High Court
Case Details
Criminal Appeal (D.B.) No. 656 of 2002 1. Ramjit Choudhary, S/o Late Gatauri Choudhary 2. Bhardul Choudhary, S/o Laxman Choudhary Both residents of Village Bhikhahi, PS & Distt. Garhwa, The State of Jharkhand … -Versus- … … Appellants … Respondent (Arising out of Judgment of Conviction dated 10.09.2002 and Order of Sentence dated 11.09.2002 passed by the Sessions Judge, Garhwa in Sessions Trial No. 26 of 2002) ---- For the Appellants : M/s A. K. Kashyap, Sr. Advocate For the State
Legal Reasoning
of occurrence. After going through her evidence, we find that her evidence is full of discrepancies and contradictions. She admittedly was residing with PW 4 who was her maternal-uncle. She in her cross-examination admits that she was tutored for 2 to 3 days before giving her evidence by PW 4 which is evident from paragraph 5 of her statement. She stated that whatever has been told to her, she is narrating before the Trial Court. 7. Save and except these evidences, there is no other material to convict these appellants. Be it noted that to apply Section 106 of the Indian Evidence Act the prosecution has first to prove the foundational fact of the presence of the accused with the deceased shortly before the incidence, only then presumption can be drawn. In this case, the prosecution has failed to discharge the initial burden. Thus, we cannot apply Section 106 of the Indian Evidence Act in this case. 8. For the reasons discussed above, the Judgment of conviction and sentence passed by the learned Trial Court in this appeal is, accordingly, set aside and the Criminal Appeal is allowed. Since the appellants are already on bail, the sureties are discharged from the liabilities of the bail bonds.
Arguments
Supriya Dayal Kashyap & Anurag Kashyap, Advocates : Mr. Azeemuddin, A.P.P. ---- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ---- J U D G M E N T Dated : 18.11.2024 By Court: Heard learned senior counsel appearing for the appellants and learned Addl. P.P. appearing for the State at length. 1. Both the appellants have preferred this appeal against the judgment of conviction dated 10.09.2002 and order of sentence dated 11.09.2002 passed by the Sessions Judge, Garhwa in Sessions Trial No. 26 of 2002, whereby the appellants have been held guilty and convicted for the offence punishable under Sections 302/34 of Indian Penal Code and they have been sentenced to undergo imprisonment for life. 2. In this case, the sister of informant-PW 4 was done to death in her matrimonial home. The charge is 302/34 of IPC as the death was beyond seven years of marriage. 3. After hearing the parties, we have gone through the judgment, documents and exhibits. The prosecution case hinges on the testimony of PW 4 who is brother of the deceased and PW 5 who was five years old child at the time of the incidence. 4. PW 4 was not a resident of the village of the accused persons where the matrimonial home was situated. It has been deposed by him that in the morning on the date of occurrence i.e. on 26.04.2001, he had gone to attend the Tilak ceremony in the village of the deceased. After attending the Tilak ceremony, he 1 went to the house of the deceased where he saw that the husband of the deceased and mother-in-law of the deceased were assaulting her. He further stated that the grandfather-in-law, who is appellant No. 1, assured him that he will manage the things. On the said assurance, PW 4 returned to his house. He further stated in his evidence, that he again during afternoon at about 2 o’clock went to the house of the deceased and saw these appellants and the mother-in-law of the deceased assaulting the deceased. He stated that as a result of the said assault, the deceased died. 5. Claim of PW 4 that he was eye to the occurrence is questionable on multiple counts. Firstly, he is a chance witness as he was not a resident of the village where the incidence took place. Testimony of this witness gives an impression that he arrived at the nick of time at the place of occurrence, as if the incidence was waiting to happen for the informant. Further, the presence of this witness at 2:00 pm at the time of death is also doubted as there was no occasion for him to return in afternoon when he once visited the house of the deceased in the morning itself. He stated that in the morning he had gone to the village of the deceased to attend Tilak ceremony. In cross-examination, he could not even say in whose house he had gone to attend the Tilak ceremony in the village where the deceased resided. Secondly, as per his testimony deceased died on account of assault perpetuated by these appellants. PW 6 is the doctor who conducted the postmortem upon the dead body of the deceased. In paragraph-3 he stated that as per his opinion, the death was due to asphyxia on account of throttling. Thus, the medical evidence does not corroborate the ocular evidence of PW 4 so far as it relates to cause of death. Though the doctor has stated that there were other injuries and all injuries were ante-mortem in nature and caused by hard and blunt substance, but the fact cannot be lost sight is that the deceased died due to throttling and PW 4, who claims himself to be the eye witness to the occurrence of murder, does not even whisper that the deceased was throttled to death. He only says that she was assaulted. Thirdly, further, in paragraph-15 this witness says that in the morning in his present the assault had not taken place. This statement contradicts his earlier statement where he stated that in his presence, in the morning the deceased was assaulted. 2 Fourthly, in paragraph-16 he says that one of his elder sister-Kabutari Devi was married in the same village and her house was situated opposite the house of the deceased. He stated that in the morning he also went to her house but he did not narrate about the fact of assault upon the deceased to her. Be it noted that Kabutari Devi was also not examined by the police in this case. Fifthly, PW-5 has deposed that PW 4 came to the place of occurrence after her mother died. 6. The next witness upon whom the Trial Court has relied upon is PW 5 who is the child witness. She is the daughter of the deceased, aged about 5 years at the time
Decision
Pending I.A., if any, stands disposed of. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment. (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 18th November, 2024 AKT/Satendra 3