Jharkhand High Court
Pawan Sao Son Of Sri Mahendra Sao ... vs The State Of Jharkhand on 25 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 1163 of 2017
[Arising out of judgment of conviction dated 27.05.2017 and order of
sentence dated 29.05.2017 passed by learned District &Additional
Sessions Judge-I, Giridih in Sessions Trial No. 245 of 2008]
1. Pawan Sao son of Sri Mahendra Sao resident of Village Mirjaganj,
P.O. Mirjaganj. P.S. Jamua, District Giridih
2. Mahendra Sao, son of Late Ramji Sao resident of Village Mirjaganj,
P.O. Mirjaganj. P.S. Jamua, District Giridih
.... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants
: Mr. Arwind Kumar, Advocate
For the State : Mr. Sardhu Mahto, A.P.P.
For the Informant: Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 18.10.2024 Pronounced On: 25.10.2024
Per Gautam Kumar Choudhary, J. Appellants are before this Court against
the judgment of conviction and sentence passed under Sections 302 and
328/34 of the IPC.
2. Informant is the mother of the deceased. As per her statement
given to the police, on 17.01.2008, Pawan Sao and Mahendra Sao
(appellants) had come to her house and took her son Suraj Sao along
with them. When after lapse of time her son did not return, she went
looking for him and saw her son in front of the house of Pawan Sao. He
was writhing with pain and told her that both the appellants had
indiscriminately assaulted him and forced him to consume something.
Saying so, he became unconscious. The deceased was admitted in
Giridih Hospital for treatment where he died during course of
treatment. The genesis of the offence has been stated regarding financial
dispute of a Committee in which his son was a member.
3. On the basis of the fardbeyan, Jamua P.S. Case No.14/2008 of
registered under Sections 302, 328/34 of the IPC against both the
appellants. Police on investigation submitted charge sheet under
Sections 302, 328/34 of the IPC and the appellants were put on trial
under these Sections.
4. Altogether 12 witnesses have been examined on behalf of
prosecution and relevant documents including post-mortem
examination report and FSL report, have been adduced into evidence
and marked as Exhibit 1 - 7.
5. Judgment of conviction and sentence has been assailed on the
ground that a suicidal death has been given a colour of homicidal death.
As per the post-mortem examination report (Exhibit 3), no external
injury either ante-mortem or post-mortem was found and it was a case
of death by suspected poisoning. The post-mortem examination report
therefore, falsifies the prosecution case of assault and forced
administration of poison. There is no eye witness to the incidence and
the judgment of conviction and sentence has been passed on conjecture
and surmises. It is also argued that P.W. 4, P.W. 7, P.W. 8, P.W. 11 and
P.W. 12, are all interested and related witness to the informant. As per
the FIR, the deceased was taken for treatment straightway to the Giridih
Hospital whereas P.W. 3 has developed a new story wherein he has
stated that he was initially taken for treatment to medical shop.
6. Learned A.P.P. has defended the judgment of conviction and
sentence.
7. It is trite law that it is not the number of witnesses that matters in
determination of a fact in issue, but it is the quality of their testimony
which decides a case. Appreciation of evidence to determine an
evidential fact, is to be made against the backdrop of overall facts and
circumstance of a case. Definition of the word 'proved' under Section 3
of the Evidence Act, is couched in a pragmatic expression and is devoid
of juristic complexity. The touch stone of proof is degree of probability
which inspires the confidence of a prudent man. It does not demand
proof to mathematical exactitude. One of the tests of veracity of an
evidence, is whether it is cogent and in accord with natural course of
human conduct.
8. From the FIR, it is evident that the deceased had left home with
these appellants and had not return after lapse of some time. FIR does
not state that anyone had come to inform the informant that deceased
had been assaulted by the appellants. In the FIR, she does not refer to
anyone being present at the place of occurrence in front of the house of
Pawan where her son was writhing in pain. She (P.W. 9) has deposed
that when she went there, she saw his son in acute pain. She has made a
material improvement in her statement by saying that when she arrived
there, Santosh Kumar, Shrawan Kumar and Raj Kishore Sao were also
present there. She has deposed that the deceased stated that appellants
had assaulted him badly. Her testimony regarding assault, has been
falsified in the post-mortem examination report. Claim of P.W. 1, P.W. 2
and P.W. 3, to be a witness to assault, cannot be accepted for the reason
that they have not been mentioned in FIR to be present at the time when
the incidence took place. Their evidence of assault is also not
corroborated by medical evidence.
9. The theory of forcibly administering poison, cannot be accepted
for the reason that at best poison can be forcibly put in the mouth, but
the victim cannot be forced to swallow it. It does not stand to reason that
a person will be forced to drink poison without suffering even a scratch
over his body. It is intriguing that, if P.W. 1, P.W. 2 and P.W. 3 really
witnessed this bizarre incidence, they did not take any step to intervene
in the incidence. Their testimony cannot therefore be accepted.
10. In view of these glaring improbabilities, the prosecution case of
forced administration of poison, cannot be accepted. Appellants are
entitled to benefit of doubt.
Judgment of conviction and sentence is not sustainable and is
accordingly, set aside.
Criminal Appeal is allowed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 25th October, 2024
AFR/Anit
