Cr. Appeal (DB) No.1014 of 2007 -1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.1014 of 2007 (Against the Judgment of conviction dated 7th July 2007 and Order of sentence dated 11.07.2007, passed by the Additional Sessions Judge, F.T.C. No.1, Gumla, in S.T. Nos.24 of 2005 / 137 of 2005) Jagdish Yadav .... Appellant Versus The State of Jharkhand ..... Respondent PRESENT HON'BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE RATNAKER BHENGRA .....
For the Appellant : None For the respondent-State : Mr. Ram Prakash Singh, A.P.P.
By Court.:- No one appears for the appellant in spite of repeated calls, in spite of the fact that the case of this appellant was entrusted to one amicus curiae. As such, we have gone through the records, with the assistance of the learned counsel for the State.
2. At the outset, it may be stated that there were four appellants in this case, out of whom, appellants Nos. 1, 2 and 3, i.e., Puna Yadav, Kameshwar Yadav and Santosh Yadav were on bail, and the present appellant Jagdish Yadav is in custody. As no one was appearing for the appellants, on the previous dates also, the bails of the appellants Nos. 1, 2 and 3 were cancelled and bailable warrants were issued against them. The execution report of the bailable warrants shows that appellant Nos. 1, 2 and 3 have left their villages and their whereabouts were not known, and even their houses had also fallen down. In that view of the matter, this appeal, so far as appellants Nos. 1, 2 and 3, i.e., Puna Yadav, Kameshwar Yadav and Santosh Yadav, was dismissed by order dated 12.10.2018, issuing permanent non-bailable warrants against them, and indicating that upon execution of permanent non-bailable warrants, they may file application for restoration of their appeal, which may be considered favorably, if any such application is filed.
3. Thus, this appeal now continues against the present appellant Jagdish Yadav only, and we are confining our discussions in this Judgment only with respect to the present appellant.
4. The appellant is aggrieved by the impugned Judgment of conviction dated 7th July 2007 and order of sentence dated 11.7.2007, passed by the learned Cr. Appeal (DB) No.1014 of 2007 Additional Sessions Judge, F.T.C. No.1, Gumla, in S.T. Nos. 24 of 2005 / 137 of 2005, whereby, so far as this appellant is concerned, he has been convicted for the offence under Sections 302 / 34 of the Indian Penal Code, and sentenced to R.I. for life.
5. The prosecution case was instituted on the basis of the fardbeyan of the informant Parwati Devi, the wife of the deceased Dhyani Yadav, recorded on 12.08.2004 at about 2.00 P.M., near the land of one Paskal Topo, situated in village Kado Jharia, P.S. Dumri, District Gumla, in which the informant has stated that after her marriage, she stayed in her parents’ house itself with her husband, and she was also cultivating the land of her parents, which was being objected by her brother Puna Yadav and his son Santosh Yadav, and they did not want the informant and her husband to live in the village and they used to threaten them. On 6.8.2004, her husband had gone to a relative’s place, but he did not return back till 10.08.2004. On 10.08.2004, at about 8.00 A.M., the informant went to market along with her daughter and when they were returning from market at about 6.00 P.M., they were informed by her sister Aashapati Devi, that the dead body of her husband was lying near the field of Paskal Topo. Whereupon, they went there and saw the dead body of her husband with injuries on the head, with the brain matter protruding out. She remained with the dead body throughout the night. On 11.08.2004, the Chaukidar was sent for informing the police, and the police arrived at the place of occurrence, on 12.08.2004, when her fardbeyan was recorded, in which, she claimed that her husband had been killed by her brother Puna Yadav and his son Santosh Yadav, along with other unknown persons. On the basis of fardbeyan of the informant, Dumri P.S. Case No.24 of 2004, corresponding to G.R. No.507 of 2004, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, and investigation was taken up. It appears from the record that initially the charge-sheet was not submitted against this appellant, but it was submitted against the other co-accused persons, but subsequently, the charge-sheet was also submitted against him.
6. Though, the charge was framed against the other co-accused persons on 8th February 2005, but as against this appellant, the charge was framed on 15th July 2005, for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, this accused was also put to trial.
7. In course of trial, 11 witnesses were examined by the prosecution, but so far as this appellant is concerned, his conviction is based only on the Cr. Appeal (DB) No.1014 of 2007 evidence of P.W.-4 Lius Thethian and P.W.-5 Nikolus Beng, who have claimed to be the eyewitnesses to the occurrence. In the FIR there is no allegation against this appellant. The informant Parwati Devi, who has been examined as P.W.-2 in the case, has stated nothing against this appellant, except that she later learnt that Lius Thethian and Nikolus Beng had seen the occurrence. P.W.-6 Savitri Kumari is the daughter of the informant and she has also stated that she was informed by Lius Thethian and Nikolus Beng that they had seen the occurrence. The other witnesses examined by the prosecution have stated absolutely nothing against this appellant.
8. So far as the eyewitnesses are concerned, P.W.-4 Lius Thethian and P.W.-5 Nikolus Beng, both have claimed to have seen the occurrence, in which, they had allegedly seen this appellant assaulting the deceased with the other co-accused persons. However, P.W.-4 Lius Thethian has stated that the accused Jagdish Yadav was armed with knife, whereas P.W.-5 Nikolus Beng has stated that this accused was armed with lathi. P.W.-4 Lius Thethian has also admitted in his cross-examination that he had not given any information to the police, and though the police had arrived at the place of occurrence in his presence, but he had not stated anything to the police on that day.
9. The evidence of the I.O., P.W.-8 Santosh Kumar Gupta, shows that he had recorded the statements of both these eyewitnesses on 3.01.2005, i.e., more than four months after the alleged occurrence. Their statements were also recorded under Section 164 of the Cr.P,C., before the Magistrate on 3.1.2005 itself.
10. There is one more lacuna in the case, that the Doctor conducting the post-mortem examination on the dead body of the deceased was examined as P.W.-1 on 24.2.2005, i.e., prior to the date of framing of charge against this accused, and he had not been recalled.
11. In the facts of this case, we are of the considered view that the evidences of eyewitnesses, so far as the allegation against this appellant is concerned, are quite contrary, and they appeared before the police, with their story, after four months of the occurrence. Even the evidence of one of them show that the police had arrived at the place of occurrence in his presence, but he had not given any statement before the police. As such, their evidences against this appellant cannot be relied upon. In the facts of this case, we find that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, so far as this appellant Jagdish Yadav is concerned, cannot be sustained in the eyes of law.
Cr. Appeal (DB) No.1014 of 2007
12. For the foregoing reasons, the impugned Judgment of conviction dated 7th July 2007 and Order of sentence dated 11.07.2007, passed by the learned Additional Sessions Judge, F.T.C. No.1, Gumla, in S.T. Nos. 24 of 2005 / 137 of 2005, so far as they relate to the conviction and sentence, of the appellant Jagdish Yadav, are hereby, set-aside. Consequently, the appellant Jagdish Yadav is found not guilty, and he is acquitted of the charge. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case.
13. We also find from the record P.W.-2 Parwati Devi, the wife of the deceased, and P.W.-6 Savitri Kumari, the daughter of the deceased, are the victims of the crime, who should be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps with the concerned District Legal Services Authority in the matter, so that these victims of the crime in this case, may be given due compensation at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful.
14. This appeal, so far as it relates to the appellant Jagdish Yadav, is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgment.
15. We make it clear that we have not applied our judicial minds with respect to the other absconding accused persons, against whom other materials are available on record, which shall be considered on their own merits, when they appear, or are apprehended in execution of the permanent non-bailable warrants issued against them, and file application for restoration of their appeal, or file fresh appeal.
(H.C. Mishra, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated, the 12th of December, 2018.