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2003 DIGILAW 556 (JHR)

Shankar Dusadh @ Ram v. State of Jharkhand

2003-05-01

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.- This appeal has been directed by the sole appellant named above against the judgment and order dated 1.6.2002 and 3.6.2002 respectively passed in Sessions Trial No. 207 of 1991 by Shri Ramanuj Narayan, 7th Additional Sessions Judge, Palamau at Daltonganj whereby and whereunder the appellant was found guilty for the offences punishable under Sections 302 and 436 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for life for the offence punishable under Section 302 of the Indian Penal Code and R.I. for ten years for the offence punishable under Section 436 of the Indian Penal Code. However, both the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of P.W10, Naresh Ram, the husband of Bhagwania Devi, the deceased of this case, recorded by S.I., R.G. Singh of Hussainabad P.S. on a.5.1990 at 6.00 hours at the house of the informant in village Pokhrahi, P.S. - Hssainabad, District Palamau regarding the occurrence which is said to have taken place on 7.5.1990 at 20.00 hours in front of the house of the informant in which Bhagwania Devi, the wife of the informant was done to death. The case was instituted on that very day at 11.30 hours as per Ext.4, the formal F.I.R and Ext. 2 is the signature thereon of S.I. Ram Ganesh Singh. The said fardbeyan and formal F.I.R were received in the court empowered to take cognizance on 9.5.1990. 3. The prosecution case, in brief, is that appellant, Shankar Dusadh @ Shankar Ram is the step brother of the informant and he was creating disturbances in the courtyard by raising hue and cry armed with 'Balua' and P.W.7, Basanti Devi and Shanti Kumari (since dead), the daughters of the informant, told the informant, not to go in the courtyard as there is every possibility of bloodshed there and at this he made his exit from the courtyard and came outside his house. It is alleged that thereafter the appellant set fire the two rooms in the western side of the house which includes the exit passage of the said house and thereafter the appellant climbed over the thatched roof of the house armed with Balua' and started pelting tiles (Khapra) and he was uttering the persons assembled there to flee way failing which they shall be done to death. The prosecution case further is that Bhagwania Devi, the deceased of this case, came there from the south in the meantime in the front of the door of Bindeshwari Dusadh and P.W8, Jaswa Devi was also present there. It is alleged that the appellant jumped from the said thatched roof in the courtyard of P.W8, Jaswa Devi and came outside of the said house armed with Balua at the door of Bindeshwari Dusadh, the husband of P.W.8 aforesaid and at this, Bhagwania Devi aforesaid implored the appellant as to why he is creating such disturbances as it is matter of prestige due to the fact that the marriage of her daughter is to be solemnized and at this the appellant retorted that she has concealed her husband and has come to talk with him and the appellant gave a blow by the said Balua' on the left temporal region of Bhagwania Devi which caused deep bleeding injury as a result of which Bhagwania Devi fell down and died and the appellant was surrounded by the persons assembled there and apprehended. It is further alleged that P.W.3, Birju Vishwakarma, P.W4, Ram Prasad Ram and several other persons have witnessed the occurrence in question. 4. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case by the informant only to grab his share in the ancestral property. 5. The prosecution has examined in all eleven witnesses to substantiate the charges levelled against the appellant. P.W.10, Naresh Ram, the informant is the step brother of the appellant and P.W.6, Manati Kumari and P.W.7, Shanti Devi are the daughters of the informant. P.W.8, Jaswa Devi is the neighbour of the informant and in her presence the occurrence is said to have taken place. P.W.9, Bharat Ram. P.W.10, Naresh Ram, the informant is the step brother of the appellant and P.W.6, Manati Kumari and P.W.7, Shanti Devi are the daughters of the informant. P.W.8, Jaswa Devi is the neighbour of the informant and in her presence the occurrence is said to have taken place. P.W.9, Bharat Ram. P.W.3, Birju Vishwakarma and P.WA, Ram Prasad Ram are the residents of the P.O. village said to be present at the place of occurrence in course of the said occurrence. But P.Ws. 3 and 4 have turned hostile and do not at all support the prosecution case. P.Ws. 10,6,7, 8 and 9 claim themselves to be the ocular witnesses of the occurrence. P.W.5, Jeetan Mistri has been tendered. The I.O. has not taken oath in this case for the prosecution and the fardbeyan (Ext.3), and the formal F.I.R. (Ext.4) have been proved by formal witnesses i.e. P.W.2 and P.W.11. P.W.1, Dr. Birendra Prasad has conducted the post-mortem examination on the dead body of the deceased and the post mortem report per his pen is Ext. 1 in this case. No oral and documentary evidence has been brought on behalf of the defence. 6. The learned court below has relied upon the testimony of P.W.10, the informant read with the evidence of P.Ws. 6, 7, 8 and 9 coupled with the objective finding of the medical witness regarding the injuries appearing on the person of the deceased and finding ring of truth in the evidence of prosecution witnesses found the appellant guilty and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by Smt. Nitu Sinha, advocate and amicus curiae appointed in this case to assist the Court for the appellant that the alleged ocular evidence of the prosecution witnesses is not at all worthy of credit in view of the inherent inconsistencies and material contradictions appearing therein. 7. Assailing the impugned judgment it has been submitted by Smt. Nitu Sinha, advocate and amicus curiae appointed in this case to assist the Court for the appellant that the alleged ocular evidence of the prosecution witnesses is not at all worthy of credit in view of the inherent inconsistencies and material contradictions appearing therein. It has further been submitted that I.O. has not been examined in this case by the prosecution and in the absence of objective finding of the I.O., the place of occurrence which is inconsistent as per the ocular testimony of the prosecution witnesses does not stand established and the materials exhibits alleged to have been seized by the I.O. at the place of the occurrence has also, not been brought on the record and furthermore, the appellant stands debarred of the opportunities of eliciting the facts in the cross-examination of the I.O. showing his innocence and as such the appellant stands seriously prejudiced in this case. It has also been submitted that the appellant used to reside outside the village and his entire property stands grabbed by the informant and no motive has been disclosed by the prosecution in the commission of the murder of the deceased by the appellant and false implication of the appellant in this got up case at the instance of the informant cannot be totally ruled out in the facts and circumstances of the case. It has also been submitted in the alternative that there was altercation between the appellant and the deceased and in that altercation on the spur of moment on provocation by the deceased the assault might have been done by the appellant and as such the allegation imputed against the appellant falls under Section 304 Part-I or Part-II of the Indian Penal Code. 8. 8. Refuting the contention advanced by the learned amicus curiae it has been submitted by the learned A.P.P. that there is legal and reliable evidence of several ocular witnesses of the occurrence to testify the fact that the appellant has committed the murder of the deceased by causing injury on her left temple by Balua and the medical witness has found the existence of sharp cut deep injury on the left side cheek of the deceased as a result of which the deceased has died and the aforesaid ocular witnesses have no animus at all to depose falsely against the appellant as well as to falsely implicate him in the case. It has also been submitted that all the ocular witnesses of the occurrence specially P.W.8 and P.W.9 are the most natural and competent witness of the occurrence whereas P.Ws. 10, 7 and 6 are the inmates of the house of the appellant and they have occasion to be present at the place of the occurrence and to witness the occurrence and their testimony cannot simply be discarded on the basis that they are the husband and daughters respectively of the deceased. It has also been contended that there is no vital and material contradiction or inconsistency in the ocular testimony of the prosecution witnesses referred to above to cast a cloud of suspicion to the very warp and woof of the prosecution case. Lastly it has been contended that in view of overwhelming evidence as per testimony of the ocular witnesses of the occurrence establishing the guilt of the appellant beyond all reasonable doubts the non-examination of the I.O. does not cut any ice and cause any prejudice to the appellant and the absence of motive pales into insignificance in view of the evidence on the record and thus, there is no legal infirmity in the impugned judgment. 9. It will admit of no doubt that the occurrence has taken place at 8 p.m. on 7.5.1990 at the house of P.W. 10, the informant in which the portion of his joint house was set on fire and his wife Bhagwania Devi was done to death. The post mortem examination was conducted on the dead body of the deceased by P.W.1, Dr. The post mortem examination was conducted on the dead body of the deceased by P.W.1, Dr. Birendra Prasad on 9.5.90 at 8.15 a.m. The medical witness has deposed to have found one ante mortem injury on the person of the deceased which is sharp cut deep injury 8" x 3 1/2" x 2 1/ 2" over left side cheek cutting mandible bone, muscles, large arteries and veins extending back of the neck. There was also laceration of underlying muscles stained with blood and clotted blood material was also found. The medical witness has further deposed that death of the deceased is due to haemorrhage and shock caused by cutting of large arteries and veins as a result of the said injury and the said injury is sufficient in the ordinary course of nature to calise the death of the deceased. The medical witness has also deposed that the said injury has been caused by sharp cutting weapon such as Balua and time elapsed since death is within 48 hours. The postmortem report (Ext. 1) per pen of the medical witness corroborates his testimony regarding the objective finding in respect of the injuries found on the person of the deceased. 10. It is pertinent to mention at the very outset that the appellant is the step brother of the informant and they have their joint house in village Pokhrahi and there has not been any partition between them regarding their ancestral property. The appellant was residing somewhere else out of the village for his work and he returned to his village after leaving the job a day prior to the occurrence and he was residing in the said joint house with his wife. There is also evidence on the record that the appellant was living separately in two rooms of the said house as per his convenience without there being any partition. The children of the appellant were already dead. For this the evidence of P.W.6 and P.W.7 read with the evidence of P.W.10 is referred to. P.W.10, the informant has deposed that it was a moonlit night when the occurrence has taken place. P.W.6 and P.W.7 have also corroborated the evidence of P.W.10 in respect thereof. The children of the appellant were already dead. For this the evidence of P.W.6 and P.W.7 read with the evidence of P.W.10 is referred to. P.W.10, the informant has deposed that it was a moonlit night when the occurrence has taken place. P.W.6 and P.W.7 have also corroborated the evidence of P.W.10 in respect thereof. According to prosecution case, the appellant was creating disturbances armed with Balua in the courtyard of the said house and there was every likelihood of apprehension of bloodshed and P.W.7, Shanti Kumari and Basanti Devi not examined as she died during the pendency of this case), the daughters of the informant, asked P.W.10, the informant not to go in the courtyard and at this the informant made his exit from the said house and thereafter the appellant set fire in the two western rooms of the house and thereafter climbed over the thatched roof of the said house and started pelting tiles to the persons who had assembled at the place of occurrence and thereafter he jumped from the said thatched roof in the courtyard of P.W.8 and came outside of the said house armed with Balua and in the meantime, the deceased happens to come there and implored the appellant to desist from his actions and there has been an altercation between them and thereafter the appellant is said to have given a blow by 'Balua' on the left temple of the deceased causing deep cut injury as a result of which she fell down and died. P.W.10, the informant has deposed that at the time of the occurrence he was in the courtyard of the house and the appellant armed with 'Balua', which was handed over to him by his wife, started looking here and there in the courtyard and at the instance of his daughter Basanti Devi he made his exit from the courtyard as the appellant was creating disturbances inside the courtyard with the said 'Balua'. He has further deposed that thereafter the appellant set fire in the said house as a result of which the house started burning and there was enormous blaze there. He has further deposed that thereafter the appellant set fire in the said house as a result of which the house started burning and there was enormous blaze there. His evidence is further to the effect that a large number of persons had collected there and the appellant thereafter climbed over the thatched roof by scaling the wall of the house and intimidated the persons collected there not to extinguish the fire and at this the persons collected there started throwing brickbats at him which led to the appellant to throw tiles at them. P.W.10, has further deposed that thereafter, the appellant jumped in the courtyard of the house of P.W.8 from the thatched roof and came outside the said house armed with Balua and in the meantime his wife, Bhagwania Devi came there. from south and she implored before the appellant not to create disturbance as the marriage of her daughter is to be solemnized and his actions is against the prestige of family and at this the appellant told her that she has concealed her husband and has come forward to talk with him and soon thereafter the appellant gave a blow near the left neck of Bhagwania Devi which caused bleeding injury and she fell down and died. In para-9 of his cross-examination, the informant has very categorically deposed that the occurrence has taken place in the lane in front of the house of Bindeshwari Ram, the husband of P.W.8, Jaswa Devi and the said lane runs from north to south. He has also deposed that the appellant gave only one blow on the person of the deceased. P.W.6, Manti Kumari and P.W.7, Shanti Kumari, both the daughters of P.W.10, the informant in their evidence on oath have materially corroborated the testimony of P.W.10. P.W.8, Jaswa Devi is the wife of Bindeshwari Ram aforesaid and her house is adjacent to the place of occurrence as well as the house of the informant. According to averments made in the fardbeyan, she was present at the time of the occurrence. She has deposed that at the time of the occurrence she was cooking and when there was fire in the house of the informant she came out at the place of the occurrence and found a large number of persons assembled there. According to averments made in the fardbeyan, she was present at the time of the occurrence. She has deposed that at the time of the occurrence she was cooking and when there was fire in the house of the informant she came out at the place of the occurrence and found a large number of persons assembled there. She has deposed that the appellant and the informant are the sons of the elder brother of her husband and she is as such an equidistant relative of the informant and the appellant. She has further deposed that the appellant gave a blow by 'Balua' at the neck of the deceased as a result of which the deceased had an instantaneous death. P.W.9 is the son of P.W.8 and he has deposed that he came to the place of occurrence to extinguish the fire which has engulfed the joint house of the appellant and the informant. He has also deposed that a large number of persons had assembled there. His evidence is further to the effect that he found the appellant on the thatched roof of the house and he was throwing tiles at the persons collected there who were trying to extinguish the fire and the persons collected there started throwing brickbats at the appellant. He has deposed that thereafter the appellant jumped in her courtyard and came outside the said house and gave a blow at the neck of Bhagwania Devi which caused bleeding injuries near her left temple and she fell down and died. This witness is also an equidistant relative of the appellant and the deceased. The evidence of P.W.s. 8 and 9 is worthy of credit in view of the fact that they are equidistantly related with the informant and the deceased and they have no animus at all to depose falsely in this case. There is also no semblance of enmity between the appellant and P.Ws. 8 and 9. The evidence of P.W.s. 8 and 9 corroborates the testimony of the informant in material particulars and there is no apparent reason to discard their testimony. The medical evidence on the record also materially corroborates the manner of assault on the deceased causing her death. In this case, there is the testimony of P.W.10, the informant, P.Ws. 8 and 9. The evidence of P.W.s. 8 and 9 corroborates the testimony of the informant in material particulars and there is no apparent reason to discard their testimony. The medical evidence on the record also materially corroborates the manner of assault on the deceased causing her death. In this case, there is the testimony of P.W.10, the informant, P.Ws. 6 and 7 who are the husband and the two daughters respectively of the deceased besides P.W.8, the wife of uncle of the informant and P.W.9 the son of P.W.8 and they are the close relation of the deceased and P.Ws.8 and 9 are equidistant relations of the informant as well as of the deceased. There is no iota of evidence on the record to show that the informant had any enmity, existing and alive against the appellant prior to the occurrence. 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, a duty has been cast on the court to scrutinize the evidence of the relative witnesses with care and caution. The two independent witnesses i.e. P.W. 3 and P.W.4 of the P.O. village who had come to the place of the occurrence have turned hostile and they do not support the prosecution case and for this, reasons are not very far to seek. 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 of the court to separate the truth from the 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 deficiencies, drawbacks and infirmities 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 technical approach in perusal of the evidence should be avoided. It is pertinent to mention here that after careful and caution scrutiny of the evidence on the record, I find ring of truth in the evidence of P.Ws.10, 6, 7, 8 and 9 which stands materially corroborated by the medical evidence read with Ext. 1 the post mortem report. Therefore, the non-examination of any independent witness in the facts and circumstances of the case cannot be viewed as a lacuna of the prosecution case. It is true that' there is some contradictions in the evidence of P.Ws.10, 6 and 7 but the said contradictions creeping in their evidence is of very trivial nature not touching the core and spectrum of the prosecution case. Therefore, the evidence of the informant read with P.Ws.6 and 7 cannot be brushed aside in this case on this score. It is true that I.O. has not taken oath in this case and the incriminating articles seized at the place of occurrence have also not been brought on the record, but it is not a case in which prejudice can occasion to the appellant due to the non-examination of the I.O. in view of the ocular evidence of five witnesses who are the most independent, natural and competent witnesses of the occurrence having occasion to witness the occurrence in the moonlit night as well as in the blaze of fire as a result of setting fire in the house. Absence of any motive for the commission of the murder of the deceased in the facts and circumstances of the case coupled with the ocular testimony of the witnesses aforesaid pales into insignificance in this case. Therefore, I see no force in the contention advanced on behalf of the appellant made by the learned amicus curiae. Absence of any motive for the commission of the murder of the deceased in the facts and circumstances of the case coupled with the ocular testimony of the witnesses aforesaid pales into insignificance in this case. Therefore, I see no force in the contention advanced on behalf of the appellant made by the learned amicus curiae. Lastly it cannot be said in this case that murder of the deceased caused by the appellant, is unintentional and at the spur of moment. The materials on the record establish unerringly and unworkably that the murder of the deceased has been committed with intention by the appellant as at the time .of the occurrence she was imploring the appellant not to create disturbance as the marriage of her daughter is to be solemnized and it is a matter of prestige and not being swayed by her entreaty the appellant has committed her murder due to the fact that she has come forward to talk with him. Therefore, it is a case in which the deceased has been done to death by the single blow caused by the appellant with deliberate intention. Therefore, this case does not fall within the ambit of Section 304 either Part-I or Part-II of the Indian Penal Code. Therefore, the contention of the learned amicus curiae also in respect thereof has no legs to stand. The learned court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the guilt of the appellant. I, therefore, see no illegality in the impugned judgment requiring an interference therein. 11. There is no merit in this appeal and it fails. The appeal is hereby dismissed. Lakshman Uraon, J.-I agree.