The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No.221 of 2002 ------ (Arising out of judgment of conviction dated 21.05.2002 and order of sentence dated 22.05.2002 passed by learned Additional District and Session Judge, Jamtara in Session Case Nos.278 of 2001 and 174 of 2001) ------ 1. Tarun Mandal, son of Narayan Mandal. 2. Shivdas Mandal, son of Kartik Mandal. 3. Parimal Mandal, son of Rameshwar @ Liloo Mandal. 4. Madhav Mandal, son of Bharat Mandal. 5. Nadiya Gorai, son of Ramakant Gorai. All resident of Pendhulia, P.S. Konkartola, District Birbhum. … … … Appellants Versus The State of Jharkhand. … … … Respondent ------ PRESENT : SRI ANANDA SEN, J.
Legal Reasoning
Further, we find that the informant has stated that these appellants came and took the deceased on 20.09.1990 at night but his dead body was recovered after a gap of five days. Thus, we cannot say that within a short span, the dead body was recovered. Further, the deceased went to sleep in his own mill. If that be so, we cannot comprehend as to why the appellants will go and invite the deceased to accompany them to sleep in the mill of the deceased himself. These all facts makes the prosecution case murky. 10. Thus, by giving benefit of doubt, these appellants are acquitted. The impugned judgment of conviction dated 21.05.2002 and order of sentence dated 22.05.2002 passed by learned Additional District and Session Judge, Jamtara in Session Case Nos.278 of 2001 and 174 of 2001, are hereby 3 set aside. As the appellants are on bail, they are discharged from the liability of bail bonds, so are the bailers. 11. 12. Accordingly, the Criminal Appeal stands allowed. Trial Court Record be transmitted back to the Court concerned. 13.
Arguments
: SRI GAUTAM KUMAR CHOUDHARY, J. For the Appellants For the State : Mr. Jay Prakash Pandey, Advocate : Mr. Pankaj Kumar, P.P. ------ ------ J U D G M E N T By Court, : 12th November, 2024 This Criminal Appeal is preferred on behalf of the appellants being aggrieved by the judgment of conviction dated 21.05.2002 and order of sentence dated 22.05.2002 passed by learned Additional District and Session Judge, Jamtara in Session Case Nos.278 of 2001 and 174 of 2001, whereby and wherein the appellants have been convicted for offences under Sections 302/34, 364 and 201 IPC. They were sentenced to undergo rigorous imprisonment for life under Section 302 IPC, to undergo rigorous imprisonment for 10 years for offence under Section 364 IPC with fine of Rs.1,000/- and further to undergo rigorous imprisonment for 03 years under Section 201 IPC. All the sentences were ordered to run concurrently. 2. We have heard the learned counsel representing the appellants and learned P.P. representing the State at 1 length and have gone through the oral evidence recorded during the trial as also the documentary evidence. 3. As per the prosecution case, the deceased was called from his house by these appellants on the pretext that he has to accompany them for sleeping in the mill of the deceased. The informant who is father of the deceased stated that these appellants came at night on 20.09.1990 and had taken his son but his son did not return. On the next day, he went to the mill and saw the mill locked. He searched his son but he did not get any clue. On 25.09.1990, the headless dead body of his son was recovered. Thus, F.I.R. was lodged under Sections 364/ 302/ 201/ 34 IPC. 4. From the entire evidence and the judgment, we find that the case is based on the last seen theory. Admittedly, there are no eye witnesses to the occurrence of murder. It is the case that the informant had stated that these appellants had taken his son on 20.09.1990 at night along with them so that they will sleep in the mill. On the basis of this last seen evidence, these appellants have been convicted. 5. As narrated above, there are no eye witnesses to the occurrence of murder but when we go through the evidence of Investigating Officer who is P.W.-11, in para-4 during cross-examination, he stated that one Gunadhaar Mandal had stated before the Investigating Officer during investigation that the deceased on 20.09.1990 at night about 09:30 P.M. alone came to his house, sat with him and chatted for some time and thereafter told him that he is going to the mill to sleep there. He then left. 6. From the statement of the Investigating Officer, it is also clear that this Gunadhaar Mandal had not stated before him that these appellants were present along with the deceased when the deceased had met him. 7. This Gunadhaar Mandal has been withheld by the prosecution for reasons best known. Thus, adverse inference is drawn against the prosecution under Section 114(g) of The 2 Indian Evidence Act. Section 114(g) of The Indian Evidence Act reads as hereunder:- “114. Court may presume existence of certain facts.- the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume- (a) to (f) ………………………………. (g) that evidence which could be and is not produced would, be unfavourable to the person who withholds it;” produced, if 8. This Gunadhaar Mandal is a material witness who could have thrown lights, but he was withheld. If his statement before the Investigating Officer, which the Investigating Officer vouches, is taken to be correct then these appellants were not with the deceased at that night. Further, it is Gunadhaar Mandal who has last seen the deceased and the deceased was alone. This event is sometime after the deceased left his house. This means that the appellants might have left the deceased, before the deceased met Gunadhaar Mandal. 9.
Decision
Pending I.A. if any, stands disposed of. (ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) HIGH COURT OF JHARKHAND, RANCHI Dated:- 12/11/2024 NAFR / Prashant 4