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2006 DIGILAW 93 (JHR)

Barka Soren v. State of Bihar (Now Jharkhand)

2006-02-06

M.Y.EQBAL, N.DHINAKAR

body2006
By Court.- The appellants, two in number, were tried before the 3rd Additional Sessions Judge, Dumka for offences punishable under sections 302/34 of the Indian Penal Code on the allegation that they joining with Arjun Soren (absconding during trial) committed murder of Manjhi Soren in furtherance of their common intention. The trial Judge, finding both the appellants guilty, as charged, sentenced each of them to imprisonment for life. Hence this appeal. 2. The facts necessary to dispose of the appeal are as follows: 3. The 1st appellant, Barka Soren, is the brother of the 2nd appellant Kohen Soren and the said 2nd appellant Kohen Soren is the father of deceased Manjhi Soren. P.W 5 Pano Soren is the daughter of the 2nd appellant and hence sister of the deceased. Arjun Soren who was absconding during trial is the brother of P.W 5. P.W 3 Budin Hembram is the wife of 2nd appellant and mother of P.W 5 and the deceased. 4. The case of the prosecution is that there was a dispute between the deceased and Arjun Soren in respect of certain lands and that the 2nd appellant Kohen Soren was living separately with Arjun Soren while P.W 3, P.W 5 and the deceased were living separately in another house. Kohen Soren, the 2nd appellant did not want to give the land to the deceased and it is said to be motive for the occurrence, which took place at noon on 19.8.1983. 5. On 19.8.1983 at noon, P.W 5 Pano Soren was present in the house. Both the appellants and the absconding accused Arjun Soren after tying the deceased to the cot caused injuries on his person and ran away from the place. She raised alarm, which brought witnesses to the scene of the occurrence. They chased the appellants and Arjun Soren, who were seen running away from the place of the occurrence, and the witnesses succeeded in apprehending the 1st appellant Barka Soren. Thereafter, Fardbeyan, Ext. 3 was given by P.W 5 to, the police officer, which was registered as FIR at the police station. 6. Investigation was taken up by the police officer and the dead body was sent for post mortem. The doctor on examining the dead body found injuries and issued post mortem certificate Ext. 6 with his opinion that the death is on account of injuries found on the dead body. 7. 6. Investigation was taken up by the police officer and the dead body was sent for post mortem. The doctor on examining the dead body found injuries and issued post mortem certificate Ext. 6 with his opinion that the death is on account of injuries found on the dead body. 7. After the completion of investigation, the final report was filed against the appellants. 8. Learned counsel appearing for the appellants submits that since PW 3, mother of the deceased, was having illicit relationship with Pradhan Tudu, the deceased Manjhi Soren was murdered at the instance of P.W 3 by some unknown persons. The learned counsel, therefore, submits that the trial court ought to have accepted the defence version and acquitted the appellants. 9. We have heard Mr. M.A. Khan, learned counsel for the State. 10. It is not in dispute that there was a dispute between the appellants and the deceased as regards the enjoyment of certain landed property and that they were living separately. The prosecution in order to establish that on account of the above motive the appellants caused death of the deceased examined PW 5 as a witness to the occurrence. We have also noticed that P.W 5 is the daughter of the 2nd appellant and brother of the absconding accused Arjun Soren. Her evidence indicates that the appellants caused injuries on the deceased and thereafter attempted to run away from the place. It also shows that on hearing her cries, the villagers gathered and apprehended the 1st appellant, Barka Soren and later investigation was taken up. PW5, being closely related not only to the deceased but also to the 2nd appellant as she is daughter of the 2nd appellant, we have no reason to say as to why her evidence should be rejected. It is common knowledge that no daughter will come forward to depose falsely to implicate her father in a give offence of murder. The defence, by making wild suggestion to P.W 5 that deceased was murdered by some unknown person at the instance of PW 3 who was having illicit relationship with Pradhan Tudu, cannot ask the Court to accept that the deceased was murdered by unknown person at the instance PW 3. The defence, by making wild suggestion to P.W 5 that deceased was murdered by some unknown person at the instance of PW 3 who was having illicit relationship with Pradhan Tudu, cannot ask the Court to accept that the deceased was murdered by unknown person at the instance PW 3. The learned trial Judge rightly found that the allegation was made merely in the form of a suggestion to P.W. 5 and the trial Judge also rightly noticed that P.W. 3 during the relevant time was 50 years old and hence the suggestion by the defence could only be treated as an after thought and wild in nature. 11. On going through the evidence of P.W. 5 we find that her evidence does not suffer from any illegality or irregularity. It is, no doubt, true that the prosecution did not examine the doctor who had conducted autopsy but on the contrary it allowed post mortem certificate, issued by him to be marked as Ext. 6 in terms of Section 294 of the Code of Criminal Procedure without raising any objection. The defence having allowed Ext. 6 to be marked, as document without any objection under section 294 of the Code of Criminal Procedure cannot, at the appellant stage, contend that the non-examination of the doctor who conducted the autopsy, has prejudiced the defence. We, therefore, reject the defence version and accept the prosecution case. In our view the trial court rightly convicted the appellants. 12. The appeal is, accordingly, dismissed. It is reported that the appellants are on bail, their bail bonds are cancelled. The 3rd Additional Sessions Judge, Dumka will take all steps to commit the appellants to prison.