Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 369 (JHR)

Rakesh Mishra v. State of Jharkhand

2023-03-21

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 19.09.2003 and order of sentence dated 20.09.2003 passed by learned Additional District & Session Judge, FTC No.1, Gumla corresponding to G.R.No.75/02, S.T. No.73/2003 in connection with Basia P.S. Case No.8/2002, whereby the appellants were convicted for the offence under Section 307/452/34 IPC and were sentenced to undergo R.I. for a period of Five years for the offence under Section 307/34 IPC and R.I. for Five years under Section 452 IPC and both the sentences were directed to run concurrently. 3. The brief fact of the case is that on 9.2.2002 informant was sleeping with his family after taking dinner. At about 11.30 p.m. he heard sound of knocking of the door. He came to the door then two persons were calling him by name. His family members also awake and indentified both the persons by their voice as Krishna pandey and Rakesh Mishra. As they did not open the door both the accused removed the earthen wall from the upper portion of the door and by inserting their hand they opened the door and came in the courtyard. They all raised hulla then both the accused started fleeing. As soon as the informant came outside the door both accused have assaulted him with farsa and lathi on his head, waist and other parts of the body and they fled away and cause of the occurrence was old enmity. 4. Mr. Mohit Prakash, learned counsel for the appellant made following submissions:- (i) The conviction has been rendered only on surmises and conjecture since it was a dark night and there is no deposition with regard to any light as such this is a case of voice identification and in such case it is very difficult to identify any person. (ii) Though there was two seizure list witnesses P.W. 4 has not supported the case of the prosecution and stated that no seizure has been made in his presence and P.W. 5 has been declared hostile. (ii) Though there was two seizure list witnesses P.W. 4 has not supported the case of the prosecution and stated that no seizure has been made in his presence and P.W. 5 has been declared hostile. Though initially the case was also lodged under explosive act but no charge was framed under the said act which in itself suggest that from the very beginning it was malicious intention at the instance of brother-in-law of the informant who was a contractor and due to his business rivalry he made a false submission. (iii) Since P.W.3, who is doctor, has categorically stated that the nature of injury was simple in nature and the cause of injury was due to fall on hard object thus it cannot be said that there was any attack by Farsa. He lastly submits that the defence version that it is a malicious prosecution has not been addressed by the learned trial court. 5. Learned APP has supported the judgment and submits that there is no error or perversity in the impugned judgment as the learned trial court after dealing with the evidences found the appellants guilty and thus convicted them for the offences under Sections 307/452/34 IPC. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that though the appellants have also been convicted under Section 34 of the IPC but there is no deposition to the effect that they were having a common intention and there was any premeditation of mind. It further transpires that when the expert evidence P.W.3, who is Doctor, has given categorically finding that the injury on the one hand was simple in nature and on the other hand the injury is caused due to falls on hard substance so there cannot be any circumstances by which it can be inferred that the arms (Farsa) has been used. Moreover, one of the seizure list witness P.W.4 categorically stated that the article has not seized in front of him whereas P.W.5 seizure list witness has been declared hostile. This all goes to show that the defence version is quite appreciable. Moreover, one of the seizure list witness P.W.4 categorically stated that the article has not seized in front of him whereas P.W.5 seizure list witness has been declared hostile. This all goes to show that the defence version is quite appreciable. Even otherwise, for the purpose of conviction under Section 307, there has to be categorical intention or knowledge however as stated herein above no deposition is there to the effect that there is premeditation of mind to act in furtherance of any intention. So far as section 452 IPC is concerned it was a dark night and there was no source of any light and further there is no deposition as to face identification of the appellants by any of the prosecution witnesses and the appellants as alleged were identified by their voices as such it is very difficult to rely on such deposition. These lacunas have not been taken care by the learned trial court making the order perverse. It is a settled principal of criminal jurisprudence that the charges in a criminal trial has to be proved beyond all shadow of reasonable doubts which is missing in the instant case, as such the impugned judgment requires interference. 7. Consequently, the judgment of conviction dated 19.09.2003 and order of sentence dated 20.09.2003 passed by learned Additional District & Session Judge, FTC No.1, Gumla corresponding to G.R.No.75/02, S.T. No.73/2003 in connection with Basia P.S. Case No.8/2002 is hereby, quashed and set aside. 8. The appellants are discharged from the liability of their bail bonds. 9. Accordingly, the instant criminal appeal, is hereby, allowed. Pending I.A., if any, is also closed. 10. Let a copy of this order be communicated to the court below and the lower court record be sent to the court concerned forthwith.