Indo Sao vs The State of Jharkhand and Another

The appellant was charged u/s 302 of the Indian Penal Code on the allegation of committing murder of Most. Jitani Devi. According to the prosecution, on 14.6.1999 at about 9:00 A.M. the deceased Most. Jitani Devi was returning to her house after taking bath from the well of one Prameshwar Sao and when she was about to enter into her house, the appellant dragged her and assaulted with sword, as a result of which she sustained injury on the back portion of her head and her five fingers of right hand were also severed. The injuries proved to be fatal and caused her death. The informant Prayag Sao claimed to have witnessed the occurrence. The cause of occurrence is said to be land dispute between the informant Prayag Sao and the accused appellant Indo Sao.

On getting information, the Chauparan Police reached to the spot and recorded fard-beyan of Prayag Sao on 14.6.1999 at about 1:30 P.M. and registered a case u/s 302 of the Indian Penal Code.

The Police, after investigation, submitted charge-sheet u/s 302, I.P.C. Charge was, accordingly, framed for the said offence and the appellant was put on trial.

In defence, the appellant pleaded not guilty and claimed to be falsely implicated.

In order to bring home the charge, the prosecution altogether examined eight witnesses. Out of them, P.W. 1- Prayag Sao (informant), P.W. 2- Santosh Sao (grand son-in-law of the deceased), P.W. 4-Mukhni Devi (daughter-in-law of the deceased) and P.W. 7- Yasoda Devi (daughter of the deceased) were said to be the eye-witnesses. The Investigating Officer Pradeep Chaudhary has been examined as P.W. 8.

However, the Doctor has not been examined by the prosecution and the post-mortem report has not been proved.

Learned trial court relied on the testimony of P.W. 1, 2, 3, 4 and 7 and held that the fact of inflicting the injury on the deceased and causing her death by the appellant on the spot has been proved by the evidences and that the prosecution has been able to establish the charge u/s 302 IPC against the appellant beyond all reasonable doubt. The appellant has been, accordingly, convicted u/s 302 IPC and sentenced to undergo imprisonment for life.

In this appeal, the appellant has assailed finding of learned trial court mainly on the ground of vital contradictions in the testimonies of prosecution witnesses and also on the ground that the cause of death of the deceased has not been proved by the prosecution.

Learned counsel appearing on behalf of the appellant submitted that the P.W. 1 claimed to be eye-witness of the occurrence, but P.W. 7 has said that P.W. 1 was not present at the place of occurrence. P.W. 7 rather himself claimed to be the eye-witness to the occurrence. There are fatal contradictions in the testimonies of P.W. 2 and P.W. 4, as well.

Learned counsel submitted that even if the other evidences of the witnesses are accepted, the prosecution miserably failed to establish the cause of death of the deceased. The prosecution has neither examined the Doctor who conducted the post-mortem nor has proved the post-mortem report, even by any other witness.

The cause of death of the deceased has not been proved by the prosecution.

Learned trial court has not taken into consideration the said vital infirmity and has erroneously convicted the appellant u/s 302 IPC.

Learned counsel submitted that there is no evidence worth the name on record to prove homicide of the deceased and in absence thereof, order of conviction suffers from palpable illegality and is liable to be set aside.

Learned A.P.P., on the other hand, supported the impugned judgment and conviction of the appellant and submitted that prosecution has been able to prove the death of Most. Jitani Devi by producing P.W. 1, P.W. 2, P.W. 4 and P.W. 7. He further submitted that in view of the consistent ocular testimony, non-examination of the Doctor or absence of post-mortem report does not vitiate the finding of guilt arrived at by learned trial court on appreciation of the said evidences on record.

We have heard learned counsel for the appellant and learned A.P.P. and meticulously scrutinized the record including facts and the evidence on record.

On reading the evidence, we find that the P.W. 1, P.W. 2, P.W. 4 and P.W. 7 claimed themselves to be the eye-witnesses of the occurrence and have been examined to prove the death of Most. Jitani Devi. But the prosecution has neither examined the doctor, who conducted the post-mortem, nor the post-mortem report has been proved and marked exhibit even under the provisions of Section 294, Cr.P.C. In absence of corroboration of the alleged injury by medical evidence, it cannot be held that the death of the deceased was on account of homicidal violence.

In view of the above discussion, we find ourselves unable to uphold the conviction of the appellant. The criminal appeal is, accordingly, allowed. The impugned judgment of conviction and order of sentence dated 26th August, 2002 passed by learned Additional District and Sessions Judge, Hazaribagh in Sessions Trial No. 81 of 2000 is set aside. We have been informed that the appellant has already remained in prison for more than 14 years, the appellant shall be set at liberty forthwith, if not wanted in any other case.