RAM BACHAN TIWARY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment of conviction dtd. 13/7/2018 and order of sentence dtd. 19/7/2018 passed by learned District and Additional Sessions Judge-II, Giridih in Sessions Trial No.63 of 2012, whereby, the appellant has been convicted under Sec. 302/34 of the Indian Penal Code and sentenced for imprisonment for life and fine of Rs.30,000.00.

(2.) Learned senior counsel appearing on behalf of the appellant submitted that in the instant case, the charge was framed under Ss. 304/34 and 302/34 of the Indian Penal Code alternatively, but from the evidence adduced, the appellant has only been convicted under Sec. 302 /34 IPC, but surprisingly, in separate trial, other co-convicts have been acquitted, thus this appellant deserves the same treatment. He also contended that the fardbeyan cannot be treated to be a dying declaration as there is no certification by Doctor, nor there any endorsement to that effect that the deceased was in a fit state of mind to give the aforesaid statement. Only on the basis of evidence of P.Ws 1 and 2, who were the child witnesses at the time of occurrence as they were aged about 06 years and 04 years, this appellant has been convicted. He also contended that P.W. 3 (Yudhisthir Tiwary) had not seen the occurrence. Neither the I.O. who had investigated this case, nor the scribe, who had recorded the fardbeyan, has been examined, which caused great prejudice to this appellant. He further contended that as there was land dispute between this appellant and the husband of the deceased (P.W.3), this appellant has falsely been implicated in this case.

(3.) Counsel appearing on behalf of the State submitted that P.Ws. 1 and 2 are the eye witnesses, who had narrated the entire incident as to how the appellant had committed the crime and their statements corroborate from the fardbeyan, which is of the deceased. He further submitted that when there is corroboration of facts by the eye witnesses, the appellant has been rightly convicted. The allegation against this appellant is specific that he had burnt the deceased to death. He lastly submitted that on this ground, the prosecution prays for dismissal of this appeal.