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2003 DIGILAW 1172 (PAT)

Kara Manjhi @ Surendra Manjhi v. State Of Bihar

2003-11-14

B.K.JHA, RAM NANDAN PRASAD

body2003
Judgment RAM NANDAN PRASAD and BALKRISHNA JHA JJ. 1. This appeal arises out of the Judgment and order of conviction passed by the then learned Additional Sessions Judge, 5th, Gaya, in S. Tr. No. 106/97 on 22.5.2000. 2. The abovenamed sole appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. He has further been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for three years. However, sentences awarded to the appellant have been ordered to run concurrently. 3. The incident occurred on 5.10.96 at 4.30 p.m. in Bhuin Toli of Village-Nadra Paliar Tal, P.S. Khizersarai, District-Gaya. At the alleged time while the villagers were singing Jhumar songs on the eve of Jitiya, the appellant armed with pistol came and fired towards female which hit Jirmatiya Devi and also her baby aged five months. Jirmatiya Devi sustained firearm injury on her face, forehead, eyes, throat and chest and fell down floundering on the ground. The baby in her lap also sustained injuries. On the way to Khizersarai Hospital Jirmatiya Devi died. The witnesses, Rameshwar Manjhi PW 2, Ramjitan Manjhi, PW 3 and Binda Manjhi, PW 4 and many villagers witnessed the occurrence of murder committed by the appellant due to previous enmity. 4. On the same day at 8.45 p.m. the informant, Sateyndra Manjhi (PW 7) gave his fardbeyan (Ext 3) before the officer In-charge, Khijersarai Police Station. On the basis of his fardbeyan a formal First Information Report (Ext 4) was drawn up and a case was registered against the appellant under Sections 302/324/307 of the IPC and Section 27 of the Arms Act. The injured, Rajanti Kumari, also later on died. On completion of the investigation the police submitted chargesheet under Section 302/34 of the IPC and Section 27 of the Arms Act. After cognizance of the offence and commitment of the case the accused was put on trial. 5. The accused pleaded innocence and false implication owing to previous enmity. 6. The prosecution led the evidence and ultimately learned Additional Sessions Judge. Gaya, passed the Judgment and order of conviction against the appellant. 7. On behalf of the appellant learned counsel contended that at the relevant hour of the occurrence the appellant was intoxicated and was deprived of self control. 6. The prosecution led the evidence and ultimately learned Additional Sessions Judge. Gaya, passed the Judgment and order of conviction against the appellant. 7. On behalf of the appellant learned counsel contended that at the relevant hour of the occurrence the appellant was intoxicated and was deprived of self control. His act was not premeditative so, the case falls within the ambit of exception of Sec- tion 300 IPC. 8. He further contended that in this case the prosecution has examined all the interested and partisan witnesses, so, the trial Judge wrongly accepted their evidence for the conviction of the appellant. The Judgment of conviction is perverse in na- ture and is fit to be set aside. On the other hand, learned APP for the State submitted that in a case of partisan, or related witnesses strict scrutiny is required for accepting their evidence. In the present case the evidence of all the eye witnesses is broadly true against the appellant and there is nothing wrong in the judgment of conviction. 9. In order to examine the rival con- tentions, it is necessary to appreciate the evidence on record. 10. At trial the prosecution examined altogether ten witnesses in support of its case. Out of them PW 1, Mungeshwar Manjhi is a hostile witness. PW 8 is Dr. Awadhesh Kumar Sharma who examined the injured, Rajanti Kumari, on 6.10.96 at 6.30 p.m. in Primary Health Centre, Khizer and found three simple injuries on her person caused by warm pellet like substance, and she was discharged. He proved the injury report (Ext 1). PW 9 is Dr. Arbind Prasad who conducted autopsy on the dead body of the deceased, Rajanti Kumari and also proved postmortem examination report of the deceased Jirmatiya Devi. PW 10, Pramod Kumar Singh, is the investigating officer of this case. The remaining six witnesses, namely, PW 2 Rameshwar Manjhi, PW 3 Ramjatan Manjhi, PW 4 Binda Manjhi, PW 5 Chandeshwar Manjhi, PW 6 Kouleshwari Devi and PW 7 Sateyndra Manjhi are the eye witnesses to the occurrence. All these witnesses except PW 6, Kouleshwari Devi, are related to the deceased. PW 2 Rameshwar Manjhi and PW 3 Ramjatan Manjhi are the own brothers and deceased Jirmatiya Devi was their sister-in-law. PW 4, Binda Manjhi, PW 5, Chandeshwar Manjhi (the husband of the deceased) and PW 7, Sateyndra Manjhi, the informant, are the own brothers. 11. All these witnesses except PW 6, Kouleshwari Devi, are related to the deceased. PW 2 Rameshwar Manjhi and PW 3 Ramjatan Manjhi are the own brothers and deceased Jirmatiya Devi was their sister-in-law. PW 4, Binda Manjhi, PW 5, Chandeshwar Manjhi (the husband of the deceased) and PW 7, Sateyndra Manjhi, the informant, are the own brothers. 11. PW 9 is Dr. Arbind Prasad. His evidence is that on 8.10.96 he was posted in Magadh Medical College. He conducted autopsy on the dead body of the deceased, Rajanti Kumari, on 8.10.96 at 3.45 p.m. and found the following antemortem injuries on her person : (I) Three peasized and shaped blackened inverted margined wounds scalpdeep were found located over frontal part of the scalp in its middle and upper part. Haematoma was found underneath the scalp of the frontal and left parietal region. Linear crack of the outer table of the frontal bone underneath scalp injury was found for 1". (II) One pea shaped and sized blackened and inverted margined skindeep wound located 1/2" above mid of left clavicle was found in the neck. Underlying tissues were found infiltrated with blood clots. Left chest cavity contained blood and blood clots. (III) Two pea shaped and sized blackened inverted margined wounds located over lateral aspect of the left upper thigh were found, underlying tissues were infiltrated with blood clots. No bullet or pellet was recovered from within or outside of the body. According to him her death was caused due to shock, haemorrhage and comma produced by injury to head caused by firearm. The age of injury was found within 24 hours at the time of postmortem examination. He proved the postmortem report (Ext. 2) He also proved the postmortem report of Jirmatiya Devi which is in the pen and signature of late Dr. Kapildeo Prasad (Ext. 2/1). He conducted autopsy on the dead body of the deceased Jirmatiya Devi on 6.10.96 at 12.10 p.m. He found the following antemortem injuries on her person. (I) Several pea sized penetrating wounds over right and left side of the chest, The margines of the wounds were inverted and irregular. The wounds were directed towards posteriorly to the lungs. Some metalic pellets were found embedded in the soft tissues of the lungs which was recovered. Thoracic cavity was found filled with blood and clots. (I) Several pea sized penetrating wounds over right and left side of the chest, The margines of the wounds were inverted and irregular. The wounds were directed towards posteriorly to the lungs. Some metalic pellets were found embedded in the soft tissues of the lungs which was recovered. Thoracic cavity was found filled with blood and clots. (II) Abrasion of size 1 l/2"x 1" was found over the left temporal region. Blood and clots were found over the wound. (III) Abrasion of size 1 l/2"x 1/2" was found over the right cheek. (IV) Blackish coloured Bruise of size l"x 1/2" was found over upper lid of both (Rt. and Lt.) eyes. Injury No. 1 was found grievous in nature caused by firearm and rest were simple in nature caused by hard and blunt object. According to him her death was caused due to shock and haemorrhage owing to injury No. 1 and the age of her injury was found within 12 to 16 hours at the time of post mortem examination. 12. Thus, the medical evidence suggests that both Jirmatiya Devi and Rajanti died of firearm injuries found on their persons. The defence has also not challenged their murder but has denied the participation of the appellant in the commission of their murder. 13. PW 7, Sateyndra Manjhi, is the informant. His evidence is that at the alleged time he was also present at the place of occurrence. When the villagers were singing Jhumar songs on the eve of Jitiya festival, the appellant Kara Manjhi with pistol came there and fired at his Bhabhi, Jirmatiya Devi, which hit her and also her baby, Rajanti Kumari. Both the injured were moved to Kurwa and from there to police station but on the way Jirmatiya Devi died and his niece Rajanti Kumari also later on died. His further evidence is that his statement was recorded by the officer Incharge in presence of the witnesses, Shankar Manjhi and Gulab Chand Manjhi. He put his LTI on his statement. In his cross examination he has stated that the appellant came at the place of occurrence at the same time when he arrived there and he committed the offence. PW 6, Koulesh- wari Devi is an independent witness. She has stated that on the date of occurrence there was Jitiya festival and the villagers were singing Jhumar songs. In his cross examination he has stated that the appellant came at the place of occurrence at the same time when he arrived there and he committed the offence. PW 6, Koulesh- wari Devi is an independent witness. She has stated that on the date of occurrence there was Jitiya festival and the villagers were singing Jhumar songs. At about 4 p.m. the appellant Kara Manjhi came and opened fire from his Banduk at Jirmatiya Devi as a result of which she as well as her baby in lap sustained injuries. Thereafter the appellant made good escape from there. On the way to hospital Jirmtiya Devi succumbed to her injury and her daughter also lost her life in course of treatment. In cross examination she has stated that after one hour of celebration of Jitiya festival the appellant Kara Manjhi came there and opened fire from pistol. Binda Manjhi, PW 5 was also present there. 14. The evidence of PW 2, Rameshwar Manjhi, PW 3, Ramjatan Manjhi, PW 4, Binda Manjhi and PW 5 Chandeshwar Manjhi, is similar to the evidence of the other eye witnesses to the occurrence. They have categorically stated that while the villagers were singing Jhumar songs on the occasion of Jitiya festival in Nadra Pahar Tal in Bhuin Toli at about 4-/5 p.m. the appellant, Kara Manjhi, armed with pistol came there and fired which hit Jirmatiya Devi and also her minor daughter Rajanti Kumari in her lap and they became injured. The assembled persons attempted to apprehend the appellant but at the point of pistol he made good escape from there. Thereafter while both the injured were being removed to Khijersarai Hospital, Jirmatiya Devi died on the way and Rajanti Kumari died in course of treatment. PW 2, Rameshwar Manjhi, in his cross examination has stated that at the relevant hour of the occurrence out of the assembled persons about fifty percent had taken wine and were intoxicated including the appellant. He has further stated at para 12 of his cross examination that the appellant, Kara Manjhi, came alone at the place of occurrence and he along with Rambrichh jitan Sobkai and others attempted to apprehend him but at the point of pistol he fled away. He has further stated at para 12 of his cross examination that the appellant, Kara Manjhi, came alone at the place of occurrence and he along with Rambrichh jitan Sobkai and others attempted to apprehend him but at the point of pistol he fled away. PW 3, Ramjatan Manjhi, has stated in his cross examination that villagers started singing Jhumar songs at 7 p.m. and after 20 minutes the appellant came there and fired shot at Jirmatiya Devi. The appellant was chased but he managed to escape from there. PW 4, Binda Manjhi, in his cross examination at para 9 has staged that when the appellant came, the assembled persons persuaded him to refrain from using firearm sut he did not pay any heed and committed the crime. PW 5, Chandeshwar Manjhi, the husband of the deceased, has stated in his cross examination that just after the occurrence he returned to his house and became perplexed and remained unconscious for about 3/4 days. The time of occurrence has been debated by the learned counsel for the appellant with reference to the evidence of PW 3 Ram Jatan Manjhi. The evidence of PW 3 at para 4 is that after his arrival at the place the appellant Kara Manjhi came there. The villagers started singing Jhumar songs at 7 p.m. and 20 minutes after the appellant came there and fired shot at Jirmatiya Devi. It must be pointed out here that when a rustic villager faces the Courts atmosphere he loses balance and so, minor contradictions are bound to occur in his evidence. It has been held in a case in of Krishna pillai V/s. State of Kerela, reported in 1981 SC 1237, that: "The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defance may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases." 15. PW 10, Pramod Kumar Singh, is the Investigating officer of this case. His evidence is that on 5.10.1997 he was posted in Khijersarai Police Station. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases." 15. PW 10, Pramod Kumar Singh, is the Investigating officer of this case. His evidence is that on 5.10.1997 he was posted in Khijersarai Police Station. On the same day while he was on patrolling duty he recorded the fardbeyan of Sateyndra Manjhi in PO village and he put his LTI thereon. He proved fardbeyan (Ext. 3). He also proved the formal FIR drawn on the basis of the fardbeyan. His further evidence is that he was entrusted with the investigation of this case. He prepared inquest report of both the deceased, Jirmatiya Devi and Rajanti Kumari in the hospital. He visited the PO, recorded the statement of witnesses and after completion of the investigation submitted chargesheet. Nothing material has come in his cross examination. It appears from the evidence of this witness that he investigated this case in very purfunctory manner. His evidence is silent with respect to the place of the occurrence and also objective findings observed by him. The duty of an investigating officer is not to suppress inconvenient evidence but to place before the Court all evidences which have been collected during investigation. However, the position of law is that purfunctory or irregular investigation does not affect the case of the prosecution. It has been held in a case of Lila Ram (D) through Duli Chand V/s. State of Haryana and another, reported in AIR 1999 SC 3717 that: "any irregularity or even an illegality during investigation should not be treated as a ground to reject the prosecution case." 16. On going through the evidence on record we do not find any intrinsic inconsistency or contradiction in between the evidence of eye witnesses to the occurrence, so far as the basic prosecution is concerned. It is apparent that on the alleged date, i.e., 5.10.96, at 4.30 p.m. while the villagers were engaged in staging Jhumar songs on the occasion of Jitiya festival in the PO village, the appellant armed with pistol appeared and fired shot intentionally at Jirmatiya which hit her as well as her daughter Rajanti Kurnari and ultimately proved fatal to them. It is also established from the medical evidence that both the injured succumbed to their firearm injuries caused by the appellant. It is also established from the medical evidence that both the injured succumbed to their firearm injuries caused by the appellant. All the eye witnesses to the occurrence examined by the prosecution had no enmity so far as the accused appellant is concerned and it is not accepted that the aforesaid eye witnesses would falsely implicate the innocent person for a charge of murder. They appeared to be natural and trust-worthy witnesses. 17. Thus, on consideration of the above evidence and other materials on record we are of the view that the persecution has succeeded in proving its case beyond all reasonable doubts that the homicidal death of Jirmatiya Devi and Rajanti Kumari was caused by the appellant, Kara Manjhl @ Surendra Manjhi. There is nothing wrong in the order of conviction passed by the trial Judge against the appellant. 18. In the result, this appeal fails and is dismissed. The appellant is in custody, so, he will serve the remaining period of sentence imposed upon him.