BUDHESWAR GOPE Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal is directed against the judgment of conviction and order of sentence dtd. 9/8/2016 passed by Sri Subhash, the learned Addl. Sessions Judge-V, Jamshedpur, in Session Trial No. 134 of 2014, arising out of Mango P.S. Case No. 557 of 2013, whereby and whereunder, the appellant has been punished to undergo rigorous imprisonment for life for committing the offence punishable under Sec. 302 IPC and further pay a fine of Rs.20,000.00. In default of payment of fine, the appellant is liable to undergo imprisonment for further period of six months.

(2.) The learned counsel for the sole appellant argued that as per the FIR, it is the nephew of the appellant, who rushed to the informant and informed that the appellant was assaulting the deceased, but surprisingly the said nephew was not examined as a witness. He further argued that the best witnesses, who, in fact, are two children of the deceased, who were present at the place of occurrence, were not examined as witnesses and withholding this material witnesses, according to him, is fatal for the prosecution, benefit of which should go the appellant. He also argued that no eye witness has been examined in this case. In fact, all witnesses, who had deposed before the Court admittedly they had not seen the appellant giving any fatal blow on the deceased. As per him, P.W.3 cannot be said to be the eye witness, as he reached the place of occurrence after several people have assembled. He argued that the entire case is based on circumstances and since the chain has not been completed, the conviction of the appellant is bad. He further argued that there is no evidence to suggest that this appellant was in the same room where the deceased was found dead. Since during evidence, it has come that there were other rooms in the said house, it was the duty of the prosecution to establish and prove that the appellant was in the same room. He also argued that the confessional statement of the accused should not have been considered by the Court and the same legally cannot be exhibited. So far as complete chain is concerned, he submitted that the Forensic Science Laboratory (FSL) has not mentioned that the blood stains found in the garments of the appellant and also on the murder weapon of the deceased. The Investigating Officer has stated that he recorded the information of murder in the station diary, but surprisingly the station diary was not exhibited. He lastly argued that the police has not investigated the case properly thus the benefit of the same should be given to the appellant. On the aforesaid ground, he prayed for acquittal of the appellant.

(3.) Learned A.P.P submitted that there are eye witnesses of the occurrence and all the witnesses categorically stated that the appellant was standing with the murder weapon beside the dead body of the deceased and the appellant was apprehended by others. None of the witnesses have stated that the deceased was not present, thus none of the witnesses can be disbelieved. It has been argued that the blood stained weapon was sent to Forensic Science Laboratory for examination along with vests and underwear of the appellant, which were smeared with blood. As per the report, the blood, which was found in the murder weapon and the garments of the deceased has matched and as per the report the blood is of human. When the circumstance was put to the appellant while examining him under Sec. 313 Cr.P.C, he apparently has taken a false plea that he had chopped chicken. Thus, thus these are all the materials against the appellant. She further argued that Sec. 106 of the Evidence Act is attracted in this case. On the aforesaid back ground, she submitted that the appellant's conviction is sustainable.