Dikshit Mishra @ Diku Mishra vs The State Of Jharkhand

This Criminal Appeal is preferred on behalf of the appellant being aggrieved by the impugned judgment of conviction dated 25.4.2022 and order of sentence dated 26.4.2022, passed by the st, learned Additional Sessions Judge-1 Godda, in S.T. No. 29A of 2011, whereby and whereunder. the appellant has been convicted for the offences under sections 302/120B/34 of IPC and 27 Arms Act and sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,000/- and in default of payment of fine further sentenced to undergo S.I. for one year for the offence under section 302/34 IPC. He has further been sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 5,000/- and in default of payment of fine amount further sentenced to undergo S.I. for six months for the offence under section 120B IPC and he has further been sentenced to undergo imprisonment for 3 years for the offence under section 27 Arms Act and all the sentences were directed to run concurrently.

We have heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the State and perused the materials available on record.

The learned counsel appearing on behalf of the appellant has submitted that the appellant is not named in the FIR. He has further submitted that the investigating officer of the case has not been examined. No weapon has been recovered and also place of occurrence has not been proved. He has further stated that on the same set of evidence co-convicts have been acquitted.

The learned counsel for the State has defended the impugned judgment and submitted that there are sufficient evidence to prove that the appellant was fully involved in the alleged offence.

The prosecution case, in brief, as per the informant Nandani Devi (PW-4) who is the wife of the deceased that all the accused persons demanded Rs. 2 lakh rangdari from the deceased as he was a contractor and when he did not pay the same he was shot dead on 08.09.2010. She has further stated that she had seen the occurrence. When she started making noise many persons came at the place of occurrence then the accused persons fled away. She has further stated that the family members had taken the injured to Bhagalpur but he died on the way. Thereafter, Boarijore (Lalmatiya)P.S. Case no. 93 of 2010 dated 08.09.2010 was registered.

Thereafter, investigation was carried out and after completion of investigation charge-sheet was submitted under sections 302,120B and 27 Arms Act. Cognizance was taken and charges were framed under the same sections.

The prosecution, in order to prove its case, has examined altogether six witnesses, out of whom, PW-5 Dr. Narendra Kumar and PW-6 Dr. Sudhir Kr. Choudhary have conducted post-mortem over the dead-body of the deceased and found following injuries:

The present case has been lodged by PW-4 who is wife of the deceased. Surprisingly, in the FIR (Ext.2) she has not taken the name of this appellant as to whether he was present at the place of occurrence or not.

PW-1 Ashok Sah and PW-2 Arun Kumar Sah are the brothers of the deceased. They have stated the manner in which the deceased died but surprisingly they have stated that they were not present at the place of occurrence when the offence took place. PW-1 in his cross-examination deposed that at the time of occurrence he was in Meharma and got information on phone and then he reached at the place of occurrence. PW-2 deposed in his cross-examination that at the time of occurrence he was present in Lalmatiya side.

Thus, these two witnesses are not eye-witnesses but hearsay witnesses.

PW-3 Shakuntala Devi and PW-4 Nandani Devi are the eye-witnesses to the occurrence who deposed in their examination-in-chief that they have seen the appellant present at the place of occurrence but in their cross-examination they have deposed that prior to the date of occurrence they had not seen this appellant at any point of time. Further in cross-examination they have stated that they came to know about the incident from the informant.

This Court is not in a position to believe the aforesaid statements as in the FIR the informant has never taken name of the appellant to be present at the place of occurrence. Further the Investigating Officer of this case has not been examined which caused prejudice to the prosecution as there is contradiction in the material evidence.

Considering the aforesaid facts there is doubt in the mind of the Court that whether the appellant was present at the place of occurrence. Thus giving benefit of doubt, we hold that the prosecution has miserably been failed to prove the guilt of the appellant beyond all reasonable doubts.

In the facts and circumstances of the case the conviction of the appellant under sections 302/120B/34 of IPC and 27 Arms Act vide judgment dated 25.4.2022 and the order of sentence of R.I. for life with fine of Rs. 10,000/-under section 302/34 IPC and R.I. for 10 years with fine of Rs. 5,000/-for the offence under section 120B IPC and imprisonment for 3 years for the offence under section 27 Arms Act dated 26.4.2022 passed by the learned Additional Sessions Judge-1^st, Godda in S.T. case No. 29A/2011 are set-aside.

The instant Criminal Appeal is allowed.

The Court directs the above-named appellant to be released forthwith from custody, if not required in any other case.

Pending Interlocutory Application(s), if any, stand disposed of.