1 Criminal Appeal (DB) No. 77 of 1998 (R) Neutral Citation No. ( 2025:JHHC:18169-DB ) IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No. 77 of 1998 (R) Chandrapal Pathak, son of Chedi Pathak, resident of village: Kulu, PS: Sadar Chatra, Dist: Chatra ... Appellant -Versus- The State of Bihar now Jharkhand ...Respondent CORAM :- HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant : Mr. B.K. Dubey, Advocate For the Respondent : Mrs. Priya Shrestha, Spl.P.P. … CAV on: 05/02/2025 Pronounced on: 01/07/2025 Per, R.Mukhopadhyay, J. Heard Mr. B.K. Dubey, learned counsel for the appellant and Mrs. Priya Shrestha, learned Spl.P.P. 2. This appeal is directed against the judgment of conviction and order of sentence dated 28.03.98 and 31.03.98 respectively passed by Sri Dilkeshwar Pandey, the learned 2nd Addl. Sessions Judge, Chatra in Sessions Trial No. 300/95| 72/97, whereby and whereunder, the appellant has been convicted for the offence under section 302/34 of the Indian Penal Code and has been sentenced to undergo RI for life. 3. The prosecution case arises out of the fardbeyan of Sharda Devi recorded on 23.01.95 in which it has been stated that on the same day at 6:00 a.m. she was preparing tea in her house when her relatives Devendra Pathak and Arun Pathak took away grandson of the informant namely Sudhanshu Kumar Pandey @ Pappu to the field to defecate. When even after 1½ - 2 hours the grandson of the informant did not return she searched nearby places but he could not be found. The informant had thereafter gone to the house of Devendra who disclosed that Pappu had gone to defecate with Arun about 500 yards East from his house. Devendra had also disclosed that Arun had asked him to go to his house and he and Pappu are coming. It has been alleged that the informant along with his grandson Ajay and nephew Devendra went near the Ahar where she saw her grandson Sudhanshu lying in a pool of blood and writhing. On being asked Sudhanshu had disclosed that Chandrapal had 2 Criminal Appeal (DB) No. 77 of 1998 (R) caught hold of him and Arun had assaulted him with an axe and both have fled away. When the informant raised a cry on alarm the villagers had assembled who took Pappu to Sadar Hospital, Chatra where in course of treatment he died. Based on the aforesaid allegations Sadar PS Case No.04/95 was instituted under sections 302/34 of the Indian Penal Code. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 300/95. Charge was framed against the accused under sections 302/34 of the Indian Penal Code which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as twelve witnesses in support of its case. 5. PW-1 Kedarnath Pathak has stated that after sunset he had gone towards the Eastern side of the village to answer the call of nature and near the Ahar he had seen Chandrapal Pathak, Arun Pathak, Devendra Pathak and Sudhanshu Pandey @ Pappu basking by the fire. Chandrapal had an axe with him. He thereafter left to defecate. After he returned back to his house the grandmother of Sudhanshu disclosed that Devendra had taken away Pappu and he has not yet returned. He had stated to the grandmother that he had seen all four persons basking by fire near the Ahar. The grandmother of Pappu went to the said place and came shouting that Pappu has been murdered by Arun. He rushed to the said spot followed by 5-7 persons. The neck of Pappu was cut with an axe. He was alive at that point of time and had disclosed that Chandrapal had caught hold of his hand while Arun had assaulted him with an axe. Pappu was carried home and thereafter taken to Chatra Hospital where in the night he died. In cross-examination he has deposed that the informant Sharda Devi is his sister-in-law. His statement was recorded by the police. Pappu was not being able to sit or walk. 6. PW-2 Ramnarayan Pathak has stated that on 23.01.95 he was at Churihara mohalla when Awadh Kishore Pathak came to him and disclosed that Pappu has been assaulted with an axe while Chandrapal had caught hold of him. On such disclosure he had gone to Chatra Hospital where the Doctors had disclosed that the medical condition of Pappu was very serious. He thereafter went inside the ward where he saw saline being administered. When he called Pappu by his name after sometime Pappu opened his eyes and 3 Criminal Appeal (DB) No. 77 of 1998 (R) disclosed that Chandrapal had caught hold of him while Arun had assaulted him with an axe. The condition of Pappu deteriorated and he died. He has proved his signature on the inquest report which has been marked as Ext.1. In cross-examination he has deposed that when he had gone near the bed where Pappu was lying only one staff of the hospital was present. The others who are present were his mother, Awadh Kishore Pathak, Sukhdeo Pathak, his aunt and others. He had a conversation with Pappu for one minute and after half an hour Pappu was declared dead. 7. PW-3 Awadh Kishore Pathak has stated that on 23.01.95 at 06:00-06:30 p.m. he was in his house when he heard commotion coming from the South- eastern side of his house and when he rushed to the said place he found Pappu lying in a pool of blood who had disclosed that Chandrapal had caught hold of him while Arun Kumar Pathak had given him an axe blow. When he had gone to the place of occurrence he had seen Chandrapal Pathak and Arun Kumar Pathak fleeing away. Pappu was carried to his house on a cot and after ten minutes was taken to Chatra Hospital where he died in course of treatment. In cross-examination he has deposed that he had seen Chandrapal and Arun fleeing away from a distance of 100 yards. The persons who had reached the place of occurrence prior to him were his mother Manga Devi, aunt Sharda Devi, Kedarnath Pathak, Ram Kishan Pathak, Binod Kumar Pathak, Ajay Kumar Pathak and others. When he had reached the place of occurrence Pappu was found lying on the ground in a pool of blood. Pappu was saying that Chandrapal had caught hold of him and Arun had assaulted him with an axe. 8. PW-4 Ajay Kumar Pathak has stated that on 23.01.95 he was in his house along with his grandmother and at about 06:00 p.m. Devendra and Arun had entered and taken away his cousin Pappu. When Pappu did not return he and his grandmother went in search of him. When they went towards the Ahar they found Pappu lying in a pool of blood. Pappu was alive at that time and he had disclosed that Chandrapal had caught hold of him while Arun had assaulted him with a tangi. On hearing a cry of alarm the villagers had assembled and Pappu was taken on a cot to his house and thereafter to the hospital where he died. In cross-examination he has deposed that for the purpose of education he is staying at his grandmother’s place for the last 4-5 years. His grandmother had gone in search of Pappu to the house of Devendra and thereafter she had screamed. 4 Criminal Appeal (DB) No. 77 of 1998 (R) 9. PW-5 Ram Kishore Pathak has stated that on the date of the incident he was on duty with the Doctor and at 05:30 p.m. he left for Kullu and reached his house at 06:00 p.m. After 10-15 minutes he heard the sound of wailing and when he came out he saw the grandmother of Pappu crying. She had disclosed that Arun had committed assault upon Pappu with an axe. She had taken the name of Arun only. He and Ajay had thereafter gone to the Ahar with a cot where he found Pappu lying on the ground. There were 6-7 persons present and amongst them were his father Kedarnath Pathak and brother Awadh Kishore Pathak and on being asked Pappu had disclosed that Arun had committed assault upon him. Pappu was taken to Chatra Hospital and in the morning he came to know that Pappu has expired. In cross-examination he has deposed that Pappu was fully conscious and he had taken the name of Arun of committing such assault. 10. PW-6 Binod Kumar Pathak has stated that on 23.01.95 he after closing his shop at Chatra returned to his house at Kullu at 06:45 p.m. when on the way he met Pappu being carried by others on a cot. Pappu was writhing in pain. He had no conversation with Pappu. He was asked to bring a rickshaw but before he could arrange the same Pappu was already taken to the hospital. In cross-examination he has deposed that the house of the grandmother of Pappu is adjacent to his house. 11. PW-7 Dr. Shambhu Nath Singh was posted as a Civil Assistant Surgeon in Sub Divisional Hospital, Chatra and on 24.01.95 he had conducted autopsy on the dead body of Sudhanshu Kumar Pandey @ Pappu and had found the following: 2. (i) Incised wound over left temporal area extending up to left side of neck touching angle of left shoulder involving lower part of left ear. Pinna was cut into two pieces lower small and upper long. Shape of wound was spindle shaped. Size of wound 4” long 2” wide at centre and it was survibe….vertebrae deep. It was placed tightly obliquely. Margin and base of wound was reddish in colour caused with dry clotted blood. Structures involved were left sterro mastoid muscle, left carotid vessels and nerves. Transverse process of left side first survicle vertebra was cut. Only this one injury was found. 3. There was other post-mortem findings. All internal viscera’s were pale and all chambers of heart were empty. Stomach contained semi digested food particles.” The cause of death was opined to be due to haemorrhage and shock resulting from the above said injuries, which were caused by sharp-edged heavy weapon such as Tangi. The post-mortem report has been marked as Ext.2. 5 Criminal Appeal (DB) No. 77 of 1998 (R) 12. PW-8 Tribhuban Pandey is the father of the deceased who has stated that on the date of occurrence Pappu was at Kullu with his grandmother. He was at Pandedih and on 23.01.95 in the night Sukhdeo Pathak had come and disclosed about the incident to him and on getting such information he had gone to Chatra Hospital where he met his mother-in-law Sharda Devi and Ram Narayan Pathak who disclosed that his son is now no more. Both had disclosed that Devendra and Arun had taken away Pappu from his house after which Chandrapal had caught him and Arun had assaulted him with an axe which resulted in his death. In cross-examination he has deposed that his statement was recorded by the police at 1:00 a.m. 13. PW-9 Sukhdeo Pathak has stated that on 23.01.95 at 6:00 p.m. he was returning from village Kharik to his house at Kullu and he had seen Devendra Pathak, Pappu Pandey and Arun Pathak going towards the Ahar. When he asked Pappu as to where he was going in the evening he replied that he was going to defecate. Pappu was his nephew. He thereafter returned home and at 07:00 p.m. he heard some commotion and when he came out of his house his uncle Kedarnath Pathak came to his house in a distressed state and disclosed that Pappu has been assaulted by Arun with an axe. He thereafter rushed to the house of Badri Narayan Pathak where he saw an assemblage of people and Pappu was breathing heavily. There was blood all around. When asked by him Pappu had disclosed about the assault committed by Arun. He wanted to say something else but it was not audible. In course of treatment Pappu died in the hospital. In cross-examination he has deposed that after Pappu was admitted in the hospital he had gone to Pandedih to inform his father on a cycle and returned back to the hospital with the father of Pappu in two separate bi-cycles. The police had recorded his statement. 14. PW-10 Sharda Devi is the informant who has stated that her grandson Pappu had come to Chatra college from Pandedih and after attending college he had come to her place. She was making tea when Devendra Pathak and Arun Pathak had come and took away Pappu on the pretext of going to defecate. After preparing tea and snacks she started searching for Pappu and Devendra Pathak had disclosed that Arun, Chandrapal and Pappu had gone towards the Ahar. She along with Devendra and her other grandson Ajay went towards the Ahar where she saw Pappu lying on the ground in an injured condition. Pappu had disclosed that Chandrapal had caught hold of him while 6 Criminal Appeal (DB) No. 77 of 1998 (R) Arun struck him with an axe. When she raised a cry of alarm people arrived and Pappu was taken on a cot to his house and thereafter to Chatra Hospital and in course of treatment Pappu died. The police had come and her fardbeyan was recorded. In cross-examination she has deposed that it was Pappu who had told her that Devendra and Arun are taking him out and he is going with them. The outer varanda is not visible from the place where she was making tea. She had heard the voice of Devendra and Arun when they had called out Pappu. It is incorrect to say that there was a land dispute between both the sides. 15. PW-11 Jainandan Pathak has been tendered by the prosecution. 16. PW-12 Gopinath Tiwari was posted at Sadar police station and the fardbeyan of Sharda Devi was recorded in his presence. He has proved the fardbeyan which has been marked as Ext.3. Formal FIR has been proved and marked as Ext.4. After taking over investigation of the case he had recorded the restatement of the informant and had prepared inquest report. The inquest report has already been marked as Ext.1. He has proved his hand writing and signature on the inquest report which has been marked as Ext.5. He had recorded the statements of the witnesses and had also inspected the place of occurrence which is on the Eastern side of village Kullu about half a km. distance in an unmetalled road. The place of occurrence is lonely. At the place of occurrence large amount of blood was found. In cross-examination he has deposed that he had not recorded the statement of the Doctor who had treated the deceased. Kedarnath Pathak had not stated that four persons were basking by the fire. The witness Awadh Kishore Pathak had not stated before him that when he rushed to the place of occurrence he had seen Chandrapal Pathak and Arun Kumar Pathak fleeing away. 17. The statement of the accused was recorded under section 313 of the Code of Criminal Procedure in which he has denied his complicity in the commission of murder of Pappu. 18. The defence has examined six witnesses in support of its case. 19. DW-1 Vishwanath Prasad Singh has proved medical certificate issued by Dr. Ashok Kumar of Raniganj Hospital which has been marked as Ext.A. The signature of Chandrapal Pathak has been attested by Dr. Ashok Kumar which has been marked as Ext.B. In cross-examination he has deposed that the medical certificate was not written in his presence. 7 Criminal Appeal (DB) No. 77 of 1998 (R) 20. DW-2 Kedar Mishra has proved the complaint petition in Complaint Case No. 14/95 which has been marked as Ext.C. In cross-examination he has deposed that he does not have any knowledge about the case and counter-case. 21. DW-3 Rajdeo Ganjhu has stated that there was no dispute between Sudhanshu Pandey and Arun Pathak and Chandrapal Pathak. In cross-examination he has deposed that he did not have any friendship with Sudhanshu. 22. DW-4 Dina Thakur has stated that there was never any quarrel between Arun Pathak and Chandrapal Pathak with Sudhanshu Pandey. In cross-examination he has stated that he does not know as to who had committed the murder of Sudhanshu Pandey. He does not know Sudhanshu. 23. DW-5 Ravindra Mishra has proved the School Leaving Certificate of Arun Kumar Pathak which has been marked as Ext.C. 24. DW-6 Karam Bhuiyan has stated that never was any enmity between Chandrapal Pathak and Arun Pathak with Pappu Pandey. In cross-examination he has deposed that he had never seen Pappu with the accused persons. 25. It has been submitted by Mr. B.K. Dubey, learned counsel for the appellant that PW-5 and PW-9 have demolished the case of the prosecution. The prosecution has failed to show that there was a common intention between the appellant and the other accused persons in committing the murder of Pappu Pandey. In fact, the evidence of the prosecution is conflicting in nature. One of the key witness was Devendra Pathak but he has not been examined by the prosecution. 26. Mrs. Priya Shrestha, learned Spl.P.P. has submitted that PW-1, PW-2, PW-3 and PW-4 have supported the case of the prosecution and has specified the role played by the appellant of catching hold of Pappu Pandey while Arun Pathak had assaulted him with an axe. All these witnesses have stated about the oral dying declaration of Pappu Pandey in which the name of the appellant has figured. 27. We have heard the learned counsel for the respective sides and have also perused the trial Court record. 28. Sudhanshu Kumar Pandey @ Pappu had returned from college in the evening to the house of the informant, his grandmother and while the informant was preparing tea and snacks Devendra Pathak and Arun Kumar Pathak had called Pappu and Pappu had accompanied them to the ground. 8 Criminal Appeal (DB) No. 77 of 1998 (R) When her grandson did not return even after a lapse of considerable time the informant started searching for him and after having confronted Devendra Pathak she had gone near the Ahar of the village where she saw Pappu lying in an injured condition with a deep gash on his neck. Pappu had disclosed that the appellant had caught hold of him while Arun Pathak had inflicted an axe blow on his neck. Pappu Pandey was taken to the hospital but in course of treatment he died. 29. The entire case of the prosecution is built around the oral dying declaration of the deceased. The appellant was not one of the persons who had come to call Pappu but it was Devendra Pathak and Arun Pathak. Devendra Pathak had disclosed to the informant that Arun and Pappu had gone towards the Ahar after which Pappu was discovered lying near the Ahar. Surprisingly Devendra Pathak has not been examined by the prosecution. 30. The deceased had disclosed about the involvement of the appellant both in the place where he was lying as well as in the hospital where he ultimately died during treatment as per the evidence of PW-1, PW-2, PW-3, PW-4 and PW-10. The deceased had suffered one injury on his neck with an axe as per the post-mortem report and died after a few hours. This would indicate the severity of the assault. All the witnesses have uniformly stated that the deceased was lying in a pool of blood and the oozing of blood continued up to his house and thereafter to the hospital. The prosecution has failed to address the issue as to whether in case of loss of so much of blood apart from the injury on the neck the deceased could have been in a position to speak. The autopsy report provides the answer as in his cross-examination the Doctor conducting the post-mortem, PW-7 has stated that the entire body was devoid of any blood. He has also opined that if 25% of blood is taken out from the body a person may go into a shock. This would rule out the possibility of the deceased giving an oral dying declaration. PW-5 and PW-9 have given a different version to the effect that the oral dying declaration of Pappu names only Arun Kumar Pathak. In the backdrop of the conflicting evidence of PW- 1, PW-2, PW-3, PW-4 and PW-10 on one side and PW-5 and PW-9 on the other side and the evidence of PW-7, the oral dying declaration becomes vulnerable and cannot at all be relied upon for the purposes of conviction of the appellant. Admittedly, there are no eye-witnesses to the occurrence and the clinching evidence seems to be that of PW-9 who was the only person to have seen Pappu going towards the Ahar with Devendra Pathak and Arun Kumar Pathak and he had also conversed with Pappu who had assured him 9 Criminal Appeal (DB) No. 77 of 1998 (R) that he will return home shortly. The evidence of PW-9 does not indicate the presence of the appellant with Pappu. The only circumstance therefore is the oral dying declaration of Pappu Pandey which we have discarded doubting its veracity for the reasons mentioned hereinabove. The learned trial Court has not conducted an in-depth analysis of the evidence of the witnesses while recording the findings and consequently, we set aside the judgment of conviction and order of sentence dated 28.03.98 and 31.03.98 respectively passed by Sri Dilkeshwar Pandey, the learned 2nd Addl. Sessions Judge, Chatra in Sessions Trial No. 300/95| 72/97. 31. This appeal is allowed. 32. Since the appellant is on bail he is discharged from the liability of his bail bond. 33. Pending IA, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi, Dated:01/07 /2025 S.B.