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2005 DIGILAW 480 (JHR)

State Of Jharkhand v. Dasrath Sao

2005-06-29

HARI SHANKAR PRASAD, R.K.MERATHIA

body2005
JUDGMENT Hari Shankar Prasad, J. 1. Death Reference No. 1 of 2004 arise out of the judgment of conviction and sentence dated 28th October, 2004 passed in Sessions Trial No. 184 of 1998 whereby and where under Shri Subodh Kumar, learned Additional Sessions Judge, (Fast Track Court), Palamau at Daltonganj has convicted all the appellants, namely, Dasrath Sao, Lalan Sao, Ramjit Sao, Butter Sao, Suresh Sao and Kailash Sao guilty under Sections 147, 148, 449 and 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code for committing murder of Nepuri Devi, Mano Devi, Malti Kumari, Lalti Kumari, Kuldeep Sao and Dilip Sao. 2. After hearing on the quantum of sentence, all the appellants were sentenced to be hanged by neck till death. 3. Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, the appellants have preferred this appeal, whereas learned Additional Sessions Judge, Palamau by his letter being No. 242, dated 3.11.2004 has referred death sentence awarded to the appellants for confirmation under Section 366(A) of the Code of Criminal Procedure. 4. The case of the prosecution, which is based on the basis of fardbeyan of the informant, namely, Bishawambhar Sao (PW 13) recorded by S.I. S.P. Singh (PW 16) at the place of occurrence on 20.9.1997 at about 1.00 a.m. in presence of witnesses Nankeshwar Sao (PW 2) and Amrit Sao, is that daughter-in-law of the informants uncle as well as wife of appellant No. 2, Lalan Sao, was blessed with a female child and as she was ill from before, she died on 19.9.1997 at Aurangabad hospital in which many persons attended her funeral ceremony. It is alleged that on the same day at about 11.30 p.m., Mohar Sao approached the house of the informant and asked his mother Nepuri Devi to open the door, on which she and Mano Devi @ Adarmania Devi opened the door and all of a sudden, Mohar Sao (since deceased) caught hold of the tuft of Mano Devi and dragged her to the courtyard of the informant. Similarly, Dasrath Sao, Butter Sao, Ramjit Sao and Lalan Sao armed with tangi, basula and garasha followed Mohar Sao to the courtyard. It is further alleged that Suresh Sao, Bilash Sao (since deceased) and Kailash Sao joined hands with Mohar Sao (since deceased) and the other aforesaid appellants. Similarly, Dasrath Sao, Butter Sao, Ramjit Sao and Lalan Sao armed with tangi, basula and garasha followed Mohar Sao to the courtyard. It is further alleged that Suresh Sao, Bilash Sao (since deceased) and Kailash Sao joined hands with Mohar Sao (since deceased) and the other aforesaid appellants. It is also alleged that informant and his mother Nepuri Devi raised cries, but in the meantime Dasrath Sao gave blow by basula on the neck and cheek of Nepuri Devi and cut her due to which, she fell down. Similarly, Butter Sao, Ramjit Sao, Lalan Sao, Bilash Sao and Kailash Sao also entered into the room of the deceased persons and took out and dragged Malti Kumari, Lalti Kumari, Kuldip Sao and Dilip Sao to their courtyard and gave tangi and garasha blow on Mano Devi and committed her murder. It is further alleged that Butter Sao and Ramjit Sao committed murder of Malti Kumari by giving tangi blow, Lalan Sao and Bilash Sao also participate in the murder of Malti Kumari by giving tangi blow, Kailash Sao is alleged to have committed murder of Dilip Sao with tangi, whereas Lalan Sao is alleged to have committed murder of Kuldip Sao with tangi. It is mentioned in the FIR that at the time of occurrence, besides there being moonlit night, dhibri was burning. According to the informant, he had seen the occurrence and had also seen the accused persons committing murder of the aforesaid deceased in his courtyard in the light of dhibri which was burning and also in the moonlit night. It is there in the FIR that on the alarm raised by the informant and the deceased, his uncle Nankeshwar Sao (PW 2) and cousin Amrit Sao (PW 1) came in the courtyard and saw the occurrence and identified the accused-appellants and these two persons namely Nankeshwar Sao and Amrit Sao have put their LTI on his fardbeyan. On the basis of fardbeyan (Ext. 2) which was recorded by I.O. S.P. Singh on the same day at. Chhatarpur Police Station and as per endorsement thereon, it was registered Chhatarpur P.S. Case No. 75 of 1977 dated 20.9.1977 (Ext. On the basis of fardbeyan (Ext. 2) which was recorded by I.O. S.P. Singh on the same day at. Chhatarpur Police Station and as per endorsement thereon, it was registered Chhatarpur P.S. Case No. 75 of 1977 dated 20.9.1977 (Ext. 5) on the same day at 10.00 a.m. While investigation was going on, out of eight (8) named accused persons, two accused namely Bilash Sao and Mohar Sao died during the course of investigation and accordingly charge sheet was submitted after investigation against six persons only. 5. The learned Court below framed charges against the accused persons and framed many issue for their determination beyond all reasonable doubt and ultimately came to a finding that the appellants are guilty under the aforesaid sections and accordingly convicted and sentenced them to capital punishment and at the same time, learned Court below held that since capital punishment is being awarded to the convicts, no separate sentence is being giving under Sections 148 and 449 of the Indian Penal Code. 6. Prosecution has examined sixteen (16) witnesses in this case. Amrit Sao and Nankeshwar Sao who were referred to in the fardbyan as eye-witnesses, have turned hostile. PW 3 is Dr. N.C. Agrawal who did autopsy on the dead body of Nepuri Devi. PW 4 is Dr. M.P. Singh who did postmortem examination on the dead body of Dilip Sao. PW 5 is Dr. Sitaram Choudhary who did autopsy on he dead body of Mano Devi @ Adarmania Devi. PW 6 is Shyam Khatik. PW 8 is Safruddin Mian. PW 9 is Surajdeo Paswan, PW 10 Md. Reyaz, PW 11 is Dr. Kundan Prasad who conducted postmortem examination on the dead body of Lalti Kumari. PW 12 is Dr. K.M. Sah who did postmortem examination on the dead body of Kuldip Sao, PW 13 is the informant himself. PW 14 is Dr. Vijay Kumar Singh who did postmortem examination on the dead body of Malti Kumari. PW 15 is a formal witness and PW 16 is Sudhir Prasad Singh who is I.O. of the case. 7. PW 13 (informant) is aged about twelve (12) years on 16.3.1999 but the occurrence is dated 19.9.1997 and therefore, on the alleged date of occurrence, he was aged in between 9 to 10 years. PW 15 is a formal witness and PW 16 is Sudhir Prasad Singh who is I.O. of the case. 7. PW 13 (informant) is aged about twelve (12) years on 16.3.1999 but the occurrence is dated 19.9.1997 and therefore, on the alleged date of occurrence, he was aged in between 9 to 10 years. He has given his evidence and supported the prosecution case and has also specifically stated about the role each of the appellants played in commission of murder of deceased and who committed murder of whom. He has given his evidence and was cross-examined at length but he was not shaken in cross-examination according to the learned Court below and on perusal of evidence of this witness, we, too, find that he has not been shaken in his cross-examination which was done at very length. His evidence has even been supported by the Doctor who conducted postmortem examination on the dead bodies of the deceased and the weapons used by the assailants have been supported by the doctors, as stated by PW 13 and, therefore, doctors in their respective evidence, have also supported the ocular evidence as seen by PW 13 during the course of occurrence which took place. 8. Besides PW 13, who is not only informant of the case but also an eye- witness of the case and all the deceased who are said to have been murdered by the appellants are related to him. So far as other witnesses are concerned, PWs 1 and 2 who are said to be the eye-witnesses and who had put their respective signatures on the fardbeyan (Ext. 2), have turned hostile and have not supported the prosecution case. PW 1 is uncle of PW 13 (informant) and PW 2 is the cousin of the PW 13, who as per FIR, has come to the P.O. on hearing cries of Nepuri Devi and PW 13 and are said to have seen the occurrence but they have not supported the prosecution case. PW 10 Md. Reyaj has been declared hostile. So far as Dr. N.C. Agrawal (PW 13) is concerned, he conducted postmortem examination on the dead body of Nepuri Devi. PW 4 is Dr. M.P. Singh. He conducted postmortem examination on the dead body of Dilip Sao. PW 5 is Dr. Sitaram Choudhary. He conducted postmortem examination on the dead body of Mano Devi. PW 11 is Dr. So far as Dr. N.C. Agrawal (PW 13) is concerned, he conducted postmortem examination on the dead body of Nepuri Devi. PW 4 is Dr. M.P. Singh. He conducted postmortem examination on the dead body of Dilip Sao. PW 5 is Dr. Sitaram Choudhary. He conducted postmortem examination on the dead body of Mano Devi. PW 11 is Dr. Kundan Prasad. He conducted postmortem examination on the dead body of Lalti Kumari, PW 13 is Dr. K.M. Sah. He conducted postmortem examination on the dead body of Kuldip Sao and PW 14 is Dr. Vijay Kumar Singh. He conducted postmortem examination on the dead body of Malti Kumari and all of them have found injuries on the dead bodies of the deceased caused by sharp cutting weapons, may be tangi, etc. PW 13 has given similar evidence about the weapons used in commission of murder of the deceased and, therefore, evidence of PW 13 is corroborated by the evidence of all the doctors who conducted postmortem examination on the dead bodies of the deceased. 9. Evidence of PW 16 is also material because he investigated the case and inspected the P.O. and found dead bodies of the deceased lying in the courtyard of the house of the informant and he also found sufficient quantity of blood lying there at the place of occurrence where dead bodies of the deceased were lying. He also sized one of the blood stained weapons used in the commission of murder from one of the assailants. From the evidence of PW 16, it also appears that occurrence at about that time at that very place and also from the recovery of one weapon from the possession of the appellants goes to show this nature of weapon was used in committing murder of the deceased. 10. Mr. Rajan Raj, learned Counsel appearing on behalf of the opposite parties of Death Reference No. 1 of 2004 submitted that the is one witness, namely, PW 13 who supported the prosecution case, but at the same time he submitted that evidence of PW 13 is not to be accepted on the ground such as, at the time of his examination, the learned Court below did not ascertain by putting some question to him whether he understands and gives proper answers or not and thus, he did not record evidence of PW 13 in a proper way. He did not ascertain whether he understands the facts and also in a position to answer the questions properly and further that whether he is actually tutored witness or not. According to the learned Counsel, his evidence should have been recorded in that very way, but on the other hand, the learned Court blow administered oath to him and started recording his evidence and on the basis of such untested evidence of such witness, he learned Court blow relied on the evidence of PW 13 and has recorded findings of conviction and has even awarded capital punishment. He also placed reliance upon . The learned Counsel had submitted that evidence of such witness is full of doubt as he can easily be tutored and when a child witness is tutored, then his evidence becomes very harmful for the defence because in that case, he forgets to tell truth but only states the things which has been tutored to say and, therefore, scrutiny of a child witness is to be done very cautiously and carefully and if it is found that his evidence is full of suspicion and he has actually been tutored, then his evidence should not be accepted. He further submits that in the instant case, PW 1 who happens to be uncle of PW 13, a child witness and PW 2, who happens to be the cousin of PW 13, have turned hostile and even PW 10 Md. Reyaz has also turned hostile and they have not supported the prosecution case. So far as PWs 1 and 2 are concerned, they are said to be eye-witness but they have turned hostile and, therefore, in the background that persons related to PW 13 who had seen the occurrence and had even put their respective signatures on the fardbeyan, have turned hostile; this is enough to discard the evidence of PW 13. Besides proper procedure has not been adopted in recording the evidence of PW 13. Besides proper procedure has not been adopted in recording the evidence of PW 13. But the case law relied upon the learned Counsel for the opposite parties of Death Reference No. 1 of 2004, also says that a child witness if found competent to depose to the facts and reliable one, such evidence could be based for conviction and in other words, in absence of other evidence of child witness can be considered under Section 118 of the Indian Evidence Act provided such witness is able to understand questions and able to given rational answers thereon. Evidence of a child witness and credibility thereto would depend upon circumstances of each case and only precaution which the Court should bear in mind while assessing the evidence that the evidence must be reliable one and he/her must be like any other competent witness and there is no likelihood to be tutored. It is true that before he is examined, it is duty of the Court to hold preliminary examination under Section 118 read with Section 4 Proviso of the Oaths Act, 1969, but absence of such examination does not make his evidence inadmissible and the appellate Court or trial Court can even ascertain his competency. In this connection, reliance may be placed upon the case of Kabiraj Tuddu v. State, reported in 1994 Cr LJ 432 : 1994 (2) East Cr C 37 (Gau). Reliance may also be placed upon Narayan v. State, reported in Cr LJ 1752 (Bombay). Hence, failure or omission on the part of the learned trial Court to hold preliminary examination under Section 118 read with Section 4 Proviso of the Oaths Act, the evidence of PW 13 cannot be discarded on this score, if otherwise his evidence is found reliable and trustworthy. We have already held in para 7 of this judgment that PW 13 has deposed and has been cross-examined at length but he has not been shaken in his cross-examination and he has fully supported the prosecution case and, therefore, is competent witness. 11. The evidence of PW 13 has even been assailed both by Mr. Raj an Raj, learned Counsel for the opposite parties in Death Reference and Mr. P.C. Tripathy, learned Counsel appearing on behalf of the appellants of Cr. 11. The evidence of PW 13 has even been assailed both by Mr. Raj an Raj, learned Counsel for the opposite parties in Death Reference and Mr. P.C. Tripathy, learned Counsel appearing on behalf of the appellants of Cr. Appeal No. 1925 of 2004 that PW 13 is a witness who is son of the deceased Nepuri Devi and brother of other deceased and, therefore, he is the most interested witness. It was also pointed out by them that there is no independent witness in this case and those who were close relation of PW 13 and the deceased, have turned hostile and their turning hostile has got meaning because they did not see the occurrence nor this PW 13 also saw the occurrence because when assailants were sufficient in number, there was moonlit night besides dhibri was burning and from the description of the P.O., it can safely be said that there was no scope for this PW 13 to escape from the eyes of the assailants and further that they were knowing family members of the deceased very well and that is why they dragged each one of the deceased to the courtyard and are said to have inflicted tangi or basula injuries causing instantaneous death of the deceased and in that circumstances it was difficult for PW 13 to escape from the eyes of the assailants because it has come in the evidence also that he was also crying along with Nepuri Devi when Mohar Sao (since dead) entered the house and subsequently Mohar Sao was followed by other appellants and, therefore, he could not have escaped from the searching eyes of the assailants. But on the other hand, it will appear from the evidence of PW 13 that he had gone to the P.S. along with Chaukidar at the dead of night, brought the police to his house and gave his statement there, on the basis of which the FIR was registered and there was no delay in sending FIR to the Court concerned and all these things happened in such a quick succession that it leaves no doubt that he was present at the place of occurrence and in such short span of time, he could not have been tutored to give fardbeyan (Ext. 2) narrating the entire occurrence and from the fardbeyan it also appears that PW 13 has actually seen the occurrence because if one is tutored and he has not actually seen the occurrence and he is a child witness, then his statement will not be like that as it appears from the reading of the fardbeyan (Ext. 2). Both the counsel tried to draw our attention to the statement of PW 13 where he has stated that naxalites used to come and extend threat to them and they have submitted that it is actually the handiwork of the naxalite and since these appellants were on litigating terms with PW 13 and his family members, that is why they have been falsely implicated in this case. They have also submitted that proceeding under Scion 147 of the Indian Penal Code is pending between the parties and on account of that enmity, these appellants have been implicated at the instance of PWs 1 and 2 and, at the trial stage PWs 1 and 2 knowing fully well that story is a planted one, have not supported the prosecution case but they have tutored this PW 13 to such an extent that he supported prosecution case. This point does not appear to be convincing because of the fact that PW 13, first of all, claimed to have seen the occurrence and other point is that even if he has been tutored to say like this, but he could not have stood test of cross-examination and must have been shaken by the counsels appearing on behalf of the appellants and being aged 12 years at the time of deposition, he stood test of cross-examination and was not shaken in cross-examination, also goes to show that he has actually seen the occurrence with naked eyes and, therefore, he could stand the test of cross-examination and fully supported the prosecution case. Since it was dead of night, other independent witnesses were not available and motive is there. As per fardbeyan (Ext. 2) mother of the informant is alleged to have practiced witchcraft on the wife of the appellant Lalan Sao, as a result of which, she died and that was the result of the whole carnage and motive is also there for commission of occurrence. As per fardbeyan (Ext. 2) mother of the informant is alleged to have practiced witchcraft on the wife of the appellant Lalan Sao, as a result of which, she died and that was the result of the whole carnage and motive is also there for commission of occurrence. Some discrepancies are s aid to have been pointed out in the evidence of PW 13 but the discrepancies which have been pointed out appear to be minor in nature and such discrepancies do occur in evidence of witness and, therefore, these discrepancies should be ignored. 12. Mr. Rajan Raj, learned Counsel for the opposite parties of Death Reference No. 1 of 2004 submitted that the learned trial Court has awarded capital punishment to the appellants but this is not the rarest of rare case and appellants should not have been awarded capital punishment. His point of argument was that Nepuri Devi (deceased) used to practice witchcraft and due to such witchcraft played on the family members of Lalan Sao, his wife died and several persons attended the funeral ceremony of the wife of Lalan Sao and being enraged or being annoyed with the role or with feeling that such witchcraft played by Nepuri Devi, has caused death of the wife of Lalan Sao, they were very much agitated and in a hit of temper, they came to the village and in a dramatic way, knocked at the door and requested to open the door and demanded wood as it has fallen short for burning the dead body of the wife of Lalan Sao. Thereafter whole occurrence . took place and, therefore, murder of the deceased if it is believed to have been committed by these appellants, cannot be said to be a planned one but in a hit of temper. All these things happened and, therefore, in such a case capital punishment should not be awarded. Although so many persons are alleged to have been murdered, but still this is not the case where capital punishment should be awarded. In this connection, reliance was placed upon and drew out attention to Para 14, which is quoted herein below :-- 14. A plea was put in for reduction of sentence. Although so many persons are alleged to have been murdered, but still this is not the case where capital punishment should be awarded. In this connection, reliance was placed upon and drew out attention to Para 14, which is quoted herein below :-- 14. A plea was put in for reduction of sentence. Ordinarily, this Court, in exercise of its powers under Article 136 of the Constitution does not interfere with a sentence awarded by a Sessions Judge and upheld by the High Court; but, in this case, there are some special features which we cannot ignore. Even according to the prosecution, the murder of Gurdarshan Singh by the appellant was not premeditated. The act of firing at him appears to be that of a hot- headed persons who was incited to do so by his father. The murder was not in any way cruel or brutal. In all these circumstances, we think that the ends of justice would be met if the lesser penalty prescribed by law is awarded to the appellant. Consequently, while upholding the conviction, we allow the appeal to the extent that the sentence of death is set aside and, instead, the appellant is sentenced to imprisonment for life. and submitted that here in the instant case, even evidence is believed to be against the appellants, it will be clear that the murders which have been committed were not preplanned but in a hit of temper, this occurrence has taken place and in such situation as reported in this case laws (supra), the appellants deserve life imprisonment and not capital punishment. Reliance has also been placed upon 2002 (2) PLJR 432 , State of Bihar v. Rajo Yadav; 2002 (2) East Cr C 88 (SC): 2002 (2) PLJR (SC) 245, Ashok Kumar Pandey v. State of Delhi and 2003 (1) East Cr C 131 (Jhr) : 2003 Cr LJ 1739, State of Jharkhand v. Anil Sharma. 13. On the other hand, learned A.P.P. has relied upon a number of cases, reported in 2000 Cr LJ 3954, Ram Deo Chauhan and Anr. 13. On the other hand, learned A.P.P. has relied upon a number of cases, reported in 2000 Cr LJ 3954, Ram Deo Chauhan and Anr. v. State of Assam and , Govindaswami v. State of Tamil Nadu and submitted that when a man becomes a beast and menance in the society, he can be deprived of his life, according to the procedure, established by law, as Constitution itself has recognised the death sentence as a permissible punishment for which a sufficient institutional provisions for an appeal, reprieve and the like have been provided under the law. It is true that life sentence is the rule and death sentence is an exception and imposition of death sentence to appellants, Dasarath Sao, Lalan Sao, Ramjit Sao, Butter Sao, Suresh Sao and Kailash Sao, should not be interfered with. 14. The appellants have been charged under Section 302/149 of the Indian Penal Code besides other sections for commission of murder of six persons, namely, Nepuri Devi, Mano Devi, Malti Mumari, Lalti Kumari, Dilip Sao and Kuldip Sao and all the murders have been caused by sharp cutting weapons and one of such weapon was recovered from the premises of the appellant No. 2 Lalan Sao. Charges have been framed and there is specific allegation against each of the appellants as who committed murder of whom and, therefore, separate charge under Section 302 of the Indian Penal Code should have been framed against each of the appellants. But here in the instant case, all the appellants have been charged under Section 302/149 of the Indian Penal Code and this irregularity in framing charges, however, will not be fatal for the prosecution because all the appellants have been roped in under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and, therefore, framing of charge is not fatal. 15. 15. Having heard submission of learned Counsel for the parties and after going through the case laws cited on behalf of both the sides and also going through the materials on record, it is clear that murder was not pre-planned one because with the death of wife of appellant No. 2, a feeling emerged that his wife died as a result of witchcraft practiced on her by the deceased Nepuri Devi, they became so much agitated that they forgot that they are going to commit such crime in which not only Nepuri Devi has to be eliminated but her entire family members were to be eliminated and in this way, the appellants even committed murder of small children aged 3 to 4 years etc. In this way, the murder can be said to be brutal but the only mitigating circumstance is that they had become insane due to death of wife of the appellant No. 2 Lalan Sao, as a result of witchcraft said to have been practiced by Nepuri Devi (deceased) and, therefore, while finding no mercy for the appellants, we commute the death sentence to life imprisonment. 16. In that view of the matter, with this modification in sentence we confirm the judgment passed by the learned Court below and dismiss the appeal. R.K. Merathia, J. 17. I agree.