). ……… Raushan Linda, S/o Late Emanual Linda, R/o Ara Barka Toli, P.O. and v. For the
Case Details
Cr. Appeal (D.B.) No. 1547 of 2017 ….….. (Against the judgment of conviction and order of sentence both dated 25.07.2017 passed by learned Additional Judicial Commissioner-VII, Ranchi in Session Trial No.656 of 2013). ……… Raushan Linda, S/o Late Emanual Linda, R/o Ara Barka Toli, P.O. and P.S. Tatisilway, District- Ranchi ….. Appellant The State of Jharkhand …. Respondent ……… Versus For the Appellant For the State : Mr. Abhay Shankar Dayal, Advocate Ms. Supriya Dayal, Advocate : Mr. Ram Prakash Singh, AddI. Public Prosecutor ----------- PRESENT Sri Ananda Sen, J. Sri Gautam Kumar Choudhary, J. J U D G M E N T CAV On 19.09.2024 Per Ananda Sen, J.: Pronounced On 26/09/2024 The instant criminal appeal is directed against the conviction of the sole appellant under Section 302 of the Indian Penal Code vide judgment of conviction and order of sentence both dated 25.07.2017, whereby he has been sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000/-.
Legal Reasoning
2. Learned counsel for the appellant submits that due to enmity this appellant has been falsely implicated in this case. It is an admitted case of the prosecution that a dispute in respect of title of property is going on between the parties and a title suit was also pending. The informant while deposing as P.W.-1 never whispered about the presence of P.W.-5 along with him when the occurrence had taken place. It is the contention of the appellant that these two witnesses became a chance witness, which is absolutely improbable. The deceased infact died due to road accident, which would be apparent from the evidence of the Doctor. Further, it has been argued that in the F.I.R. the informant had named this appellant along with one 1 David as an accused, who as per the informant was along with this appellant at the time of occurrence, but surprisingly during trial he had exonerated David and stated that due to wrong impression David has been made an accused in place of Jitu Linda. The name of Jitu Dinda was not even whispered in the F.I.R. Aforesaid act of P.W.-1/ informant makes him unreliable. Further as per him the occurrence had taken place on a busy road, but surprisingly not even a single independent person was produced by the prosecution as witness. Even the auto driver, in whose auto P.W.-1 and P.W.-5 were allegedly travelling was not made witness. The wife of this P.W.-1 has also not been made a witness, which creates about of the prosecution case on the point of presence of P.W.-1 at the place of occurrence. 3. Learned counsel for the State submits that P.W.-1 and P.W.-5 are eye witness, who had seen the occurrence. There is nothing in their testimony to disbelieve them. Non-examination of independent witness cannot be fatal for the prosecution, when P.W.-1 and P.W.-5 has consistently supported the prosecution case. So far as enmity is concerned, it has been submitted that the same cut both ways, thus, the appellant cannot take benefit of the same. He prays for dismissal of the same. 4. The prosecution case is based on the fardbeyan of Joseph Linda (P.W.-1). He stated that on 26.04.2013, he was going to Namkum Block with his son, Subhansh Linda to bring back his wife Binita Lakra from Block Office. As soon as his auto rickshaw reached near Army Cantonment, he saw his father (deceased) returning to his house on his bicycle. Suddenly the appellant along with David reached there on a motorcycle and from behind dashed his father’s bicycle, due to which Pitter Linda fell down. Thereafter, the appellant started giving blows with an iron rod on the head of Pitter Linda. On seeing this, he came down from the auto rickshaw and rushed to protect his father. In the meantime, the appellant and his associate 2 fled towards Baram with the motorcycle. He came near his father and found him dead. 5. On the aforesaid fardbeyan, Tatisilway P.S. Case No.33 of 2013 was registered under Sections 302/34 of the Indian Penal Code. The police after investigation filed chargesheet against the appellant. 6. Thereafter the Court took cognizance and committed the case to the Court of Sessions. As the appellant pleaded not guilty, charge was framed and he was put on trial. Eight witnesses were examined in this case, who are as follows:- (i) P.W.-1 Joseph Linda informant of this case (ii) P.W.-2 Jems Linda (iii) P.W.-3 Silwanus Linda (iv) P.W.-4 Sandeep Linda (v) P.W.-5 Subhansh Linda (vi) P.W.-6 Dr. Binod Kumar Ravi (vii)P.W.-7 Upendra Rai. (viii)P.W.-8 Bansh Narayan Singh 7. The following documents and material objects were also exhibited by the prosecution:- Exhibit-1 Signature of Joseph Linda in fardbeyan Exhibit-1/1 Fardbeyan Exhibit-1/2 Endorsement on fardbeyan Exhibit-2 Signature of Joseph Linda on inquest report Exhibit-2/1 Signature of Silwanus Linda on inquest report Exhibit-3 Signature of Subhansh Linda on 164 Cr.P.C. Exhibit-3/1 statement of Subhansh Linda Exhibit-4 postmortem report. Exhibit-5 F.I.R. Exhibit-5/1 signature of B.N. Singh on the F.I.R. Exhibit-6 Inquest report P.W.-1 (Joseph Linda) is the informant of this case. He deposed that occurrence took place on 26.04.2013 at about 12.45 P.M. He was going to Namkum. He further stated that his father Late Pitter Linda had gone to consult his Advocate regarding Title Suit No.75 of 2006 and he was coming back to his house by his bicycle. When he reached near Army Cantonment, two persons, namely, Raushan Linda and Jitu Linda came on motorcycle and bump it into the bicycle of his father. When his father fell down Raushan Linda gave several blows of iron rod on the head of informant’s father, Pitter Linda. On seeing this he came down from the auto rickshaw to 3 protect his father. On seeing him Raushan Linda and Devid fled from there. When he came near his father, he saw him dead. His statement was recorded by police, which was marked as Exhibit-1. His signature on the inquest report was marked as Exhibit-2. He stated that he had wrongly implicated David in this case for which, he informed the police on 09.05.2013. In cross-examination, he further stated that after the occurrence neither he nor his family members went to the said land for setting it on fire, but a case was registered against him. He further stated that he has recorded the name and address of David implicating him in the said incident. The Officer-in- charge has recorded his re-statement on the date of occurrence in which also he had taken name of David. P.W.-2 (Jems Linda) is elder brother of the deceased. He has not seen the occurrence and was informed by informant, Joseph Linda about the same. P.W.-3 (Silwanus Linda) is the brother of the deceased, who got information about the incident from the villagers. He proved his signature on the inquest report, which was marked as Exhibit-2/1. P.W.-4 (Sandeep Linda) is a hearsay witness, who got information about the incident from a lady. P.W.-5 (Subhansh Linda) is a child witness, who is the son of the informant and also the eye witness of the occurrence. He stated that on 26.04.2013 at about 12.15 Hrs. he was going along with his father to bring his mother from Namkum Block in an auto. He saw two persons in a motorcycle dashed the cycle of his grand-father, as a result of which his grand-father fell down. Suddenly, Roushan Linda got down from the motorcycle and hit his grand-father with an iron rod on his head. On seeing the act of the appellant his father shouted that his grand-father had died. He stated that he will identify the persons who assaulted his grand-father. He identified his signature on the statement given before the Magistrate under Section 164 of Cr.P.C., which was marked as Exhibit-3. He identified the appellant in Court. 4 P.W.-6 (Dr. Binod Kumar Ravi) had conducted the postmortem examination of the deceased, Piter Linda and found the following:- “Rigor mortis all over body. Abdomen not distended, dry blood stain over head, face and clothes. Lacerated wound:- 1. 6X2cm. x bond deep over left parietal region. 2.9x2cm. x bone deep over right tempero-parietal region. Internal:- There is presence of diffuse contusion of whole scalp and both temporalis muscles. Mosaic fracture of both temparo parietal frontal skull. Contusion of brain subdural blood and blood clots over both sides of brain.” The Doctor opined that the injuries are antemortem caused by hard blunt substance and death is due to head injury. The postmortem report was marked as Exhibit-4. P.W.-7 (Upendra Rai) is the Investigating Officer. He stated that on information that a murder has been committed near Army Cantonment they reached the place of occurrence where the Officer- in-charge recorded the fardbeyan of Joesph Linda, which was identified by him and marked as Exhibit-1/1. The endorsement of the Officer-in-charge was marked as Exhibit-1/2 and the formal F.I.R. was marked as Exhibit-5. After taking charge of investigation, he recorded the re-statement of the informant and statement of the witnesses. He identified the signature on the inquest report, which was marked as Exhibit-6. He sent the body for postmortem. The appellant surrendered before him and he recorded his statement. P.W.-8 (Bansh Narayan Singh) is the Officer-in-charge of Tatisilway Police Station, who recorded the fardbeyan of the informant and after transfer of the Investigating Officer, he got the charge of the investigation and submitted chargesheet against appellant- Raushan Linda. 8. The Trial Court after completion of the prosecution evidence examined this appellant under Section 313 of Cr.P.C. and after hearing the parties, convicted the appellant under sections 302/34 of IPC and sentenced him as aforesaid. 9. After hearing the learned counsel for the parties, we find that the entire case is based on the oral evidence of P.W.-1 and P.W.-5. P.W.-1 5 is the informant and son of the deceased, whereas P.W.-5 is grand-son of the deceased and son of P.W.-1. He is a child witness. As per both of them, they were traveling in auto when they saw the deceased returning by his bicycle when Roushan Linda and Jitu Linda came and dashed their motorcycle into the bicycle of the deceased. When he fell down, Roushan Linda gave several blows on the head of the deceased with iron rod and they fled. 10. Now the issue, which falls for consideration is whether these two witnesses are reliable or not. P.W.-1 happens to be a chance witness. From his evidence, it is clear that initially, he had implicated one David in this case to be an accused, but later on, he stated that he was not involved in this case. He admitted that he had given the detail of David while lodging the F.I.R. and also in his statement under Section 161 of Cr.P.C., but later on, he himself admits that due to mistake he had implicated David. Further though in the F.I.R., he stated that he was going in the auto along with his son (P.W.-5), but in his evidence he has not whispered about the presence of his son along with him. In his evidence, he has admitted that there was long standing dispute between the deceased and this appellant as Title Suit No. 75 of 2006 was pending between them. 11. P.W.-5 is the minor son of P.W.-1. He is also a chance witness. He was going in the auto to bring back his mother along with P.W.-1. The fact that P.W.-5 was also going to bring back his wife has not been narrated by him while deposing as P.W.-1. The wife of P.W.-1 and mother of P.W.-5 was not also examined to establish correctness of the aforesaid fact. He also admits that there was a land dispute between the deceased and this appellant. 12. It has been admitted by both the witnesses that the place where the accident had occurred is a busy road, but surprisingly not even a single independent witness has been examined in this case in support of the prosecution. The prosecution has heavily relied upon the chance witnesses, who are none, but the immediate family members of the deceased. 6 13. So far as the medical evidence is concerned, the Doctor found only two lacerated wounds on the left parietal region and right temporo-parietal region, which is caused by hard and blunt substance. The Doctor in his cross-examination has stated that the said injury can be caused in a road accident or on falling on the stone. Be it noted that it is the defence version that the deceased died because of the road accident. 14. It is the case of the eye witnesses that the deceased while returning by the bicycle was dashed by the appellant, who was riding the motorcycle and thereafter the deceased was assaulted. Surprisingly, the police came to the place of occurrence, but they did not seize the bicycle, which the deceased was riding nor the identity of motorcycle which this appellant was riding has been established or the registration number of the said vehicle was tried to be ascertained by the police. The Investigating Officer clearly admitted in paragraph 9 that he had not recorded the statement of any of the independent witnesses. He took the statement of the informant to be true and did not verify the correctness of the statement of the informant through other witnesses. He also admitted that the day after the incident had taken place, the house of the appellant was set on fire and was looted wherein the informant was a party. 15. All the other witnesses are hearsay witness, who got the information from the informant. These witnesses had also admitted existence of land dispute between the parties. It is an admitted fact, that initially the informant had implicated one David as an accused, but thereafter gave him a clean chit, coupled with the fact that there was admitted a land dispute between the parties, creates a doubt in the mind of the Court on the reliability of this witness. When this witness had falsely implicated David and thereafter withdrawn his allegation, there is high probability that he may impute false allegation against this appellant also, in view of the admitted land dispute and litigation pending between the parties. The defence of the appellant cannot be a brushed aside that the deceased died as he fell 7 from the bicycle on a hard surface as the Doctor also stated that the same can happen. The death can be due to road accident. None examination of any independent witness to verify the statement of the P.W.-1 and the admission of the Investigating Officer that he has solely relied upon the statement given by the informant and did not get the same verified from any other witnesses also makes the investigation unreliable and faulty. The informant and P.W.-5 became a chance witness, but their statement has not been corroborated by any independent witness. On the aforesaid facts and scenario, it will not be proper for this Court to come to a conclusion that the prosecution has been able to prove the guilt of this appellant beyond all reasonable doubt. Thus, appellant deserves benefit of doubt in this case. 16. Accordingly, the instant criminal appeal stands allowed. 17. The judgment of conviction and order of sentence both dated 25.07.2017 passed by learned Additional Judicial Commissioner-VII, Ranchi in Session Trial No.656 of 2013 is set aside. 18. As the appellant is in custody, he shall be released forthwith, if not required in any other case. 19. Let Trial Court Records along with a copy of this judgment be sent to the concerned trial court forthwith. (Ananda Sen, J.) Gautam Kumar Choudhary, J: I agree. (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated 26/09/2024 NAFR /R.S./ Cp 03. 8