Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 496 (JHR)

Jaimangal Singh v. State of Jharkhand

2019-02-19

H.C.MISHRA

body2019
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 12.06.2007 and Order of sentence dated 14.06.2007, passed by the learned 1st Additional Sessions Judge, Gumla, in S.Tr. No. 211 of 1994, whereby, the sole accused has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life, with fine of Rs.2000/-, for the said offence. 3. It may be stated that in all three accused persons had faced the trial, out of whom, one co-accused Sukhpal Singh @ Sukha Singh had absconded during the trial, whereas the other co-accused Chandru Tirkey has been acquitted by the Trial Court below. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Ram Avtar Sahu, the father of the deceased Vijay Kumar Jaiswal @ Shankar, recorded on 25.04.1994, which was Monday, at about 9.30 P.M., in the night, at Kasir Barpatra Tongri, P.S. Raidih, District Gumla, wherein he has stated that his son had gone out of the house on the last Saturday night for seeing a musical programme. When he did not return in the night, he was searched, but could not be found. He could not be found even on Sunday. On Monday, the informant had gone to village Khursunta in search of his son, as his son was in love with a girl of that village for the last two years. It is stated in the F.I.R that about six months ago, some boys of the said village, including this appellant, had tried to assault his son due to the affair with that girl, but he somehow managed to flee away from the village Khursunta, and thereafter he had stopped going there. When the informant could not get any clue of his son in village Khursunta, he was returning to his village, but in the way he found the dead body of his son in a decomposed condition, with bleeding injuries caused by a sharp cutting weapon. When the informant could not get any clue of his son in village Khursunta, he was returning to his village, but in the way he found the dead body of his son in a decomposed condition, with bleeding injuries caused by a sharp cutting weapon. Claiming, that the deceased had been murdered due to the said affair, the fardbeyan was given by the informant, on the basis of which, Raidih P.S. Case No.32 of 1994, corresponding to G.R. No.278 of 1994, was instituted against unknown, for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. Upon investigation, the police submitted the charge-sheet in the case against the accused persons. 5. Upon commitment of the case to the Court of Session, charge was framed against the appellant and other two co-accused for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, twelve witnesses were examined by the prosecution. 6. Admittedly, the informant is not an eye witness to the occurrence. The case is supported by only one eye witness, who is the same girl with whom it is stated in the F.I.R., that the deceased was in love. This girl has been examined as P.W.-1, and she has supported the prosecution case as an eye witness to the occurrence. She has stated that she was in love with the deceased Shankar and he used to visit her house. The occurrence had taken place more than one year ago, and Shankar had visited her house on a Saturday night at about 09:00 P.M., and asked her to accompany him. She accompanied the deceased and when they reached near the bushes at Jorajam, Jaimangal Singh and Sukhlal Singh came out from the bushes and Jaimangal Singh assaulted the deceased due to which he fell down and thereafter he got up and started fleeing away towards Barpatra forest, when Jaimangal and Sukhram assaulted the deceased by a tangi. She tried to save the deceased, but she was also assaulted by the handle of tangi, and thereafter the accused persons fled away threatening her. She gave water to the deceased, but the deceased died. She tried to save the deceased, but she was also assaulted by the handle of tangi, and thereafter the accused persons fled away threatening her. She gave water to the deceased, but the deceased died. Thereafter, she returned back to her house at about 12:00 A.M., in the night, and informed her mother about the occurrence. On the next day she went to Chainpur where she was studying. She has also stated that six months prior to the occurrence, the accused persons had threatened the deceased due to the affair between them and had also chased him, but they could not assault him. She has stated that her parents were not opposed to her affair with the deceased and her statement was also recorded before the Magistrate, on which she had put her signature. She identified her signature in her statement recorded under Section 164 of the Cr.P.C., which was marked Ext.-1. She has identified the accused in the Court. In her cross-examination, she has stated that near Jorajam there is forest all around, and the place where the dead body was found, was at the distance at about 2 Kms., from Jorajam. She has also admitted that it was a dark night at the time of occurrence, and the things were not visible. 7. P.W.-3 Jagrait Devi is the mother of the deceased and P.W.-4 Ram Avtar Sahu Jaiswal is the father of the deceased, and the informant of the case. Naturally these witnesses are not the eye witnesses to the occurrence and they have not stated about the occurrence, except that they have supported the prosecution case, as stated in the F.I.R. 8. P.W.-5 Parvati Devi @ Parvait is the mother of P.W.-1 and P.W.-6 Anand Singh is the father of P.W.-1, and both these witnesses have turned hostile and have not supported the prosecution case at all. The mother has stated that she had no knowledge about any affair of her daughter, and her daughter had not informed her anything about the murder of the deceased. Similarly, the father has also stated that he had no knowledge about any affair of his daughter, Vijay had never visited his house and he had no knowledge that his daughter had ever accompanied the deceased in the night. He has also stated that he was not informed about the occurrence. 9. Similarly, the father has also stated that he had no knowledge about any affair of his daughter, Vijay had never visited his house and he had no knowledge that his daughter had ever accompanied the deceased in the night. He has also stated that he was not informed about the occurrence. 9. P.W.-2 Krishna Singh and P.W.-9 Jogi Bhagat have also turned hostile and have not supported the prosecution case. P.W.-8 Md. Rabbani was only tendered by the prosecution. P.W.-7 Lakhan Prasad Singh is the witness to the inquest report and a seizure list, and he has proved his signatures thereon. He has stated nothing about the occurrence. 10. P.W.-10 Dr. Krishna Prasad, had conducted the post-mortem examination on the dead body of the deceased on 26.4.1994. He had found (i) one bruise on the occipital region with underlying fracture of the occipital bone with extra dural haematoma, (ii) one incised wound over left thigh and (iii) one penetrating wound over right side of the chest, cutting the lung. He has stated that the first injury was caused by hard and blunt substance, the second injury was caused by sharp cutting weapon, and the third injury was caused by penetrating weapon. The Doctor has stated that death was caused due to shock and hemorrhage of the said injuries. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.2. 11. The Investigating Officer of the case has not been examined, as such, the fardbeyan, formal F.I.R and one seizure list, were proved by the formal witness, P.W.-12 Uaday Kumar Singh, which were marked Exts. 4, 5 and 6 respectively. 12. P.W.-11 Shayam Behari Singh is the Sub-Inspector of Police, who had only submitted the charge-sheet in the case. He had not made any investigation in the case. 13. The statements of the accused were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of evidence on record, out of two accused, who were facing the trial till that date, the appellant was convicted and sentenced by the Trial Court below for the offence under Section 302 of the Indian Penal Code, whereas the co-accused Chandru Tirkey was acquitted by the Trial Court below, as there was no allegation against him in the evidence of the sole eye witness. 14. Learned 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, in view of the fact that the prosecution case rests on the evidence of sole eye witness, i.e., P.W.-1, the girl with whom the deceased was having affairs. However, this witness has stated that after the occurrence, she returned to her house and informed her mother about the occurrence, but her parents, who have been examined as P.W.-5 Parvati Devi@ Parvait and P.W.-6 Anand Singh, have turned hostile and have not supported the prosecution case even to the extent that they were informed about the occurrence by their daughter. Learned counsel has submitted that there is no other eye witness to the occurrence, and all the independent witnesses have turned hostile. Even the I.O. has not been examined in this case, and as such, the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts and in the facts of the case the appellant was entitled at least to the benefits of doubt. 15. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-1, the girl with whom the deceased had affairs and she has clearly stated that it was this accused and other absconding co-accused, who had assaulted the deceased to death by tangi. It is submitted that the ocular evidence of this witness is corroborated by the medical evidence of P.W.-10 Dr. Krishna Prasad, and the post-mortem report proved by him as Ext.-2, which show that there were injuries on the dead body of the deceased which could be caused by tangi, and were sufficient in the ordinary course of nature 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. 16. Having heard learned counsels for both the sides and upon going through the materials on record, we find that the prosecution case is supported only by P.W.-1, the girl, who claims to have love affair with the deceased. 16. Having heard learned counsels for both the sides and upon going through the materials on record, we find that the prosecution case is supported only by P.W.-1, the girl, who claims to have love affair with the deceased. She has stated that she had accompanied the deceased in the night and while they were going together, two accused persons, including this appellant, came and assaulted the deceased by tangi. It is her clear case that the deceased was assaulted by tangi and she has not spoken about any other weapon of offence. However, one injury found by the Doctor P.W.-10 Dr. Krishna Prasad, was the penetrating wound on the chest which punctured the lungs. This penetrating wound could not be caused by a tangi, rather it was caused by some penetrating weapon, as also testified by the Doctor. There is no utterance about this weapon in the evidence of P.W.-1, who claims to have seen the entire occurrence. She has also stated that she was also assaulted by the handle of the tangi by the accused, but there is no proof of any such injury on her person. This witness has stated that after the occurrence, she came back to her house and informed her mother about the occurrence. She has also stated that her parents had no objection to her affair with the deceased, but these facts are not at all supported by the parents of the girl, who were examined as P.Ws.-5 and 6, and they have turned hostile, stating that their daughter had not informed them anything about the occurrence, and they had no knowledge about any such affair of her daughter. Thus, the entire deposition of P.W.-1 is made doubtful by none else then her parents themselves. 17. We also find from the materials on record that the dead body of the deceased was found at Kasir Barpatra Tongri, whereas P.W.-1, the sole eye witness has stated that the deceased was assaulted at Jorajam. She has also testified that the distance between these two places is about 2 Kms. According to her evidence, the deceased was first assaulted at Jorajam, and when he started fleeing away towards Barpatra forest, Jaimangal and Sukhram assaulted the deceased by a tangi. She has also testified that the distance between these two places is about 2 Kms. According to her evidence, the deceased was first assaulted at Jorajam, and when he started fleeing away towards Barpatra forest, Jaimangal and Sukhram assaulted the deceased by a tangi. She has also stated that after assaulting the deceased, the accused persons had fled away, threatening her, and thereafter she gave water to the deceased and thereafter he died. It is not at all explained as to how the dead body was found at a distance of about 2 Kms., as it cannot be perceived that in the night the deceased was chased and assaulted upto the distance of about 2 Kms., in the forest area. Only the I.O. could have explained this discrepancy, and the non-examination of the I.O., appears to have vitally prejudiced the defence on this score. 18. Furthermore, one seizure list has been proved by the formal witness, which has been marked Ext.-6 and this document shows that there was recovery of one tangi on the confessional statement of the accused, but the seizure list witness to that seizure has also turned hostile and not supported any such recovery. This apart, confessional statement of the accused has not been proved in this case. The Trial Court below has placed much reliance on this recovery, stating that this recovery was on the disclosure made by the accused, and is admissible under Section 27 of the Evidence Act. We are of the considered view that the Trial Court below has completely misdirected itself on this score, as no confessional statement has been proved in the case, and in absence of the evidence of the I.O., it could not be presumed that the said recovery was made on the basis of the disclosure made by the accused. As there was no disclosure made by the accused on record, there is no question of application of Section 27 of the Evidence Act in the case. We are of the considered view that non-examination of the I.O. in the case, has vitally prejudiced the defence on this score as well. 19. As there was no disclosure made by the accused on record, there is no question of application of Section 27 of the Evidence Act in the case. We are of the considered view that non-examination of the I.O. in the case, has vitally prejudiced the defence on this score as well. 19. On the basis of the materials on record, we are of the considered view that even though the prosecution case is supported by P.W.-1, the girl, who claims to have love affair with the deceased, and has supported the case as eyewitness to the occurrence, but since her evidence is made doubtful by none else then her parents themselves, and there are even other strings of doubt in her evidence, the benefits thereof must go to the accused, and in the facts of the case, the appellant was entitled at least 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. 20. For the foregoing reasons, the impugned Judgment of conviction dated 12.06.2007 and Order of sentence dated 14.06.2007, passed by the learned 1st Additional Sessions Judge, Gumla, in S.Tr. No.211 of 1994, convicting and sentencing the appellant Jaimangal Singh, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Jaimangal Singh is given the benefits of doubt, and he is acquitted of the charge. The accused 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. 21. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.