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2014 Supreme(Jhk) 699
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.N. PATEL & AMITAV K. GUPTA, JJ.
Antu Gope – Appellant
Vs.
State of Jharkhand – Respondent
Criminal Jail Appeal (D.B.) No. 574 of 2003
Decided On : 10.7.2014
For the Appellant:Ms. Amrita Banerjee, Advocate.
For the Respondent: A.P.P.
Headnote:Indian Penal Code, 1860—Section 302—Murder—Conviction—It is duty of court to issue summon upon eye witness and examine him—Non-examination of eye-witnesses is fatal to case of prosecution—Delay in despatch of FIR—Charge of murder against could not be proved to hilt—Appeal allowed with direction to take proper steps to point out to IOs and APPs, importance of sending seized articles for FSL reports.
D.N. Patel, J.
1. This appeal is called out today for final hearing, nobody appeared on behalf of the appellant. Counsel for the appellant, who was appointed by this court as Amicus Curiae, is absent. We, therefore, appoint Ms. Amrita Banerjee, who is in the panel of Jharkhand State Legal Services Authority, as Amicus Curiae. Ms. Banerjee has accepted this matter and argued out the case at length.
2. This criminal appeal has been preferred against the judgment and order of conviction and sentence dated 21st January, 2003 and 22nd January, 2003 respectively, passed by the Sessions Judge, Singhbhum West at Chaibasa in Sessions Trial No. 49 of 1998. This appellant has been convicted and sentenced to life imprisonment for the offence punishable under Section 302 I.P.C.
3. It is the case of the prosecution that on 28th July, 1997 informant Krishna Chandra Tamsoy (PW.3) gave written report to police that on 28.07. 1997 at 9 A.M. informant's younger brother Rajesh Chandra Tamsoy (deceased) was constructing Merh in his field. In the meantime his co-villager Antu Gope (accused) came there and after sitting on the Merh he started talking with Rajesh Chandra Tamsoy in the paddy field and during the talk he assaulted Rajesh Chandra Tamsoy with Chhura and gave about 10 blow of Chhura in stomach, chest, hand, thigh and in back portion of body due to which he was badly injured and died at the place of the occurrence (in paddy field). The informant further alleged that due to Hulla of Bacchao-Bacchao raised by his younger brother, the informant with his co-villagers ran towards the place of occurrence and after seeing -2- them, Antu Gope fled away towards jungle and when he reached near his brother at paddy field, at that time he was dead.
4. Details regarding seven witnesses examined by the prosecution in a tabular chart.
| S. No. | Name of the witness | Details |
| P.W.1
| Dr. Arun Kumar
| He is the Doctor who has conducted the Post mortem of the dead body of Rajesh Chandra Tamsoy @ Suresh Chandra Tamsoy and has proved the Post-mortem report i.e. marked as Ext.1 |
| P.W.2 | Ashok Kumar | He has proved the formal FIR i.e. marked as Ext.2 |
| P.W.3
| Krishna Chandra Tamsoy
| He is the informant of this case and is brother of deceased Rajesh Chandra Tamsoy. He saw the accused Antu Gope running away from the place of occurrence. He has proved his signature and signature of Dinesh Chandra Tamsoy in the written report i.e. marked as Ext. 3 and 3/1 |
| P.W.4
| Dinesh Chandra Tamsoy
| He is the Hearsay witness. He has proved his signature and signature of Dakua Bojh Tamsoy in the Inquest report i.e. marked as Ext. 4 and 4/1. He has proved his signature and signature of Dakua Bojh Tamsoy in the seizure list i.e. marked as Ext. 4/2 and 4/3. |
| P.W.5 | Dhaneshwar Tamsoy | He is the Hearsay witness. |
| P.W.6
| Yogendra Prasad Singh
| He is the Investigating Officer of this case. He has proved the written report i.e. marked as Ext.5 and has also proved the carbon copy of Inquest report i.e. marked as Ext.6. He has proved the seizure list i.e. marked as Ext.6. He has proved the seizure list i.e. marked as Ext.7 |
| P.W.7 | Arjun Tamsoy | Declared Hostile witness |
5. It is submitted by counsel for the appellant that the prosecution has failed to prove the offence committed by this appellant beyond reasonable doubt.
The so-called eye witness P.W.3, the informant, is not an eye witness to the incident at all. Though on perusal of the First Information Report, which was lodged by P.W.3, it appears that P.W.3 is an eyewitness, but, looking to cross examination of P.W.3, it appears that he reached the place of occurrence 10 minutes after the occurrence. This witness has also stated that one Diwakar Gope is an eye witness and he was ploughing the field nearby.
