 are related to the deceased namely, Laxman Sahu. They have asserted that in the fateful night, that is, on 20.01.1999, they have seen the appellants assaulting Laxman Sahu. P.W. 2 and P.W. 10 are related to the deceased namely, Laxman Sahu. They have asserted that in the fateful night, that is, on 20.01.1999, they have seen the appellants assaulting Laxman Sahu. They claimed that they came to the village and informed the villagers and, thereafter, 60-70 villagers had gone to the place where Laxman Sahu was assaulted by the appellants. No report to the police, however, was given on 20.01.1999 or on 21.01.1999. P.W. 2 and P.W. 10 have spoken about information to the father of the Laxman Sahu and according to these witnesses, father of the deceased namely, Feku Sahu had also accompanied them to the place of occurrence, however, these facts are not disclosed by the informant in her fard-beyan. Both these witnesses - P.W. 2 and P.W. 10 - have admitted in the court that they have not spoken to the police about their witnessing the appellants assaulting the deceased; for the first time they have stated these facts in the court itself. By now it is well-accepted that evidence of a witness tendered for the first time in the court, who has not been examined under section 161 Cr.P.C., cannot be relied upon to record conviction of an accused and, that too, for a serious offence like murder [refer, "Adambai Sulemanbhai Ajmeri & Others Vs. State of Gujrat" reported in (2014) 7 SCC 716 ]. The evidence on last-seen-together cannot be relied upon to convict the appellants for murder of Laxman Sahu; after four days the dead body has been recovered from a well and the prosecution has not proved how Laxman Sahu was done to death. 14. In the light of the aforesaid discussions, we hold that the prosecution has failed to prove the charge under section 302/34 I.P.C. and under section 201 I.P.C. against the appellants. Accordingly, the judgment of conviction of the appellants under section 302/34 I.P.C. and section 201 I.P.C. dated 21.08.2001 and the order of sentence of R.I. for life under section 302/34 I.P.C. and R.I. for five years under section 201 I.P.C. dated 22.08.2001 passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 136 of 1999 are set-aside. 15. In the result, Criminal Appeal (D.B) No. 396 of 2001 and Criminal Appeal (D.B) No. 408 of 2001 are allowed. 16. 15. In the result, Criminal Appeal (D.B) No. 396 of 2001 and Criminal Appeal (D.B) No. 408 of 2001 are allowed. 16. The appellants namely, Pandey Sahu and Kedar Sahu [in Criminal Appeal (D.B) No. 396 of 2001] and the appellant namely, Kapil Sahu [in Criminal Appeal (D.B) No. 408 of 2001] are discharged of liability of the bail-bonds furnished by them. 17. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 18. Let the lower-court records be sent to the court concerned forthwith.