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2002 DIGILAW 434 (JHR)

Sardar Liyangi v. State Of Jharkhand

2002-04-02

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2002
JUDGMENT 1. This criminal appeal is against the order of conviction and sentence passed by Shri A.P. Ram. Additional Sessions Judge. Saraikella in S.T. No. 127 of 1991. against the appellants, namely. Sardar Liyangi and Horo Liyangi, whereby and whereunder. the learned trial Court held the appellants guilty of an offence under Section 302/34 of the Indian Penal Code and sentenced them to undergo R.I. for life. 2. The prosecution case in short, is that on 23.7.1990 at about 12 p.m. at village Dubrajpur. PS--Saraikella. District--Singhbhum (West) when the informant Prabati Liyangi was sleeping in her house on a cot and on another cot her husband Dhupu Liyangi (deceased) and youngest son Choko Boyo Liyangi (PW 1) were sleeping and an earthen lamp was burning there and as it was a summer night, the door of the house was left open, both the accused person armed with sword entered into the house. The informant identified them in the light of Dhibri as well as in light of Torch. Those persons gave sword blow on the body of the husband of the informant and thereafter both accused persons threatened her that in case she would disclose their names to the police, they all would be killed and thereafter accused persons fled away. 3. It is stated that due to fear the informant came out of the house after sometime and called neighbour Sukh Mohan Liyangi (PW 4). On alarm other villagers also arrived. The cause of occurrence is that about one year prior to the occurrence accused had plaughed the land of the informant and on protest by her husband the accused had chased him to kill. Subsequently at another time some occurrence had taken place with regard to that land and Sardar Liyangi had constructed a house on the land of informant and on protest by her husband accused Sardar Liyangi had chased him to kill. 4. Due to fear no case was lodged by the informants husband. At the time of occurrence informants other sons were working at Tata. Informant sent message to them in the morning. She was in search of Mukhiya in the day but she could not meet him and thereafter she lodged FIR at about 4.30 p.m. 5. This appeal has been preferred mainly on the following grounds:-- (1) Delay in lodging the FIR. (2) Cause of occurrence not proved. Informant sent message to them in the morning. She was in search of Mukhiya in the day but she could not meet him and thereafter she lodged FIR at about 4.30 p.m. 5. This appeal has been preferred mainly on the following grounds:-- (1) Delay in lodging the FIR. (2) Cause of occurrence not proved. (3) identification not established and (4) witnesses not supporting the case. (5) (1) Delay in lodging the FIR.--It was argued by the learned counsel for the appellants that the delay in lodging the FIR is not at all unexplained. According to the FIR and evidence of the witnesses the occurrence took place in the mid of night. In the morning, the informant sent message to her sons working at Tata and also searched Mukhtya but she could not meet him. Her son (PW 1) came from Tata and everything was told to him which is evident from the evidence of this witness. While appreciating the evidence, one has to keep in mind the situation that prevails in a particular society to which the informant belongs and her being an illiterate Adiuasi. Naturally when some happening happens in such a family, the advice of the male members is expected by them. When viewed in this background, the delay does not appear to be unexplained. 5. (2) Cause of occurrence not proved.--It was argued by the learned counsel for the appellants that no chit of paper has been filed to show that there was a litigation over such land, rather, the evidence is that the litigation was with their Gotiyas with regard to their ancestral land in the village. Therefore, there is no reason as to why the appellants could have caused the death of husband of the informant. PW 6, the informant has stated that her nephew has not taken possession of their land in village. She has also denied that with regard to possession of that land in the village there was any dispute but she also said that Budhu Sundi (nephew) were not on good terms with her husband and they had also threatened her husband. There is a difference between litigation and dispute in village. She has also denied that with regard to possession of that land in the village there was any dispute but she also said that Budhu Sundi (nephew) were not on good terms with her husband and they had also threatened her husband. There is a difference between litigation and dispute in village. It is not always necessary that every dispute would come to the Court but if the witnesses are saying most of them that the possession of the land of the informant was disturbed then definitely there is no reason to disbelieve them, and it will not be proper to say that there was no dispute prior to the occurrence over same land. In the aforesaid circumstances, possibility of causing of death by their Goliyas or nephew is completely ruled out and the doubt that was sought to be created by the defence fails. Even if it is presumed that there was some dispute with regard to village land between the informant and his nephew and they used to threaten, then in that circumstances, in all probability and naturality, those persons i.e. nephew could have been implicated in this case, if at all there was any intention of false implication, but not implicating them and implicating the appellants only does not appeal the reason. Thus the cause of occurrence is there. 5. (3) Identification not established.--Argument was raised by the learned counsel for the appellants that the lamp (Dhibri) has not been produced and there is an evidence that it was a summer mid night, and the door was open, therefore, in such a situation the flame of the lamp even if it is presumed that the lamp was burning, could be extinguished and as it was dark, the identification could not be possible. On perusal of the evidence, it is found that the I.O. when visited the P.O. found a lamp though he did not seize it. The evidence of the informant is that window was shut. If the window was shut and door was open then in that circumstances, the story of blast of air across the room could not have been possible and. therefore, the extinguishing of the flaming of the lamp does not appear to be probable. This mean lamp was burning. The evidence of the informant is that window was shut. If the window was shut and door was open then in that circumstances, the story of blast of air across the room could not have been possible and. therefore, the extinguishing of the flaming of the lamp does not appear to be probable. This mean lamp was burning. It was also argued that the informant has said that she woke up on the cries of her husband, then in that circumstances, the offence was complete before she woke up and, therefore, there was no occasion for her son. Choko to identify the accused. The doctor found two incised wounds on the person of the deceased which could have been caused by sword. The first blow will definitely given such immence pain that the injured will cry out of it and person (s) sleeping in the same room in all probability would awake and in such a situation the person (s) so awakened due to close proximity of time, can see the second blow, if not the first one. Therefore, the aforesaid argument of the appellants has to be rejected. 5. (4) Witnesses not supporting the case,--PW 1 is the son of the deceased, he was allegedly sleeping in the same room on the alleged date of occurrence. PW 6 is the informant and she was also in the said room as per the FIR Ext.- 1. As the occurrence has taken place in night, the presence of these two witnesses in the house cannot be disbelieved and when applying the principles of best evidence available In the circumstances, they are the most competent witnesses for the simple reason that at the time of alleged occurrence their presence in the house cannot be doubted unless proved otherwise. The I.O. (PW 7), has given a description of P.O.. he has stated in para-2 that the house consists of one room. He also found blood stains in cot on which the deceased had allegedly slept. When there is only one room which the I.O. has found then it is quite probable and natural that all the three persons, namely, the deceased, the informant and PW 1 would sleep therein. There is no material contradiction in the evidence of these two witnesses on the manner of occurrence, on the time of occurrence, on the place of occurrence and means of identification. There is no material contradiction in the evidence of these two witnesses on the manner of occurrence, on the time of occurrence, on the place of occurrence and means of identification. Therefore, there is no reason to disbelieve the evidence of these two eye-witnesses whose presence at the P.O. at the alleged time of occurrence has not been doubted. Then arises a question whether any independent witnesses have supported the case. In the FIR Sukh Mohan Liyangi (PW 4) has been shown a witness, who came on hulla first. This witness has been tendered and has been cross-examined by the defence. Generally a witness is tendered from whom it is expected that he will resile from his statement made earlier. It is also seen that when the prosecution is not sure whether the witness will speak the truth or will become hostile, then in that circumstances, also the witnesses are tendered by the prosecution. In such a situation the defence does not cross-examine him on fact because it is also apprehensive, as the witness is non committal to either side. Thus his evidence goes neither way. but as the prosecution has produced such a witness. no adverse inference can be drawn even if he says nothing and it may be presumed that he sticks to his statement made under Section 161. Cr PC but even if this witness has been tendered then also the two eye-witnesses cannot be disbelieved for non-corroboration of their evidence by an independent witness. Thus this argument of the appellants is also rejected. 6. In the result, we do not find any merit in this appeal. Consequently, the appeal fails. The conviction and sentence is confirmed against both the appellants. Accordingly, this appeal is dismissed.