Jharkhand High Court
Damak Rai Taisun Son Of Late Pasna Rai ... vs The State Of Jharkhand on 30 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 751 of 2017
[Arising out of judgment of conviction dated 25.01.2017 and order of sentence
dated 27.01.2017 passed by learned Sessions Judge, West Singhbhum at
Chaibasa in Sessions Trial No. 240 of 2014]
Damak Rai Taisun son of Late Pasna Rai Taisun resident of Village Mamla,
P.O. and P.S. Tebo District West Singhbhum
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant: Ms. Chitaili C. Sinha, Advocate
For the State : Mr. Anup Pawan Topno, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court The sole appellant is before this Court in appeal against the judgment of
conviction and sentence under Section 302 of the IPC.
2. As per the FIR, the informant was taking liquor on 23.06.2014, in the
house of Bijay Taisun. Deceased and appellant-Damak Rai Taisun also took
liquor there and returned to their home. After a while, he heard the noise of
altercation from his house. When he along with Bijay Taisun went to his house,
they saw marks of assault over the body of Etwari Bodra (deceased). Deceased
died of injuries sustained in physical assault. It was suspected that it was the
appellant who has assaulted the deceased.
3. On the basis of the fardbeyan, Chakradharpur, Tebo P.S. Case No.04/14
was registered under Section 302 of the IPC against the appellant. Police on
investigation, found the case true and submitted charge sheet and the appellant
was put on trial for charge under Section 302 of the IPC. Altogether seven
witnesses were examined and relevant documents including fardbeyan and post
mortem examination were adduced into evidence and marked as Exhibits 1 - 4.
4. Judgment of conviction and sentence has been assailed on the ground that
there is no eye witness to the actual occurrence and there are vital contradictions
in the testimony of P.W. 1 and P.W. 2 who have been arrayed as eye witness on
behalf of the prosecution. Learned trial Court has convicted the appellant
merely on suspicion.
5. Learned A.P.P. has defended the judgment of conviction and sentence.
6. Deceased died a homicidal death, is proved by the Doctor (P.W. 6), who
conducted post-mortem examination on the dead body. Five ante mortem
injuries were found on the dead body and on dissection, fracture of left side of
occipital bone and blood clot on brain underneath the fracture area was found.
Doctor opined that death was due to head injury, causing hemorrhage and shock
caused by hard and blunt substance.
7. From the FIR itself, it is evident that the informant was not the eye
witness. Informant (P.W. 1) has deposed in para 1 that it was Bijay Taisun (P.W.
2), who was assaulting the deceased in the house of the appellant. He has
nowhere deposed that Damak Rai Taisun (appellant) was assaulting his wife.
P.W. 2- Bijay Taisun is also not an eye witness to the incidence. He has
deposed that when he went to the house of the appellant, he saw the dead body
of his wife which has marks of injury over her head and face. When he enquired
from him as to who had killed her, he confessed of his guilt.
P.W. 3 has deposed that on hearing about the incidence, he went to the
place of occurrence in the next morning which is the house of the appellant.
P.W. 4 in para 5 of his cross examination has deposed that he does not
know as to how the deceased died.
P.W. 5 has not supported the prosecution case and was declared hostile.
P.W. 7 is the Investigating Officer, has stated the place of occurrence to
be situated in the house of the appellant.
8. On combined reading of the testimony of witnesses, it appears that P.W.
1 has developed a new story stating therein that it was Bijay Taisun who has
committed the offence. This witness has neither been declared hostile, nor his
evidence has been corrected if at all there was any typographical error in naming
the accused. In the absence of any other eye witness to the incidence, it is not
safe to rely on the testimony of P.W. 1 who has given a different version of the
incidence. The only evidence left is the extra-judicial confession purported to
be made to P.W. 2. In view of the fact that P.W. 1 has implicated P.W. 2 himself,
therefore, the said extra judicial confession made to him, cannot be made the
basis of conviction.
9. Appellant is entitled to benefit of doubt. Judgment of conviction and
sentence is 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.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, 30th September, 2024
AFR/Anit
