BISWAJIT DAS @ RAJA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) These appeals have been preferred by the accused -appellants against the judgment of conviction and order of sentence passed by the 1st Additional Sessions Judge, Jamshedpur, East Singhbhum in Sessions Trial No. 41 or 1998. The order of conviction is dated 2nd December. 2004 whereby these appellants have been punished for the offence punishable under Section 302 of the Indian Penal Code for life imprisonment and under Sections 147 and 148 of the Indian Penal Code for rigorous imprisonment for one year. They were acquitted from the charges under Sections 149 and 341 of the Indian Penal Code. The State has not preferred any acquittal appeal against the order of acquittal passed by the trial Court under Sections 149 and 341 of the Indian Penal Code.

(2.) IT is the case of the prosecution that on 27th January, 1993 at about. 6.30 p.m. when the informant (PW 9) Satish Chandra Prasad and the deceased, namely, Rajesh Prasad and other prosecution witnesses were returning from Sarswati Puja, the accused persons came and assaulted with hockey sticks iron rods and bhujali (a sharp -cutting weapon) as well as by saw and they assaulted the deceased, they dragged him nearby Railway track and the deceased was so seriously beaten that he was taken to hospital by PW 9 and PW 8 where he expired. The First Information Report was registered on the same day. Investigation was carried out statements of several witnesses were recorded, charge - sheet was submitted and the case was committed to the Court of Sessions. Thereafter, on the basis of the evidence on record total eleven accused persons were tried in Sessions Trial No. 41 of 1998, out of which original accused Nos. 1, 4 and 11 were acquitted, whereas the present appellants were convicted mainly for the offence under Section 302 of the Indian Penal Code for life imprisonment and they were also convicted under Sections 147 and 148 of the Indian Penal Code for rigorous imprisonment for one year on each count and all these appellants were acquitted for the offence under Sections 149 and 341 of the Indian Penal Code. All these appeals have been preferred against the said judgment of conviction and order of sentence by the accused - appellants.

(3.) WE have heard the learned counsels appearing for the appellants who have mainly submitted that the learned trial Court has not appreciated the major omissions. contradictions and improvement by the prosecution witnesses in their depositions before the 'learned trial Court. They have also submitted that the. Investigating Officer has not been examined in this case which is fatal in nature because there is more than one place of scene of offence even as per the prosecution witnesses Moreover, not a single prosecution witness has pointed out the individual role played by the appellants -accused causing injury on the body of the deceased. Moreover, it is also vehemently contended by the learned counsels for the appellants that on the same set of evidence on record three accused have been acquitted, namely original accused Nos. 1, 4 and 11. Thus, there is no evidence of any of the prosecution witnesses to show what individual role played by any of the accused causing injury upon the body of the deceased and. Therefore, they have been acquitted from the charges of unlawful assembly under Section 149 of the Indian Penal Code as well as they are acquitted from the charges of wrongful restraints under Section 341 of the Indian Penal Code. Thus, all the appellants -accused could not have been convicted and punished for their individual action of causing murder of the deceased. It is also vehemently contended on behalf of the appellants -accused that the prosecution witnesses, who are narrated as eye -witnesses, are in fact not eye -witnesses at all and they are chance witnesses. There was darkness at the place of scene of the offence and there was no source of light and hence they could not have identified as many as the accused persons. Counsel for the appellants have also contended that once the appellants -accused are acquitted from the charges under Sections 149 and 341 of the Indian Penal Code and in absence of any acquittal appeal preferred by the State, the appellants cannot be punished for an offence punishable under Section 302 to be read with 147 and 148 of the Indian Penal Code by the appellate Court. This aspect of the matter has not been properly appreciated by the trial Court. They have also contended that two views are possible looking to the evidence on record and especially looking to the medical evidence given by PW 7 who is Dr. Akhilesh Kumar Choudhary that cause of death is mainly because of one injury and who caused that injury that is not proved beyond all reasonable doubts from the prosecution witnesses and therefore, the appellants -accused could not have been convicted for an offence under Section 302 of the Indian Penal Code. This aspect of the matter has not been properly appreciated by the trial Court and hence the judgment of conviction passed by the learned trial Court deserves to be quashed and set aside. Counsel for the appellants - accused has taken this part to the - deposition given by PW.7 and has pointed out certain injuries some of which are ante mortem in nature and some are post -mortem. So far ante mortem injury is concerned, it has been stated by PW 7 that some are simple in nature which are categorized as Category -B injuries. So far as Group -A injuries are concerned it is stated by PW 7 that one injury i.e. injury No.3 is a reason for the death of the deceased. In the light of these evidences it is submitted by the learned counsels for the appellants -accused that there are original accused who have been tried in Sessions Trial No. 41 of 1998 with same set of evidences on which three accused have been acquitted. One accused, who was juvenile, was also acquitted by the Juvenile Justice Board and those who are convicted, they are not convicted under Sections 149 and 341 of the Indian Penal Code and there is no cogent and convincing evidence before the learned trial Court nor even in the depositions given by the eye - witnesses stating there as to who caused the fatal injury which is injury No. 3 in Group -A as narrated by Dr. Akhilesh Kumar Choudhary who is PW 7. In this set of circumstances. The -appellants cannot be punished for an offence under Section 302 of the Indian Penal Code. This aspect of the matter has also not been properly appreciated by the learned trial Court and hence the judgment of conviction and order of sentence passed by the trial Court deserve to be quashed and set aside. Counsels for the appellants have also relied upon the decision rendered in 1997(2) All Patna Law Reporter, 406 and 2011(1) Eastern Criminal Cases 86 (SC).