Neutral Citation No. ( 2025:JHHC:17449-DB ) Criminal Appeal (DB) No. 570 of 2010 (Against the judgment and order of conviction and sentence dated 29.05.2010 (sentence passed on 31.05.2010) passed by Sri Vishwa Nath Sahu, learned Additional District & Sessions Judge-I, Rajmahal in S.C. No. 180/1998.) 1. Niren Saha @ Niren Sah, S/o Late Satrughan Saha, R/o Vill- Kharwatola, P.O. & P.S.- Rajmahal, Dist.- Sahebganj 2. Anil Saha @ Anil Sah, S/o Late Jyotish Saha, R/o Vill- Chatulchotobari, P.O. & P.S.- Rajmahal, Dist.- Sahebganj. ... Appellants Versus The State of Jharkhand. … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ---- For the Appellant : Mr. A.K. Kashyap, Sr. Adv. For the State : Mr. Manoj Kumar Mishra, A.P.P. ---- Dated : 01/07/2025 CAV JUDGMENT Per Rongon Mukhopadhyay, J. : 1. Heard Mr. A.K. Kashyap, learned senior counsel for the appellant and Mr. Manoj Kumar Mishra, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 29-05-2010 (sentence passed on 31-05-2010) passed by Sri Vishwa Nath Sahu, learned Additional District & Sessions Judge-I, Rajmahal in S.C. No. 180/1998 whereby and whereunder, the appellants have been convicted for the offence under Section 302/34 IPC and have been sentenced to rigorous imprisonment for life along with a fine of Rs. 5,000/- each and in default in payment of fine, to undergo simple imprisonment for 6 months. 3. The prosecution case arises out of the fardbeyan of Haradhan Sah recorded on 10-03-1995 in which it has been Neutral Citation No. ( 2025:JHHC:17449-DB ) 2 | P a g e stated that on the same day at 8:00PM, the informant and his younger brother after having dinner had gone to sleep. The mother of the informant, all of a sudden, let out a cry of alarm at which he woke up from his sleep and rushed out to the courtyard where he saw his mother, Niren Sah and Anil Sah as well as his father and grandparents. It has been alleged that the father of the informant was assaulting his mother with a knife, while his uncle was holding his mother. Niren Sah was inflicting bodily injury upon the mother of the informant. It has been stated that, in the meantime, Kali Sah, the neighbour of the informant came and forbade the accused persons to commit assault. Some of the accused persons had come and committed the murder of the mother of the informant. The reason for the occurrence is that the father of the informant had solemnized another marriage with one Malti. Based on the aforesaid allegations, Rajmahal P.S. Case No. 79/95 was instituted under Section 302/34 IPC. On completion of investigation, chargesheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S.C. No. 180/1998. Charge was framed against the accused under Section 302/34 IPC, which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as seven witnesses in support of its case: P.W.1 Rajendra Kumar Sah has stated that the incident had occurred at 8:00PM on 09-03-1995. He was in his house. After one hour of the incident, his nephew Haradhan had come to his house along with Haripado Sah. His nephew Haradhan Sah had disclosed that his mother was murdered by his father Lorik Sah, his stepmother Malti Devi Sah, Jyotish Sah, Kalawati, Subhash Sah, Niren Sah and Anil Sah by means of knife, arrow Neutral Citation No. ( 2025:JHHC:17449-DB ) 3 | P a g e etc. At this information, he had gone to the house of his deceased sister with his brother Om Prakash Sah and Haradhan Sah. There were several marks of violence on the body of his deceased sister. No inmates of the house were present at the place of occurrence. The accused Lorik Sah used to demand a buffalo and a bicycle as dowry for which a case was lodged by the deceased and Lorik Sah had to remain in jail. Later on, Lorik Sah was released on account of a compromise between the parties. In cross-examination, he has deposed that he had reached the place of occurrence at 8:00PM when only the dead body of his sister was found lying. P.W.2 Padma Devi is the neighbour of the deceased Namita Devi who has stated that around 8:00-8:30PM, there was a quarrel between Namita and Jyotish Sah, Kalawati Sah, Lorik Sah, Malti Devi and Ganesh Sah. Lorik Sah had a sickle and Malti had caught hold of Namita. Namita was felled on the ground by the accused persons, while the others were inflicting injuries upon her. She was threatened by the accused persons of murder if she becomes a witness. She had not seen Niren Sah at the place of occurrence. In cross-examination, she has deposed that about 50 persons had arrived at the place of occurrence and at that point of time, Namita was alive. Before he had reached the place of occurrence, 2-3 villagers had already assembled. P.W.3 Om Prakash Sah is the brother of the deceased who has stated that his sister was married to Lorik Sah and she remained peacefully at her matrimonial house for 5 years. Thereafter, the in-laws of his sister started demanding dowry and on non-fulfillment of the said demand, his sister was tortured and ousted from her matrimonial house. Lorik Sah had thereafter solemnized a second marriage with Malti Devi. This resulted in institution of a case against the accused persons Neutral Citation No. ( 2025:JHHC:17449-DB ) 4 | P a g e which was later on compromised. His sister was thereafter brought back to his house by Lorik Sah and she was properly kept by him for 5 years. His sister was murdered by Lorik Sah, Anil Sah, Jyotish Sah, Malti Devi, Kalawati Devi, Niren Sah and Subhash Sah. The information about the murder was given to him by Kali Sah at 9:00PM. He had gone to the place of occurrence when he came to know that all the accused persons have committed the murder of his sister. In cross-examination, he has deposed that his statement was recorded by the Police in the Police Station in which he had signed. On the basis of his statement, Police had gone to Khuthari village. His nephew Nand Dulal and Haradhan were in the house. The Police had recorded the statement of Haradhan. No article was seized by the Police in his presence. Anil Sah and his family members were not present in their house. P.W.4 Chaman Sah has stated that he was in his house when on hearing a cry of alarm he had gone to the house of Lorik where he saw the wife of Lorik lying on the ground dead and no family members were present. His statement was not recorded by the Police. He has stated that Lorik Sah had solemnized a second marriage with Malti Devi and they had children out of the said wedlock. This was the reason for the quarrel between Lorik Sah and his first wife Namita. In cross-examination, he has deposed that there are 40 houses in between his house and the house of Lorik Sah. P.W.5 Chunnu Sah did not support the case of the prosecution and he was declared hostile by the prosecution. P.W.6 Haradhan Sah is the informant and the son of the deceased who has stated that after having dinner he was sleeping along with his younger brother. When his mother screamed, he got up from his sleep and rushed to the courtyard where he saw his father Lorik Sah assaulting his mother while Anil Sah had Neutral Citation No. ( 2025:JHHC:17449-DB ) 5 | P a g e caught hold of her. His uncle Niren Sah was inflicting injuries upon his mother. His grandparents and stepmother had also caught hold of his mother and were assaulting her. When he raised a cry of alarm, his neighbor Kali Sah came running and tried to stop the assault but he was reprimanded and threatened by his father. All the accused persons thereafter fled away. Later on, Police had come and his statement was recorded. He has proved his signature on the fardbeyan which has been marked as Exhibit-1. In cross-examination, he has deposed that initially the name of Subhash Chandra Sah was taken in the case as the Police had wanted his name to be included. Subhash Chandra Sah was not present at the place of occurrence when the incident had taken place. On the night of the occurrence, he had not gone to inform about the incident to his maternal uncles. His father was assaulting his mother with both hands. He had assaulted his wife with a knife on back and had injured her head with a sword. P.W.7 Dr Satish Kumar Sinha was posted as a Medical Officer at Referral Hospital, Rajmahal and on 10-03-1995, he had conducted autopsy on the dead body of Namita Devi and had found the following: (i) Incised wound measuring 5’ x 1’ x bone deep in right chick extending from right angle of mouth to the angle of mendible. (ii) Incised penetrating wound measuring 4” x 1½” x deep upto thoracic cavity cutting the Easterman. (iii) Incised penetrating wound measuring 1” x ½” x deep over right shoulder. (iv) Incised wound over right wrist cutting Neutral Citation No. ( 2025:JHHC:17449-DB ) 6 | P a g e both lower end of radius ulna and only attached by tag of skin. (v) Incised penetrating wound ½” x 1”x bone deep over left scapula in the back. (vi) Incised penetrating wound measuring 2” x ½” x 1” on the back just left two mid line at four level. (vii) Incised penetrating wound measuring ½”x 1” x 1” thoracic cavity just right to midline. (viii) Incised penetrating wound measuring 1½” x ½” x thoracic cavity below injury no. VIII. (ix) Incised wound measuring 4” x 1” x bone deep in right side of mid line at ten levels. The cause of death was opined to be due to hemorrhage and shock as a result of the above noted injuries. He has proved the post-mortem report which has been marked as Exhibit-2. 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in committing the murder of Namita Devi. 6. It has been submitted by Mr. A. K. Kashyap, learned senior counsel for the appellants that P.W.2 and P.W.6 claim themselves to be the eyewitnesses, but their evidence is at variance with respect to the involvement of the appellant in committing the murder of Namita Devi. He has submitted that P.W.1 had arrived at the place of occurrence on being informed about the incident by P.W.6 on the same night, but P.W.6 has categorically denied of having informed his maternal uncles immediately after the incident had taken place. Learned senior counsel adds that Kali Sah was an important witness of the Neutral Citation No. ( 2025:JHHC:17449-DB ) 7 | P a g e prosecution, but he has not been examined. Even the Investigating Officer has not been examined which has caused prejudice to the defence. P.W.6 is a child witness whose testimony is the fulcrum of the prosecution case and his evidence appears to be tutored and such evidence should have been considered by the learned trial court with circumspection. 7. Mr. Manoj Kr. Mishra, learned A.P.P. has submitted that there are two eyewitnesses to the incident being P.W.2 and P.W.6 and the manner of implication attributed by them to the appellants is supported by the post-mortem report. The motive for committing the murder is also apparent, especially on going through the evidence of P.W.3. 8. We have heard the learned counsel for the respective sides and have also perused the trial court records. 9. As per the prosecution case based upon the fardbeyan of P.W.6, the mother of P.W.6 was brutally assaulted by the accused persons including the present appellants which resulted in her death. The cause of the incident seems to be the second marriage of Lorik Sah, the father of the informant with Malti Devi which prompted Namita Devi, the first wife of Lorik Sah to institute a case which resulted in Lorik Sah remaining in custody till the time a compromise was effected. The evidence of P.W.6 was recorded on 04-11-2003 when his age was 18, while the incident had taken place on 10-03-1995 which would mean that P.W.6 was aged about 10 years at the time of the occurrence. The fardbeyan of the informant further reveals that the same was recorded in the presence of the villagers Kali Sah and Chaman Sah who also are the signatories to the fardbeyan of the informant. The same was recorded at 12:30AM. Chaman Sah has been examined as P.W.4 who clearly is not an eyewitness as he had reached the place of occurrence after the incident had occurred. P.W.4 has not stated about the presence of Kali Sah, Neutral Citation No. ( 2025:JHHC:17449-DB ) 8 | P a g e though as per P.W.6, on raising an alarm, it was Kali Sah who had come and had tried to persuade the accused persons not to commit assault upon Namita Devi. Kali Sah has not been examined by the prosecution. The evidence of P.W.3, who is a maternal uncle of the informant reveals about getting information of the murder from Kali Sah at 9:00PM after which he had rushed to the place of occurrence where he had heard about the incident. If at all what has been stated by P.W.3 is true, he must have been present when the fardbeyan was recorded but no mention of his presence appears in the fardbeyan. The falsity of the assertion made by P.W.3 would further be evident from the fact that P.W.6 has stated that he had not gone to the house of his maternal uncles at night to inform about the incident which also falsifies the evidence of P.W.1, who is another maternal uncle of P.W.6 and according to him he had gone to the place of occurrence with P.W.3 and P.W.6. 10. On a perusal of the evidence of P.W.6, it transpires that both the appellants had participated in the assault upon Namita Devi. The manner of implication of all the members of the family of his father in participating in the assault as depicted by P.W.6 would indicate a semblance of truth in the submission of the learned senior counsel for the appellant that P.W.6 is a tutored witness. P.W.6, in his cross-examination, has stated that his father Lorik Shah was armed with a knife and a sword and he was assaulting Namita Devi with both hands. No doubt it is true that the assault committed upon Namita Devi was brutal as several incised and piercing wounds were found on her person and such brutal and indiscriminate assault has been attributed by P.W.6 to Lorik Sah. The evidence of P.W.6 has been diluted by the testimony of P.W.2 who also is an eyewitness and who has not named either of the appellants. In fact, P.W.2 is categorical in her evidence of the absence of the appellant no. 1 at the place Neutral Citation No. ( 2025:JHHC:17449-DB ) 9 | P a g e of occurrence. This witness has not been declared hostile by the prosecution. It also seems that no incriminating articles were recovered from the possession of appellant. The Investigating Officer has not been examined by the prosecution. The evidence of P.W.6 cannot be said to be neither trustworthy nor does it inspire confidence to rely on the same, especially in the backdrop of the circumstances we have noted above. 11. Consequent to the above, we hereby set aside the judgment and order of conviction and sentence dated 29-05-2010 (sentence passed on 31-05-2010) passed by Sri Vishwa Nath Sahu, learned Additional District & Sessions Judge-I, Rajmahal in S.C. No. 180/1998 12. This appeal is allowed. 13. Since the appellant no. 1 is in custody, he is directed to be released immediately and forthwith, if not wanted in any other case. So far as the appellant no. 2 is concerned, since he is on bail, he is discharged from the liability of his bail bond. 14. Pending I.A.s, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (AMBUJ NATH, J.) Jharkhand High Court, Ranchi Dated the 1st Day of July, 2025 Preet/N.A.F.R.