(Against the judgment of conviction and order of sentence, both v. For the State

Judgment

: We have heard learned counsel appearing for the appellant and learned counsel for the State at length.

#2. This appeal has been listed today under the heading for “Orders” for considering an application under section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for releasing the appellant on bail after suspending his sentence.

#3. The learned counsel appearing on behalf of appellant argued the entire case on merits, even referred the evidence of

each of the witnesses and also the exhibits. The learned counsel appearing on behalf of the State also argued this case referring to the evidences and the documents. In fact the entire appeal on merits was heard at this stage, consuming much time. The trial Court record is also with us.

#4. When both the parties concluded their arguments, we had put up a question whether more remains to be argued on merits in the entire appeal, to which both the learned counsels submitted that in the final hearing of the appeal also they will only repeat their argument of today. There’s nothing more to argue, as they have covered all the points.

#5. Considering their arguments, we expressed our view as to why not the entire appeal be disposed today, to which both the parties agreed. Thus, this appeal is final heard and disposed of today at this stage.

#6. This appeal arises out of judgment of conviction and order of sentence, both dated 25.05.2023 in Sessions Trial Case No. 242 of 2022 whereby and whereunder learned Session Judge, Chaibasa convicted the appellant, namely, Bowas Bodra under Sections 302 of the Indian Penal Code and sentenced him to undergo RI for life under Section 302 of the Indian Penal Code with fine of Rs. 10,000/-.

#7. The FIR is at the instance of the mother of the accused and wife of the deceased, who stated that her husband, namely, Andriyas Bodra returned home drunk and started abusing her. This appellant protested. The deceased then took a stick and attacked the informant when his son, who is the appellant, snatched the danda and gave a blow on the head of the deceased as a result of which he fell down. All the family members left him in the room. On the next day they realized that the deceased died. The village Munda was informed. Thereafter the police reached and the FIR was lodged under section 302 of IPC.

#8. The police after investigation submitted chargesheet under section 302 of the Indian Penal Code against this appellant and since the appellant pleaded not guilty to the charge, he was put on trial. During the trial eight witnesses were examined in this case by the prosecution whose names are here under:- i. PW1 – Yakub Bodra ii. PW2 – Jusaph Bodra @ Munda 2 iii. PW3 – Edal Bodra iv. PW4 – Ratnu Soy v. PW5 – Dr. Asim Kumar Majhee vi. PW6 – Wilson Purty vii. PW7 – Sanjeev Kumar viii. PW8 – Lakhan Hembrom

#9. Several documents were exhibited which are as follows: i. Exhibit P1/PW2 ii. Exhibit P1/1/PW4 iii. Exhibit P1/2/PW7 iv. Exhibit P1/3/PW7 v. Exhibit P2/PW2 vi. Exhibit P2/1/PW7 vii. Exhibit P3/PW5 viii. Exhibit P4-PW7 ix. Exhibit P4/1/PW8 x. Exhibit P5/PW7 xi. Exhibit P6/PW7 xii. Exhibit P6/1PW7 : Signature of PW2 namely, Jusaph Bodra @ Munda upon fardbayan : Signature of PW4 namely, Ratunu Soy upon fardbayan : Fardbayan of informant Edal Bodra in writing and signature of PW7 namely, Sanjeev Kumar, I.O. : Endorsement upon fardbayan to register FIR in writing and signature of Birbal Hembram : Signature of PW2 namely, Jusaph Bodra @ Munda upon carbon copy of inquest report. : Carbon copy of inquest report in writing and signature of ASI Sanjeev Kumar, PW7 : Postmortem report of deceased Andriyas Bodra in writing and signature of PW5 namely, Dr. Asim Kumar Majhee : Seizure list in writing and signature of PW7 namely, Sanjeev Kumar, IO : Signature of PW8 namely, Lakhan Hembrom upon seizure list. : Formal FIR prepared by computer operator of Tebo PS Namely, Manoj Manjee under the supervision and signature of the then officer-in-charge namely, Birbal hembrom of Tebo, PS : Biological Report received from FSL, Ranchi : DNA Report received from FSL, Ranchi

#10. The trial Court after closure of the evidence recorded the statement of this appellant under section 313 of the Cr.PC. After hearing the arguments of the parties, the Trial Court convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo RI for life.

#11. The learned counsel for the appellant submits that on the basis of section 106 of the Evidence Act and on the basis of fardbeyan this appellant has been convicted. As per her, there is no application of section 106 of the Evidence Act in this case as 3 the prosecution has primarily failed to prove the guilt of this appellant beyond all reasonable doubt. All the witnesses examined in this case did not support the prosecution case, thus, the charge against the appellant failed. The fardbeyan is not a substantive piece of evidence and in this case the informant has been declared hostile.

#12. The learned counsel for the State argues that even if the witnesses have become hostile but the medical report clearly suggests that the deceased died homicidal death. The deceased died in his house where this appellant was present thus it was for the appellant to explain as to how the deceased died and as the appellant failed to explain the circumstances, he has been rightly convicted in this case with the aid of section 106 of the Evidence Act. It is submitted that though the informant has been declared hostile, yet the existence of fardbeyan is not doubted thus the appellant has been rightly convicted.

#13. As stated earlier the informant of this case is the mother of this appellant and wife of the deceased. As per the FIR she stated that the deceased came in a drunken condition and started abusing her. This appellant being the son protested when the deceased took a heavy stick and want to assault her. This appellant being the son snatched the stick from his father and gave one blow on the head of his father thus he fell down. Later on in the morning it was found that he was dead.

#14. From the prosecution case, it is clear that the entire occurrence had taken place in the house of the deceased and the appellant. PW1 who is the brother of the deceased stated that the deceased died because of injury on his head but he doesn’t know how it happened. He was declared hostile. 4 PW2 exhibited his signature on the fardbeyan which was marked as P1 and his signature on the inquest report which marked as P2 but he stated that he doesn’t even know as to how deceased died. He was also declared hostile. PW3 is the informant, who has been declared hostile. She stated that her husband died as he fell down. She stated that she was the author of the fardbeyan and the police had read over the fardbeyan before her to which she put her signature. She has not supported her statement in her fardbeyan. She has not stated that it is this appellant who has assaulted the deceased. PW4 is the daughter-in-law of the deceased who stated that the informant had given her statement before the police which was her fardbeyan. She has also signed the same which was marked as Exhibit P1/1. She stated that deceased died as he fell down. She also was declared hostile. PW5 is the doctor who conducted the postmortem of the deceased. He found the following injuries: External injury: i. Lacerated wound on occipital region, margin irregular, blood clot present, colour of base of wound reddish brown. ii. Lacerated wound on left parietal region, margin irregular, blood clot present reddish brown. iii. Blister of skin in right renal area present blister contain blood, size of wound 03 inch x 02 inch. Internal Injury: i. Haematoma in left parietal and occipital wound present. Skull bone not fracture, brain matter shows contusion. ii. Lungs congested. iii. Heart empty. iv. Liver empty. v. Spleen ruptured vi. Abdominal cavity had blood and clots. vii. 09, 10 and 11 ribs of left side fracture in posterior axillary line. viii. Stomach undigested food. He opined that death was due to head injury and intra- abdominal hemorrhage by hard and blunt object. In the cross examination he admitted that this type of injuries can be caused 5 due to fall and if one falls flat face on rock there can be injury in the ribs as the injury which has been found in the ribs of the deceased. PW6 also has been declared hostile as the said witness stated he doesn’t know as to how the occurrence had taken place. PW7 is the Investigating Officer. He exhibited his signature in the inquest report and on several documents. He proved the place of occurrence. He stated that he seized bamboo stick which was used as a murder weapon on which there were blood stains. He stated that he recorded the statement of all the witnesses. He also sent the bamboo to the Forensic Science Laboratory, Ranchi and has obtained the report which was also marked as exhibit. He admitted that he had not seized any blood stained soil nor collected blood from the person of the deceased but only sent the blood stained bamboo for the examination, however the bamboo was not produced before the Court. PW8 stated that he was in the village on the date of occurrence and the appellant had assaulted the deceased with the stick and committed his murder but in the cross examination he stated that he is not the eye witness to the occurrence. He stated that he is the witness to the seizure of the murder weapon.

#15. Thus, from the evidence laid by the prosecution, we find that none of the witnesses had stated that this appellant had committed murder by assaulting the deceased. The murder weapon which was the bamboo, was seized and was sent to the Forensic Science Laboratory for examination. The report of the Forensic Science Laboratory which is exhibit P6/PW7 mentions that blood could not be detected in the bamboo. Further from the exhibit P6/1/P7 which is also DNA report we find that it has been mentioned that since this swab was blood negative from the bamboo, no DNA could be generated. This report clearly falsifies 6 the statement of the I.O. that a blood stained bamboo was recovered from the place of occurrence which is the murder weapon.

#16. It is well settled that FIR is not a substantive piece of evidence. What has been narrated in the FIR must be proved by the prosecution witnesses. In this case the statement made in the FIR has not been proved by anyone. Even the author of the FIR has turned hostile and had not proved the prosecution case.

#17. The postmortem report suggests that there are some injuries in the head and the body but the doctor stated that these injuries can be caused if a person if he falls on the rock or hard surface. The wife of the deceased and daughter-in-law of the deceased had stated that the cause of death of the deceased is due to fall.

#18. From the evidence gathered above and the analysis thereon, we find that there is no material to prove the guilt of this appellant. The trial Court had held that though the witnesses stated that the deceased died due to fall but no witness has proved that. Thereafter the Court held the appellant guilty as the statement of the witnesses could not be proved. This is an absolutely a wrong procedure which has been adopted by the trial Court. It is the prosecution witnesses who stated that the deceased died due to fall. Even if this statement is different than what has been stated in the FIR, it is not the duty of the defence to prove the fact and to establish the charge under section 302 of the Indian Penal Code. Rather it is the duty of the prosecution to prove it. In this case, the prosecution has failed to prove the charge. The prosecution witnesses version are different for which the defence cannot be prejudiced. If there are major variation in the statement of prosecution witness the prosecution has to suffer. 7

#19. The trial Court also relied upon the fardbeyan while convicting the appellant. This is also a wrong approach. What has been stated in the fardbeyan needs to be proved by the author of the fardbeyan in the Court, if the said author was alive or by other witness. In this case, author was alive and was produced as a witness, but she had not supported the statement in the fardbeyan. Thus, what has been stated in the fardbeyan has not been corroborated, thus cannot be accepted as evidence.

#20. The trial Court thereafter held that as the occurrence has taken place in the house of this appellant and the body was recovered from the house, it is the appellant who had concealed the real fact, thus he is to be held guilty. This is also a very wrong approach. It is an admitted case that in the said house along with this appellant there were other two occupants i.e. mother of the appellant (wife of the deceased) and wife of this appellant. It is not a case that the appellant was alone living in the house along with the deceased. When it is admitted that there were other occupants in the house, this appellant cannot be solely made responsible for the act, if at all it happened. It is not the duty of this appellant to explain the cause of death in terms of section 106 of the Evidence Act. It is well settled that section 106 of the Evidence Act can be applied only when the prosecution has proved the involvement of the accused in the crime beyond all reasonable doubt which has been held by the Hon’ble Supreme Court in the case of “Anees vs. State Government of NCT” reported in 2024 SCC OnLine (SC) 757. The Hon’ble Supreme Court in details had discussed the principle governing the applicability of section 106 of Evidence Act. The Hon’ble Supreme Court has held that section 106 of the Evidence Act in a criminal case should be applied with care and caution. The ordinarily rule which applies to criminal trial in this country is 8 that onus lies with the prosecution to prove the guilt of the accused and the same is not modified by the provision contained in section 106 of Evidence Act. Section 106 of the Evidence Act cannot be invoked to make up the ability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. The section cannot be used to support the conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that the crime was committed. Even though it a matter specifically within the knowledge of the accused but it does not throw the burden on the accused to show that no crime was committed. It has been further held that to infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So until a prima- facie case is established by the evidence the onus does not shift to the accused. Further it has been held that section 106 of Evidence Act would apply to cases where the prosecution would be said to have succeeded in proving facts from which reasonable inference can be drawn regarding guilt of the accused. For better appreciation it is necessary to quote paragraph nos. 43, 44 and 50 of the aforesaid judgment which is as under: “43. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 44. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution 9 has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. 50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused.”

#21. Considering what has been held above, we find that the prosecution has miserably failed to prove the guilt of this appellant. When the prosecution has not been able to prove the guilt of the appellant there cannot be any application of section 106 of the Evidence Act. The conviction of the appellant under Section 302 of IPC vide judgment of conviction dated 25.05.2023 passed by learned Sessions Judge, Chaibasa in Sessions Trial Case No. 242 of 2022, is hereby set aside and accordingly, the sentence awarded by the learned Trial Court vide order dated

25.05.2023 of life imprisonment is also set aside. Thus, the appellant is acquitted of the charge.

#22. Accordingly, this Criminal Appeal is allowed and the above named appellant to be released forthwith from custody, if not required in any other case. I.A. No. 9388 of 2024

#23. Since the learned counsels for the appellant and the State argued the full appeal on merit, it would be a grave injustice to keep the appeal pending for decades and release the appellant on bail. It will also be a wastage of judicial time. We have heard the appeal finally and after going through the evidence, we had 10 come to a conclusion that this appellant needs to be acquitted, thus we had acquitted him of the charges, setting aside the judgment of conviction and order of sentence. Thus, this interlocutory application filed for release the appellant on bail has become infructuous.

#24. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith. (ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi Dated: 04th September 2024 Tanuj/ A.F.R. 11