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2004 DIGILAW 790 (JHR)

Shambhu Sirka v. State of Bihar (now Jharkhand)

2004-08-05

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2004
JUDGMENT S.J. Mukhopadhaya, J.-The appellant has challenged the judgment and order of conviction and sentence dated 10th March, 1998, passed by Shri S.H. Kazmi, 3rd Addl. Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 571 of 1995, arising out of Pasrudih P.S. Case No. 165 of 1995 corresponding to G.R. case No. 1430 of 1995, whereby and whereunder, he has been found guilty and convicted for the offence under section 302 of the I.P.C. and was sentenced to undergo rigorous imprisonment for life. 2. The husband of Informant deceased Purno Nayak was an employee of TELCO. On 26th July, 1995 at 3 P.M., the said Purno Nayak was lying on a Cot under a ‘Kathal’ (Jackfruit) tree by the side of the house of Lakhan Mardi (P.W. 6). At 6 P.M. on the same day, Rinti Mardi (P.W. 7), daughter of Lakhan Mardi came to the house of Informant, Jema Nayak (P.W. 2) and informed her that the accused Shambhu Sirka was assaulting the Informant's husband with a Farsa. Upon that the Informant rushed to the house of Lakhan Mardi and the accused was seen assaulting him with a Farsa. When the Informant raised Hulla, her daughter Fulo Nayak P.W.1) and other co-villagers reached there, whereupon the accused fled away towards his house. The Informant found her husband dead with deep multiple injuries on the left side of neck as well as some other parts of the body. Upon enquiry being made, Rinti told the Informant that the accused had come to call the deceased to visit his house to see his ailing son as the deceased used to treat the patients with Jhar-Foonk, but the deceased refused to go along with him which enraged the accused and he went back to his house abusing and also threatening him to kill. Within a short span, the accused again returned with a Farsa in his hand and started assaulting the deceased which resulted in his death. 3. In course of trial, the prosecution produced altogether nine witnesses in order to substantiate the charges, framed against accused. There are three eye witnesses as per F.I.R., namely, P.W. 1, Fulo Nayak, daughter of deceased; P.W. 2, Jema Nayak, the Informant and wife of deceased and; P.W. 7, Rinti Mardi, an independent witness. 3. In course of trial, the prosecution produced altogether nine witnesses in order to substantiate the charges, framed against accused. There are three eye witnesses as per F.I.R., namely, P.W. 1, Fulo Nayak, daughter of deceased; P.W. 2, Jema Nayak, the Informant and wife of deceased and; P.W. 7, Rinti Mardi, an independent witness. There are three hearsay witnesses, namely, P.W. 4, Kumar Hembram; P.W. 5, Pandu Hembram; and P.W. 6, Lakhan Mardi, who is also a seizure list witness. The witnesses who are related to the deceased are P.W. 1, Fulo Nayak, daughter of deceased and eye witness as per F.I.R.; P.W. 2, Jema Nayak, the Informant, wife of deceased and eye witness as per F.I.R.; P.W. 3, Raya Nayak, brother of the deceased, who is an inquest report as well as seizure list witness. Rest two witnesses are, P.W. 8, Dr. Akhilesh Kumar Choudhary, who conducted the autopsy on the body of the deceased and P.W. 9, Vijay Kumar Singh who was the Investigation Officer (I.O.) of the case. 4. Learned 3rd Additional Sessions Judge, Jamshedpur relied on the evidence of P.W. 7, an independent eye witness, found her ocular evidence supported by the medical evidence of the doctor (P.W. 8). The hearsay witnesses also supported the case of prosecution including P.W. 6, a seizure list witness, who saw the Police recovered a Farsa from the house of accused Shambhu Sirka. When the evidence regarding motive was considered, the court below found commission of crime at the hands of the accused as the deceased refused to go for treatment of the son of the accused by Jhar-Foonk, due to which the accused got enraged, abused and threatened the deceased and then went away and after few moments he came back with a Farsa in his hand and started assaulting the deceased. The court below found that P.W. 7, Rinti Mardi was the only eye witness to the total occurrence and she was an independent witness being not related to the deceased. The case of the prosecution was also corroborated by ocular evidence of two other witnesses (P.Ws. 1 and 2), they having seen the part of the occurrence. 5. Mr. P.P.N. Roy, learned counsel for the appellant submitted that the trial court disbelieved P.Ws. 1 and 2 to be the eye witnesses. The case of the prosecution was also corroborated by ocular evidence of two other witnesses (P.Ws. 1 and 2), they having seen the part of the occurrence. 5. Mr. P.P.N. Roy, learned counsel for the appellant submitted that the trial court disbelieved P.Ws. 1 and 2 to be the eye witnesses. The accused has been held guilty on the basis of evidence of solitary eye witness (P.W. 7), who was a minor of about 14 years old at the time of occurrence. She being a close friend of the daughter of the deceased can also be stated to be an interested witness. It was further submitted that the solitary eye witness, P.W. 7 having not been examined by the Police under section 161 Cr.P.C., the Court should doubt her statement. It was also submitted that the place of occurrence has not been established and there is a confusion and contradictions in the, ocular evidence of the witnesses. This apart, the station diary was not produced before the court to find out the source of information of Police nor blood stained Farsa or Blood stained earth were sent for forensic examination, which also prejudiced the defence. It was submitted that the I.O. while stated that the place of occurrence was an open Angan of Lakhan Mardi, as shown in the inquest report, but P.W. 7 and Informant stated that the place of occurrence is below the 'Kathal' tree in front of the house of Lakhan Mardi. Reliance was placed on the decision of the Supreme Court in the case of D.V. Shanmugham Vs. State of A.P., reported in (1997)5 S.C.C. 349 , 'wherein the Supreme Court taking into consideration the facts and circumstances of the said case that the prosecution witnesses were not such as ‘o where the occurrence took place., held that the accused is entitled to the benefit of doubt and, accordingly, set aside the conviction and sentence of the said accused. 6. Learned A.P.P. refuting the argument has submitted that the eye witnesses P.Ws. 1, 2 and P.W. 7 have corroborated the prosecution case by stating that the accused Shambhu Sirka was assaulting the deceased with a Farsa. P.W. 7, Rinti Mardi, is an independent eye witness of the total occurrence who saw the accused assaulting the deceased by a Farsa and informed it to the Informant, P.W. 2, the wife of the deceased. 1, 2 and P.W. 7 have corroborated the prosecution case by stating that the accused Shambhu Sirka was assaulting the deceased with a Farsa. P.W. 7, Rinti Mardi, is an independent eye witness of the total occurrence who saw the accused assaulting the deceased by a Farsa and informed it to the Informant, P.W. 2, the wife of the deceased. Upon that the Informant, P.W. 2 rushed to the house of Lakhan Mardi and she had also seen the accused assaulting her husband with a Farsa. 7. The doctor, P.W. 8 who is said to have conducted the post mortem examination on the body of the deceased, found four injuries and opined that all the injuries were ante mortem in nature and were caused by heavy sharp cutting weapon like Farsa. The four injuries are as follows: "(A) Sharp Cuts- (1) Antroportenanly placed over lateral aspect of left upper arm-10 cm x 3 cm x bone deep. Head of humerous having cut fracture mark, (2) over left side of face antro portenanly placed severe human in shape 10 cm x 2 cm x muscle deep, (3) sharp cut antro portennanly placed involving left side of chin, left lateral aspect of upper part of neck and left posterior half of neck-20 cm x 3 cm x bone deep. Left half of the body of mandible and upper convical verteluace 3rd and 4th having cut fractures, (4) sharp cu' over vertral aspect of left mid forearm obliquely placed 5 cm x 3.5 cm x bone deep on the underlying forearm bones having cut fracture. " 8. The submission as made by the counsel for the appellant that the solitary eye witness to the total occurrence, P.W. 7 was not examined by the Police under section 161 Cr.P.C., cannot be accepted in view of the testimony of P.W. 9, the Investigating Officer, who stated that on return to the place of occurrence, he took the statements of Fulo Nayak (P.W. 1); Rinti Mardi (P.W. 7); Mallti Mardi; and Pandu Hembrom (P.W. 5). P.W. 1, Fulo Nayak, daughter of the Informant deposed that her father (deceased) was unwell so he was sleeping on a Cot under a 'Kathal' (Jackfruit) tree in front of the house of Lakhan Mardi. At that time, she was in her house. P.W. 1, Fulo Nayak, daughter of the Informant deposed that her father (deceased) was unwell so he was sleeping on a Cot under a 'Kathal' (Jackfruit) tree in front of the house of Lakhan Mardi. At that time, she was in her house. Rinti Mardi (P.W. 7) came to their house and informed her mother (P.W. 2) that the accused was assaulting her father with Farsa, upon which her mother (P.W. 2) rushed to the place of occurrence. She followed her mother. When she reached near the place of occurrence, she saw her father dead, but she did not see the accused assaulting her father. She saw the cut injuries on the neck; cheek and arms of the deceased from which blood was oozing out. She further said that the accused came to call her father for JHAR FOONK and upon his refusal, the accused had threatened him to kill. She identified the accused who was present in the dock. In her cross-examination, P.W. 1 said that when she reached the place of occurrence, she found her father lying on the ground; afterwards people told her that her father was dead. 9. P.W. 2, Jema Nayak, the Informant, who is the wife of the deceased stated that at the time of occurrence, she was in her house. Her husband (deceased) was sleeping under a 'Kathal' (.Jackfruit) tree near the house of Lakhan Mardi, as he was indisposed. She further stated that Rinti Mardi (P.W. 7) came to her house and informed her that the accused was assaulting her husband whereupon she rushed towards the house of Lakhan Mardi and found her husband lying on the ground, she had seen the accused inflicting Farsa blow on him. Her husband died at the place of occurrence because of injuries inflicted at the neck, cheek and arms of the deceased from which blood was oozing out. In her cross-examination, P.W. 2 said that when she reached the place of occurrence had seen the occurrence, she became mentally and emotionally upset. The occurrence took place at about 6 P.M. By that time, the Sun had already set, but there was enough light to recognize. Though P.Ws. In her cross-examination, P.W. 2 said that when she reached the place of occurrence had seen the occurrence, she became mentally and emotionally upset. The occurrence took place at about 6 P.M. By that time, the Sun had already set, but there was enough light to recognize. Though P.Ws. 1 and 2 claimed themselves to be the eye witnesses to the part of the occurrence, as per defence, they are not consistent but such submission cannot be accepted as there appears to be no major contradictions in their statement. In fact, the evidence of the P.Ws. 1 and 2 is quite consistent with the case of the prosecution, as stated in the Fardbeyan. 10. As per counsel for the appellant, P.W. 7, Rinti Mardi is the solitary eye witness who was minor. It is not safe to base conviction on party reliable witness, but such statement cannot be accepted. It will be evident from her testimony that she supported the case of the prosecution. In her deposition, she has deposed that when the deceased was lying on a Cot under a 'Kathal' (Jackfruit) tree, the accused came to him and wanted him to visit his house for treatment of his son by JHAR FOONK. When the deceased refused then the accused started abusing and threatened him. Thereafter, the accused went away and soon he came back with a Farsa in his hand and started assaulting the deceased. Having seen such occurrence, she rushed to the house of the Informant and informed the wife of the deceased that the accused was assaulting her husband. In course of her cross-examination, she deposed that the Informant after getting information, rushed from her house crying and shouting, but had not become unconscious. This witness stood to her evidence even during the cross-examination and no contradiction could be brought in her statement. P.W. 3, Raya Nayak is the witness to the inquest report in whose presence, the same was prepared by the Police upon which he had put his thumb impression. In his deposition, P.W. 3 has deposed that the deceased was his brother who was done to death in the evening hours while the Sun was to set. At that time, he was away on his duty, but when he returned from his duty came to know about the occurrence. In his deposition, P.W. 3 has deposed that the deceased was his brother who was done to death in the evening hours while the Sun was to set. At that time, he was away on his duty, but when he returned from his duty came to know about the occurrence. He had gone to the place of occurrence where he found the deceased lying dead. He further stated that the Police seized the blood stained soil and prepared a seizure list in his presence. P.W. 4, Kumar Hembram in his deposition has deposed that he was sleeping in his house at the time of occurrence. Pandu Hembram (P.W. 5) came to call him. He came to know from Pandu Hembram that the accused had killed the deceased. Thereafter, he went near the house of Lakhan Mardi and found the dead body of the deceased in the Angan of Lakhan having injuries on the neck, arms etc. of the deceased. P.W. 5, Pandu Hembram stated that when he was in his house, he was informed by one Tusa that the deceased had been done to death, wherein after he went near the house of Lakhan Mardi and found the dead body of the deceased having cut injuries on the neck, cheek and the arms and the blood was oozing out. He stated that he had informed Kumar Hembram (P.W. 4) about the murder of the deceased. P.W. 6, Lakhan Mardi in his deposition stated that he had gone out on the date of occurrence and when he returned at about 7 PM., could come to know of the occurrence and saw the dead body of the deceased in front of the house while the wife of the deceased and her daughter were crying. 11. From the testimonies of P.Ws. 4, 5 and 6, it will be evident that the deceased was lying in front of the house of Lakhan Mardi, as is the case of the prosecution. P.W. 9 in his evidence has also described the place of occurrence to be a place in front of the house of Lakhan Mardi where the body of the deceased was found. According to him, he had recorded the Fardbeyan of the Informant, had prepared the inquest report upon which he took the L.T.I. of the witnesses. P.W. 9 in his evidence has also described the place of occurrence to be a place in front of the house of Lakhan Mardi where the body of the deceased was found. According to him, he had recorded the Fardbeyan of the Informant, had prepared the inquest report upon which he took the L.T.I. of the witnesses. He seized the blood stained soil from the place of occurrence and prepared the seizure list in presence of the witnesses and recorded the statement of witnesses. He further stated that he conducted raid in the house of accused from where in presence of the witnesses, he had recovered and seized blood stained Farsa from the court-yard of the house concealed under bush. This statement is corroborated by P.W. 6, who is also a seizure list witness. 12. From the testimonies of the witnesses, as discussed above. it will be evident that the P.W. 1 has corroborated the statement of the Informant (P.W. 2), as recorded in the Fardbeyan. This is further fortified by the evidence of the independent eye witness, Rinti Mardi (P.W. 7) who had seen the occurrence. Her testimony is unshakable, reliable, consistent and praiseworthy and solely upon her evidence, the conviction can be based even if testimonies of P.Ws. 1 and 2 are not taken into account. Their evidence is also corroborated by the medical evidence wherein the doctor found four sharp cutting injuries and opined that the injuries may be caused by Farsa. When considered all the pros and cons of the prosecution case and the evidence appearing against the accused, which have been meticulously considered and discussed by the learned court below, I find that there is no illegality in the impugned judgment and order of conviction and sentence passed by the learned court below which do not require interference by this Court. 13. There being no merit in this criminal appeal, it fails and is, accordingly, dismissed. The judgment and order of conviction and sentence passed by the learned 3rd Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 571 of 1995, arising out of Parsudih P.S. Case No. 165 of 1995 corresponding to G.R. Case no. 1430 of 1995 is hereby confirmed.