SAROJ SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal has been preferred by the appellants against the judgment and order of conviction and sentence passed by Judicial Commissioner, Chotanagpur, Ranchi in S.T. No. 572 of 1995 dated 31.01.2004 whereby these appellants have been convicted for the offence punishable under Section 302 of the I.P.C. to be read with Section 34 of the I.P.C. for life imprisonment and accused, Rambilash Sahu has been further sentences to undergo for rigorous imprisonment for one year for the offence punishable under Section 324 of the I.P.C. Both the sentences against Rambilash Sahu are ordered to be run concurrently.

(2.) IT is a case of the prosecution that on 24.05.1995 at 9 A.M. the informant Dharamdeo Sahu (P.W. -13) gave fardbeyan to police at R.M.C.H. Hospital that he was going from his house to irrigate his field then Rambilash Sahu, Beni Sahu and Saroj Sahu who were holding Bomb and Sword in their hand were standing there. Thereafter Rambilash Sahu assaulted informant, in thigh by knife due to which he get injured and then Beni Sahu. Rambilash Sahu and Saroj Sahu assaulted informant's brother Munna Sahu (deceased) with Bomb and Sword due to which informant's brother fell down and get unconscious. Thereafter when informant family member were taking the informant and his brother Munna Sahu to R.M.C.H. Hospital for treatment then in the way informant brother Munna Sahu died and treatment of informant is going on in Hospital.

(3.) IT is further submitted by learned counsel for the appellants that the so called eye witnesses of the prosecution are in fact not the eye witnesses at all and they have not proved the place of occurrence, the manner of occurrence, the weapon alleged to have been in the hands of the accused in use of the weapons and fact about the explosion of the Bomb. There is inconsistencies in every aspect of the matter between the so called eye witness, if in fact they are the correct eye witness and truthful reliable eye witness there would have been consistency in their deposition which is thoroughly lacking in their depositions. This aspect of the matter has also not been properly appreciated by the learned trial Court. It is further submitted by the counsel for the appellants that the medical evidence given by P.W. -7 is also grossly inconsistent with the depositions given by so called eye witness. It has been stated by the P.W. -7 Dr. Niranjan Minz that the injuries cannot be caused by sword and dagger if this is the evidence of P.W. -7 then the eye witnesses are absolutely false and unreliable and there is no bomb injury whatsoever. Thus, the ocular evidence and the medical evidence are absolutely inconsistent and in contradiction with each other. It is further submitted by the counsels for the appellants that the F.I.R. is ante dated. Looking to the deposition given by P.W. -13, who is the informant and the so called eye witness as per paragraph No. 8, cross examination of the P.W. -13. It is further submitted by the counsels for the appellants that the prosecution has not examined the investigating officer, thus when there is allegation about the ante dated F.I.R. and when there is evidence of ante dated F.I.R. given by the informant the prosecution should have examine the investigating officer. No such investigating officer has ever been examined by the prosecution which is also fatal to the prosecution case. Moreover looking to the evidence given by P.W. -1, 3, 5, 9 and 13 there were several persons at the time of occurrence other than close relatives of the deceased. Not a single independent witness has been examined by the prosecution nor their statements have been recorded by the investigating officer nor they have been cited as prosecution witness in the charge -sheet and the character of so called eye witnesses is narrated by P.W. -13 in paragraph No. 4 of the deposition that they have gone in jail on several occasions. Para. 4 of the depositions of P.W. -13 speaks volume about the characters of the relatives of the deceased and therefore also independent witness ought to have been examined by the prosecution because they were present at the time of occurrence. It is further submitted by the counsels for the appellants that explosion of Bomb has been pointed out by P.W. -13 who is an informant, his deposition is not on the line on which others so called or alleged eye witness has given their depositions in the court nor in the F.I.R., P.W. -13 had stated anything about the explosion of Bomb. The phenomena of explosion of Bomb can not be presumed to have been wiped out by efflux of time. Nobody has stated about the Bomb explosion nor in medical evidence given by P.W. -7 that there were injuries sustained by the deceased because of explosion of bomb, thus the witnesses are got up witnesses. Similarly, looking to paragraph No. 7 of the deposition of P.W. -2 who is the father of the deceased, P.W. -1 -Bimla Devi and P.W. -3 -Sahodra Devi were not present at the place of occurrence. All these depositions make a clear fact that the so called eye witnesses are not the eye witnesses at all because there is gross inconsistency about the narration of the weapons in the hands of the accused as well as there is gross inconsistencies in the depositions about usage of the weapons also. There is equally gross inconsistencies so far as explosion of Bomb is concerned and over and above these enter -say inconsistencies between the so called eye witnesses, there is also inconsistencies between the ocular evidence and medical evidence. It is further submitted by the counsel for the appellants that the prosecution witnesses have materially improved the case in their depositions before the learned trial court. It is further submitted by the counsels for the appellants that looking to the character of P.W. -13, as stated in paragraph Nos. 4 and 6 of his depositions and also looking to the fact that no injury certificate of P.W. -13 has been brought on record by the prosecution. It appears that no injury has ever been sustained by him at the behest of these appellants because this fact has not been proved at all and therefore, conviction of Rambilash Sahu under Section 324 of the I.P.C. also deserves to be quashed and set aside. This aspect of the matter has not been properly appreciated by the learned trial Court, hence the judgment and order of sentence passed by the trial court in Sessions Trial No. 572 of 1995 deserves to be quashed and set aside. It is also submitted by the counsel for the appellants that these appellants are in jail since last more than 13 years and 9 months.