GOURI NAYAK Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) These criminal appeals have been directed against the judgment of conviction and order of sentenced dated 18.08.2004 and 20.08.2004, respectively, passed by the Learned Additional Judicial Commissioner, Fast Track Court No. III, Ranchi, in connection with Sessions Trial No. 629 of 1993/515 of 1997, corresponding to G.R. Case No. 288 of 1993, arising out of Jagarnathpur P.S. Case No. 11 of 1993, whereby the appellants have been held guilty for the offence punishable under Sections 302/34 of the I.P.C and sentenced to undergo rigorous imprisonment for life. Initially the appellants were charged for the offence punishable under Sections 302/34, 307/34 & 324/34 of the I.P.C. and Sections 3 & 5 of Explosive Substance Act, but they stood acquitted for the offence punishable under Sections 307/34, 324/34 and Sections 3 & 5 of Explosive Substance Act.

(2.) The prosecution case, in brief, is that deceased Laxmi Sahu @ Lichhiya had gone to the house of informant to drop his Son Jainath Sahu on 30.01.1993. On the following morning i.e. on 31.01.1993 at about 8 A.M. Laxmi Sahu proceeded on his Heromajestic moped in order to return home but his friend Jainath also joined to give him company up to the end of village. When the deceased along with Jainath reached near the house of Ganesh Naik, the informant heard sound of explosion. It is disclosed that the informant was also following his son Jainath Naik at that point of time. Due to explosion of bomb, Hero Majestic Moped, on which Laxmi Sahu @ Lichhiya was moving, got damaged and Lichhiya fell down. He wanted to flee away but overpowered by the appellants who inflicted blows by means of Balua and Knife and killed Lichhiya at the spot. Jainath also sustained some injuries but he had succeeded to flee away from the place. On the basis of Fardbeyan given by Dhani Naik, Jagarnathpur P.S. Case No. 11 of 1993 dated 31.01.1993, under Sections 147,148,149,307,324 and 302 of the I.P.C. was registered. The police, after due investigation, submitted charge-sheet against all the three appellants showing Ganesh Naik and Ram Keshwar Naik as absconder in column 2 of the charge-sheet in red ink. Cognizance was taken and the appellants were put on trial after framing of the charge. To substantiate the charge, the prosecution has examined altogether four witnesses including informant. The Additional Judicial Commissioner, placing reliance on the evidences and documents available on record, held the appellants guilty for the offence punishable under Sections 302/34 of the I.P.C., but acquitted them for the offences punishable under Sections 307/34, 324/34 and Sections 3 & 5 of Explosive Substance Act.

(3.) The appellants have assailed the impugned judgment on the ground that no independent witness has come forward to support the prosecution case. The I.O has not been examined to prove the place of occurrence. The place of occurrence described by P.Ws. 1 and 2 is not consistent. The genesis of occurrence and manner of assault, as disclosed by P.Ws. 1 and 2, are also not consistent. According to P.W.1-Dhani Nayak, the deceased had come to drop Jainath Naik (son of the informant) on 30.01.1993 and he had spent night in the house of informant. On the following morning at about 8 A.M. while Laxmi was returning on his Hero Majestic Moped, the occurrence took place near the house of Ganesh Naik. But according to P.W.2-Ratan Devi, the deceased had been to her house on 31.01.1993 for purchasing Chicken and after that he was returning and then the occurrence took place when he reached near the house of Ganesh Naik. Both the witnesses have not described the entire episode and that indicates that they had not seen the occurrence but projected themselves as eye witnesses. The occurrence took place within the village, but no independent witness has come forward to support the prosecution case. Since I.O. has not been examined, incriminating articles available at the place of occurrence were not seized. The description of the place of occurrence could not be brought on record. The statement of P.Ws. 1 and 2 is in consistent on the point of manner of assault. The learned Trial Judge has failed to consider the points raised by the appellants during trial and the findings are not based on sound reasoning. The discussion of the evidences available on record is also incorrect.