High Court
Case Details
Cr. Appeal (DB) No. 612 of 2012 --- Against the judgment of conviction dated 10.05.2012 and order of sentence dated 11.05.2012 passed by Shri Ram Dhari Yadav, learned Additional Sessions Judge-I, Koderma in Sessions Trial No. 07 of 2010. Kameshwar Yadav The State of Jharkhand --- --- Versus --- --- --- --- Appellant --- Respondent --- For the Appellant: Mr. A.K. Das, Advocate For the State: Mr. Manoj Kr. Mishra, A.P.P
Legal Reasoning
--- PRESENT Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Ambuj Nath ---- Reserved on: 15.02.2023 Pronounced on:24.08.2023 ---- Appellant Kameshwar Yadav has filed this appeal against the judgment of conviction dated 10.05.2012, and order of sentence dated 11.05.2012, passed by Shri Ram Dhari Yadav, learned Additional Sessions Judge-I, Koderma in Sessions Trial No. 07 of 2010 arising out of Koderma (Telaiya) P.S. Case No. 455/2009 corresponding to G.R. No. 1144/2011, holding the appellant guilty of the offences under sections 302/34 I.P.C and thereby sentencing him to undergo imprisonment for life along with a fine of Rs. 5,000/- for the aforesaid offence. In default of payment of fine, he was further directed to undergo S.I for two months. 2. Prosecution case was instituted on the basis of the written report of the Informant Babun Yadav, alleging therein that on 23.08.2009 at about 6.00 pm, he received information that his daughter Shrimatiya Devi has been murdered by her husband. The Informant rushed to her matrimonial home and saw the dead body of his daughter lying outside the house. There was deep cut injury on the right side of his head. Neighbours told him that the appellant, who was the husband of his daughter Shrimatiya Devi, killed her by inflicting several axe blows on her. Genesis of the occurrence is that the appellant had entered into another marriage, due to which, he used to torture the deceased. 3. After investigation, police found the occurrence to be true and submitted charge sheet against the appellant under section 302/34 I.P.C. Learned Chief Judicial Magistrate, Koderma, after taking cognizance, committed the case to the court of Sessions as it was exclusively triable by the Sessions Court. 4. Charge was framed against the appellant on 31.03.2013, under sections 302/34 I.P.C. Contents of the charge was read over and explained to him in Hindi, to which he pleaded not guilty and claimed to be tried. 2 5. In order to prove its case, prosecution has adduced both oral and documentary evidences. Mahabir Yadav (P.W-1), Nankhu Yadav (P.W-2), Banatiya Devi (P.W-3), Gango Mahto (P.W-4) and Parwatiya Devi (P.W-5) have not supported the case of the prosecution, as such, they have been declared hostile. Babun Yadav (P.W-6) is the Informant of this case. Dr. S.N. Sahu (P.W-7) has performed postmortem on the dead body of the deceased. He has proved the postmortem report, which is Ext.-2. Sadhu Charan Biruli (P.W-8) is a Police Officer. He is a formal witness. Mahendra Nath Tiwary (P.W-9) is the Investigating Officer of this case. He has proved the written report of the Informant and the signature of the witnesses on the written report which are Ext.3 series. He has proved the inquest report, which is Ext.-4. He has proved the place of occurrence. Saryu Prasad (P.W-10) is a hearsay witness. Anand Kumar (P.W- 11) is the son of the appellant. He has supported the case of the prosecution. 6. Statement of the appellant was recorded under section 313 Cr. P.C. Defence is of general denial of the occurrence and of false implication. 7. On the basis of the evidences – both oral and documentary available on the record - learned Trial Court held the appellant guilty and sentenced him accordingly. 8. Mr. Amit Kumar Das, learned counsel appearing on behalf of the appellant, submitted that only two witnesses namely Babun Yadav (P.W-6) and Anand Kumar (P.W-11) have supported the prosecution case. It was further submitted that Babun Yadav is not an eyewitness and Anand Kumar is highly interested witness and his oral testimony is not corroborated by the material facts of this case. Accordingly, it was prayed that this appeal be allowed and the appellant be acquitted of the charges. Mr. Manoj Kumar Mishra, learned A.P.P appearing on behalf of the State, submitted that Anand Kumar (P.W-11) has clearly stated that the appellant had given several axe blows on the person of the deceased, which resulted in her death. There is nothing in his cross-examination to doubt his veracity. Accordingly, it was prayed that this appeal be dismissed. 9. Now, it has to be ascertained, whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubt? In order to come to the aforesaid finding, it has to be determined: - (i) Whether the deceased Shrimatiya Devi died homicidal death, and (ii) Whether testimony of Anand Kumar (P.W-11) recorded during the trial can be relied upon to secure conviction of the appellant for committing murder of his wife Shrimatiya Devi? 10. Case of the prosecution is that Shrimatiya Devi died homicidal death. 3 From perusal of the inquest report (Ext.-5), it transpires that the dead body of the deceased was lying on the road and there were sharp cutting injuries on the right side of her head. 11. Dr. S.N. Sahu (P.W-7) has performed postmortem on the dead body of the deceased and found the following ante mortem injuries on the person of the deceased. i. Lacerated wound on the right occipital and parietal region 6”x4”x ½” brain deep ii. Fracture of parietal bone with laceration of brain matter. According to this witness, aforesaid injuries were caused by hard and heavy weapon. He has opined that cause of death of the deceased was due to shock and hemorrhage and brain injury. 12. From perusal of the postmortem report (Ext.-2), it appears that the findings of the doctor (P.W-3) regarding the injuries found on the person of the deceased, corroborates his oral testimony in the court recorded during the trial. 13. Though, nature of injuries as stated in the inquest report as also by the doctor who has performed postmortem on the dead body of the deceased, are contradictory, but the injuries were found on the head of the deceased. These Injuries cannot be said to be self-inflicted or accidental. Accordingly, we come to the finding that the deceased died a homicidal death. 14. It is further case of the prosecution that the appellant has caused homicidal death of the deceased. Informant Babun Yadav (P.W-6) is not an eyewitness. Anand Kumar (P.W-11), son of the appellant and the deceased, has claimed to be the eyewitness. He has stated that on the date of occurrence, at about 6.00 pm, he was present in the house of his father (appellant). He had gone to take Match Box from him. Suddenly his father started assaulting him. When his mother came to his rescue, she was also assaulted by her father and other family members. He has stated that his father inflicted several axe blows on her mother. Other accused persons also assaulted her due to which she succumbed to her injuries. In his cross-examination, he has stated that he resides in the house of his maternal grandfather (Informant) right from his birth. He has also stated that he was visiting the court with his maternal grandfather. He has further stated that his statement was not recorded under section 161 Cr. P.C. He has failed to give description of the boundary of the house of the appellant. He has also stated that altogether eight persons had assaulted his mother. 15. From the aforesaid statement of Anand Kumar (P.W-11), it is evident that this witness has stated that the appellant had inflicted several axe blows on her mother, due to which she succumbed to the injuries. His oral account on the manner of assault is 4 contradictory to the findings of the doctor (P.W-7), who has opined that the deceased had sustained lacerated wound on her head which was caused by hard and heavy weapon. Anand Kumar (P.W-11) has stated that altogether eight persons had assaulted his mother, but the deceased appears to have sustained only single blow on her head. It has come in the evidence that this witness was throughout residing with his maternal grandfather (Informant). The possibility of this witness being coached cannot be ruled out. Furthermore, as already discussed hereinabove, the oral account of this witness regarding the manner of assault, has been contradicted by the findings in the postmortem report. Accordingly, it will not be safe to rely on the oral testimony of this witness. 16. We have already come to the finding that the deceased Shrimatiya Devi died homicidal death. Mahendra Nath Tiwari (P.W-9) who is the Investigating Officer of this case has stated the place of occurrence to be a P.C.C road outside the house of the appellant Kameshwar Yadav. Place of occurrence is not inside the house of the appellant, rather it is a public place. Had the occurrence taken place inside the house of the appellant, burden of explaining the homicidal death of his wife would have been imposed upon him under the provisions of section 106 of the Indian Evidence Act, 1872. However, in the present case, possibility of involvement of any other person in commission of the murder of the deceased cannot be ruled out. 17. In view of the aforesaid facts, we are of the opinion that the learned Trial Court has erred in holding the appellant guilty for the offence under sections 302/34 I.P.C. Accordingly, judgment of conviction and order of sentence passed by the learned Trial Court against the appellant is set aside.
Decision
18. This appeal is allowed. Pending I.A., if any, stands disposed of. 19. Appellant is on bail. He along with his bailors are discharged from the liability towards the bail bonds. (Rongon Mukhopadhyay, J) (Ambuj Nath, J) (Rongon Mukhopadhyay, J) Jharkhand High Court, Ranchi Dated 24th August 2023 Ranjeet/