Angrej Rai vs The State Of Jharkhand
2022 Latest Caselaw 4775 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Criminal Appeal (S.J.) No.195 of 2012
[Against the judgment of conviction and order of sentence dated 21.12.2011
passed by the learned District & Sessions Judge-1, Dumka in Sessions Trial
No.209 of 2009.]

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Angrej Rai                                        ....      ....    Appellant
                                   Versus
The State of Jharkhand                            ....      ....    Respondent
                             ----
                           PRESENT
              HON'BLE MR. JUSTICE RAJESH KUMAR
                             ----
For the Appellant                 : Mr. Yogesh Modi, Adv.
For the State                     : Mr. Bishambhar Shastri, A.P.P.
                             ----
By Court:

1. Heard the learned counsel for the appellant and the learned APP.

2. The present appeal has been filed against the judgment of conviction and order of sentence dated 21.12.2011 passed by the learned District & Sessions Judge-1, Dumka in Sessions Trial No.209 of 2009.

3. As per the prosecution story as disclosed in Jama P.S. Case No.52 of 2009 that on 17.04.2009 at about 06:00 P.M. the present appellant had assaulted Sundari Devi while she was searching her goat and when the deceased namely Dayachand Rai came to rescue her, he had also been assaulted by the appellant with bamboo stick (farrati). Both persons had sustained injuries and Dayachand Rai had succumbed to the injuries. The injury was on the head of the deceased measured 1c.m.×1/2c.m.×bone deep in perital region of the scalp.

4. The police after investigation had filed charge-sheet and the Trial Court had framed the charge under Section 302 of the Indian Penal Code to which the appellant had pleaded not guilty and claimed to be tried.

5. To substantiate the prosecution story, altogether seven witnesses had been examined.

P.W.-1(Baldev Rai) who had claimed to the eye witness but he had reached at the place of occurrence after the assault had taken place.

P.W.-2 (Madhu Rai), P.W.-3 (Kartim Rai) and P.W.-5 (Heeramani Devi) all had deposed the similar fact.

P.W.-4 (Bali Rai) who is the informant had also stated that on hearing "hulla" he reached at the place of occurrence and apprehended the present appellant who was present on the spot.

P.W.-6 (Dr. Binod Kumar Sinha) had examined the deceased and proved the post-mortem report and the injury report.

P.W.-7 (Bishnu Tirky) is the Investigating Officer.

6. The tone and tenure of the evidence is that the appellant was arrested at the place of occurrence where two persons had sustained injuries and one of them had succumbed to the injuries. Although the injury was simple in nature and accordingly the court below had convicted the appellant under Section 304 part-II of the IPC.

7. It has been submitted by the learned counsel for the appellant that there is no eye witness to the incident. The appellant had been seen and apprehended at the place of occurrence but the weapon of assault had not been recovered. The injuries are also simple in nature which can be caused by fall also. Another injured witness has not been examined which is fatal to the prosecution story.

8. On the other hand, learned counsel for the State has supported the allegation and it has been submitted that there is evidence to suggest that the appellant was present at the place of occurrence where two persons had been injured. Both the injured persons had stated before the court below that the injury had been caused by the present appellant which is relevant piece of evidence admissible under Section 6 of the Indian Evidence Act.

9. Having heard the learned counsel for the parties and from perusal of the record, it appears that all the witnesses had reached at the place of occurrence after the incidence. As per the deposition of the witnesses, they had inferred that the injuries had been caused by this appellant. In fact, the injured witness had not given any statement that injury had been caused by the appellant.

10. Thus, Section 6 of the Indian Evidence Act is also not available. There is no evidence except the presence of the appellant at the place of occurrence. The injured witnesses had not been examined. Thus, there is a flaw in the prosecution story which is fatal.

11. Considering the above fact, conviction of the appellant under Section 304 Part-II I.P.C. is, hereby, set aside. Since the appellant is already on bail, he is discharged from the liability of the bail bond.

12. Accordingly, the present criminal appeal is, hereby, disposed of.

(Rajesh Kumar, J.)

The High Court of Jharkhand, Ranchi Dated 29th of November, 2022 Amar/NAFR/