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2002 DIGILAW 902 (JHR)

Kandu Manjhi v. State of Bihar

2002-08-20

VIKRAMADITYA PRASAD, VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.- This appeal has been preferred by the appellants against the judgment and order dated 10.6.1996 and 11.6.1996 respectively passed by Shri G. K. Verma, 2nd Additional Sessions Judge, Jamshedpur in Sessions Trial No. 179 of 1994 whereby and whereunder the appellants were found guilty for the offence punishable under Section 302/34 of the I.P.C. and they were convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext.2) of P.W.2, Jamuna Manjhi, the informant, recorded by P.W.9, P.B. Majumdar, A.S.I. Patmada P.S. on 24.7.1993 at 18.30 hours regarding the occurrence which is said to have been taken place on that very day at 12.30 hours in Village Telidih, P.S. Patmada, District-East Singhbhum and the said P.S. is at a distance of 29 kilometres from the place of occurrence. 3. The prosecution case, in brief, is that Jamuna Manjhi, the husband of the informant and deceased of this case along with his son P.W.6, Indu Manjhi were ploughing his land at 12.30 hours on the day of the occurrence and P.W.2, the informant, the widow of the deceased, was uprooting the cattle feed plant in the said field. It is alleged that the appellant, Kandu Manjhi and his younger son Randhu Manjhi @ Sandhu Manjhi came there from the adjoining maize land of the informant, armed with Lathi and bow and arrow respectively along with the absconding accused, Tota Manjhi armed with sword and they are the agnates of the deceased and appellant, Kandu Manjhi assaulted the deceased by Lathi and absconding accused Tota Manjhi assaulted him by sword. The informant, (P.W.2) and her son Indu Manjhi (P.W.6) were chased by appellant Sandhu Manjhi armed with bow and arrow and they fled away towards the village and when they returned with the co-villagers, they found Jamuna Manjhi, the deceased of this case, fallen on the ground in the said field in injured state and both the appellants along with absconding accused Tota Manjhi were seen fleeing away from the said field. The genesis and motive for the occurrence is that the appellants used to allege that the informant is a witch and the wife of absconding accused Tota Manjhi is ill due to ghost as a result of witchcraft practiced by the informant and for that they have also a quarrel and assaulted her and her deceased husband prior to the occurrence. P.W.5, Ganesh Majhi and P.w.7, Thakur Manjhi have been alleged to have witnessed the occurrence in question. 4. The appellants had pleaded not guilty to the charge levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. 5. The prosecution had examined P.W.2, the informant and widow of the deceased, P.WA and 6, daughter and son of the deceased respectively as well as P.W.5, the nephew of the deceased besides P.W.10, the medical witness who has conducted the post mortem examination on the dead body of the deceased and the post mortem report is Exhibit-4, Investigating Officers are P.Ws.8 and 9 and also P.Ws.1, 3 and 7 who have turned hostile in this case. Exhibit-1 is the seizure list regarding the recovery and seizure of the sword, bow and arrow from the house of the appellant and Exhibit-3 is the inquest report regarding the deceased prepared by P.W.9. 6. In view of the evidence oral and documentary on the record the learned court below found both the appellants guilty for the offence under Section 302/34 of the I.P.C. and convicted and sentenced them as stated above. 7. It has been submitted by the learned counsel for the appellants that the impugned judgment of the court below is bad in law and is against the weight of the evidence on the record and P.Ws. 2, 4, 6 and 5 are related partisan witnesses in this case and the learned Court below has erred in relying upon their evidence in view of existing enmity between the parties. It has also been contended that no independent witnesses of the alleged occurrence has come to support the prosecution case. 2, 4, 6 and 5 are related partisan witnesses in this case and the learned Court below has erred in relying upon their evidence in view of existing enmity between the parties. It has also been contended that no independent witnesses of the alleged occurrence has come to support the prosecution case. It has also been submitted that there is no allegation of any overt act against the appellant, Sandhu Manjhi in the occurrence in question and he has not at all participated in assaulting the deceased as per the prosecution case and it cannot be said that appellant Sandhu Manjhi had any common intention with appellant Kandu Manjhi and absconding accused, Tota Manjhi for causing death of the deceased. In this view of the matter, the conviction of appellant Sandhu Manjhi is not only illegal but perverse. Lastly it has been contended that the prosecution case is replete with improbabilities and material contradictions which totally belie the manner as well as genesis of the alleged occurrence. 8. Learned A.P.P. has submitted that ante mortem injuries caused by Lath; and sword on the person of the deceased have been found by P.W.10, the medical witness and the injury on the forehead of the deceased is grievous in nature causing his death and P.Ws. 2, 6, 5 and 4 have materially corroborated the prosecution case as alleged in the F.I.R. and the sword along with bow and arrow have also been recovered from the house of the appellant soon after the occurrence. There is also evidence on the record to prove the motive and genesis of the occurrence and the learned Court below after meticulously scrutinizing the evidence on the record has rightly found the appellants guilty and convicted them. 9. It will admit of no doubt that P.W.8, Dr. Lalan Choudhary, who has conducted the post mortem examination has found the following ante mortem injury on the dead body of the deceased:- (i) Incised wound of size 3cm x 1/2cm x 1 cm over the lateral aspect of right elbow. (ii) Incised wound of size 3cm x 1/2cm over the lateral aspect of right elbow, 3cm above the injury no. (i). (iii) Lacerated wound of size 3cm x 1 1/2cm x muscle deep over right side of forehead. (iv) Abrasion of size 13cm x 3cm over lateral aspect of right arm. (ii) Incised wound of size 3cm x 1/2cm over the lateral aspect of right elbow, 3cm above the injury no. (i). (iii) Lacerated wound of size 3cm x 1 1/2cm x muscle deep over right side of forehead. (iv) Abrasion of size 13cm x 3cm over lateral aspect of right arm. (v) Abrasion of size 2cm x 2cm over lateral aspect of left Poplitial region (back of knee). The medical witness has further deposed that on internal examination massive contusion was find over muscles and vessels over left shoulder, arm, forearm and dorsem of wrist of the deceased. In para-8 of the examination, he has deposed that he did not find any external injury to correspondence with the internal injury except in the case of internal head injury which was corresponding to an external head injury. This evidence of P.W.8 stand corroborated as per Exhibit-4, the post mortem report in which it has been stated on dissection of skull that haemorrhage over right hemisphere of brain was found and right hemisphere was highly congested. The medical witness has also deposed that cause of death was due to haemorrhage and shock but any of the above injuries was not alone sufficient to cause death in ordinary course of nature. His further evidence is to the effect that incised wounds are possible by sword and other injuries are possible by Lathi. In para-7 of the cross-examination, the medical witness has deposed that lacerated wounds on the forehead of the deceased was grievous in nature and the other injuries were simple in nature. Though the nature of the lacerated wound aforesaid has not been mentioned in clear words in the post mortem report (Ext A) to be grievous one. However, the finding of the medical witness on dissection of the dead body of deceased is to the effect that haemorrhage on the right hemisphere of the brain was found and it was hightly congested. In view of evidence of the medical witness, the lacerated wound being grievous in nature appears to have proved fatal causing the death of the deceased. 10. In view of evidence of the medical witness, the lacerated wound being grievous in nature appears to have proved fatal causing the death of the deceased. 10. Genesis and motive for the occurrence in question as averred in the F.I.R. of P.W.2, the informant is that the appellants used to allege that the informant is a witch and the wife of absconding accused, Tota Manjhi is ill due to ghost as a result of witchcraft practised by the informant and for that they have also quarrelled and assaulted her and her deceased husband prior to the occurrence. P.W.2, the informant in para-4 of her examination-in-chief has deposed that the wife of absconding accused, Tota Manjhi always used to remain ill and the appellants were of the view that she is the cause of illness of the wife of absconding accused, Tota Manjhi and appellant Kandu Manjhi used to call her a witch. In para 12 of her examination, she has deposed that the appellants have called her a witch on the day of the occurrence. She also deposed in para-12 of her testimony that there had been quarrel two to three years prior to the occurrence between the appellants and her deceased husband and a case in respect thereof was lodged by her deceased husband against the appellants and absconding accused, Tota Manjhi. P.W.4 in para 4 and P.W.5 in para 5 and 8 respectively have corroborated the testimony of P.W.2 in respect thereof. The tribals in our State are mostly illiterate, ignorant and equally very superstitious and for the reasons best known to them, they believe in the existence of occult force. Several occurrences of assault and murder take place as a result of this superstitions prevalent among the tribals. However, illness of a person has no co-relation with the alleged occult practice or witchcraft which has scientifically been proved still the tribals persist in their view regarding the existence of occult practice and witchcraft. The evidence of P.W.2 read with P.W.5 and 4 clearly established the fact that the appellants had persisted in this wrong belief for assaulting the deceased in this case and as such the evidence of the aforesaid three witnesses clearly establishes the genesis and motive for the appellants. 11. The evidence of P.W.2 read with P.W.5 and 4 clearly established the fact that the appellants had persisted in this wrong belief for assaulting the deceased in this case and as such the evidence of the aforesaid three witnesses clearly establishes the genesis and motive for the appellants. 11. P.W.2, the informant has deposed that at the time of the occurrence, the deceased was ploughing the land and she was uprooting the paddy seedlings and her son, P.W.5, Indu Manjhi was also there. Her evidence further is to the effect that both the appellants along with Tota Manjhi came to the said field and they were armed with Lathi, bow and arrow and sword respectively and they started assaulting the deceased by weapons, they were respectively armed with and the deceased fell on the ground and she along with her son, Indu Manjhi fled away from there out of fear and they returned to the place of occurrence along with Mukhiya, Choukidar and some co-villagers and found the deceased fallen on the ground and the appellants along with Tota Manjhi had by then fled from there. She also deposed that the deceased had sustained injuries on his head and several other places on his person. P'W6, Indu Manjhi has deposed that he was ploughing the land and his father Jugal Manjhi (the deceased of this case) and his mother, the informant, were in the field. He also deposed that his father was assaulted by Lathi and sword and he fell down and blood started oozing from his injuries. He also deposed that he along with the informant attempted to save and rescue the deceased but out of fear they fled away towards the village and again returned to the place of occurrence along with others. P.W6 in para-2 has deposed that he told about the occurrence to P.W.5, Ganesh Manjhi and several other persons in the village P.W5, Ganesh Manjhi has deposed that at the time of the occurrence he was ploughing his land and at that time the deceased along with P.W6 was ploughing the field and he heard quarrel in the field of the deceased. He also deposed that both the appellants along with Tota Manjhi came to the said field of the deceased and they were armed with Lathi, bow and arrow and sword respectively and they have assaulted Jugal Manjhi, the deceased of this case by their respective weapons. He also deposed that the informant and P.W6 came to him in his field and requested him to save the deceased but he directed them to go to the village to call the villagers as he is unable to save the d8ceased. He also deposed that he along with Mukhiya and Choukidar and several other persons of the village came to the field of the informant where he found the deceased fallen on the ground in an injured state. In para-13 of his cross-examination he has deposed that the appellant, Kandu Manjhi and absconding accused, Tota Manjhi have only assaulted the deceased. P.W.4, Dingla Manjhi, the daughter of the deceased has deposed that at the time of occurrence she was collecting cattle feed from the field of P.W.3, Chotu Manjhi and from there she has seen the appellants along with Tota Manjhi assaulting the deceased and they were armed with Lathi, bow and arrow and sword respectively. She has also deposed that the deceased fell down and blood was oozing from his body and the deceased asked for water which was provided by her to him and the deceased also told her to inform Mukhiya and Choukidar. She called Mukhiya and co-villagers. It is admitted fact that P.W.2, is a widow of the deceased and P.W.6 and 4 are the son and daughter respectively of the deceased whereas P.W.5 is the nephew of the deceased and they are close relatives of the deceased. It is the settled principle of law that the evidence of close relatives of the deceased cannot be discarded on the ground of their relationship with the deceased. However, the Court must scrutinize the evidence with care and caution. There is common tendency of outsiders not to get themselves involved in a criminal case and it would be quite natural that no independent witness would come forward to assist the prosecution in a case of murder. However, the Court must scrutinize the evidence with care and caution. There is common tendency of outsiders not to get themselves involved in a criminal case and it would be quite natural that no independent witness would come forward to assist the prosecution in a case of murder. Even with regard to the interested witnesses being close relatives it is the duty pf the Court to separate the truth from falsehood and the chaff from the grain and in view of the close relationship they would not leave out the real assailant and implicate any innocent person and while appreciating the evidence of a relative Witness the approach must be; whether the evidence of the witness read as a whole appears to have a ring of truth. Once the impression regarding a ring of truth is found it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, draw backs and infirmity pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies or trivial matters not touching the core of the case, a hyper techincal approach in perusal of the evidence should be avoided. 12. In view of the evidence referred to above injury caused over right side of the forehead of the deceased is specifically attributed to have been caused by appellant, Kandu Manjhi by lathi and the said lacerated injury is grievous in nature as per para-7 of P.W.10, the medical witness. The medical witness in para-8 has further deposed that he did not find any external injury to correspond with the internal injury except in the case of an internal head injury which was corresponding to external head injury. Ext. 4, the post mortem report shows haemorrhage over right hemisphere of brain and right hemisphere was highly congested and the injury on the forehead, in view of the evidence on the record caused by appellant, Kandu Manjhi has caused the death of the deceased. The evidence of P.Ws. 2, 6, 5 and 4 fully substantiates the prosecution case regarding assault on the deceased by appellant Kandu Manjhi causing injury on the forehead of the deceased. The evidence of P.Ws. 2, 6, 5 and 4 fully substantiates the prosecution case regarding assault on the deceased by appellant Kandu Manjhi causing injury on the forehead of the deceased. All these four witnesses are ocular witnesses of the occurrence and they have occasion to witness the occurrence and they are equally natural and competent witnesses of the occurrence and as such they cannot be said to be interested and partisan witnesses in view of their close relationship and there is no reason for them to leave out the real assailant and falsely implicate the appellant, Kandu Manjhi in this case. Therefore, there is a ring of truth in their evidence and the minor discrepancies of trivial nature occurring in their evidences do not at 3.11 touch and improbabilise the core of the prosecution case. The evidence of aforesaid witnesses in the facts and circumstances of the case, is creditworthy and I see no reason to discard their testimony on scrutiny with care and caution. Therefore, there is no illegality in the impugned judgment regarding the guilt of appellant Kandu Manjhi requiring any interference therein. 13. According to the prosecution case, the informant and her son, Indu Manjhi were chased by appellant, Sandhu Manjhi armed with bow and arrow and they fled away towards the village from the place of occurrence. P.w. 2, 6, 5 and 4 in their evidence on oath have not even whispered regarding the chase by appellant, Sandhu Manjhi who is said to be armed with bow and arrow. However, these witnesses have deposed about assault by appellant, Sandhu Manjhi @ Randhu Manjhi on the deceased by bow and arrow which is totally falsified by the medical witness. RW.1 0, the medical witness has not found any injury on the person of the deceased caused by arrow. RW.10 has specifically deposed in para-7 of his testimony that he did not find any puncture injury on the person of the deceased. He also deposed that puncture injuries are caused by sphere and arrow. Therefore, the evidence of the aforesaid witness of assault on the deceased by appellant, Sandhu Manjhi is an exaggeration and embellishment and their evidences in respect thereof is fit to be brushed aside. He also deposed that puncture injuries are caused by sphere and arrow. Therefore, the evidence of the aforesaid witness of assault on the deceased by appellant, Sandhu Manjhi is an exaggeration and embellishment and their evidences in respect thereof is fit to be brushed aside. This appellant has been found guilty under Section 302/34 I.P.C., Section 34 I.P.C. can only be applied when a criminal act is done by several persons in furtherance of the common intention of all. In this case, there is total absence of any evidence of any overt act by appellant, Sandhu Manjhi in assaulting the deceased which is equally testified by the medical witness. If the prosecution fails to prove the overt act of this appellant, Sandhu Manjhi which could show that he had shared the intention of the other appellants, who inflicted injury on the forehead of the deceased which led to his death or the intention of the absconding accused person it cannot possibly be held that this appellant, Sandhu Manjhi had any common intention and in furtherance of that common intention he has participated in the occurrence. There is no iota of the evidence on the record to show that this appellant has chased the informant and her sol). Viewed thus, his conviction under Section 302/34 appears to be bad and illegal. The recovery of bow and arrow from his house by the I.O. is also not sufficient to base his conviction. In this view of the matter, the conviction of appellant, Sandhu Manjhi for the offence under Section 302/34 I.P.C. is palpably illegal and fit to be set aside. 14. This appeal is partly allowed. The conviction of appellant, Kandu Manjhi under Section 302/34 I.P.C. is hereby affirmed. The conviction of appellant, Sandhu Manjhi is hereby set aside and is acquitted and discharged from the liability of bail bonds. Vikramaditya Prasad, J.-I agree.