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2006 DIGILAW 943 (GAU)

Valalven son of late Vungluai v. State of Manipur

2006-10-26

M.B.K.SINGH, T.NANDA KUMAR SINGH

body2006
M.BK Singh, J. 1. This Jail appeal is directed against the judgment and orders dated 25.1.1999 and 27.1.1999 passed by the learned Additional Sessions Judge, Manipur West in Sessions Trial Case No.4/1995/2 of 1995 convicting the present two appellants, namely, Vanlalven and Nengliankhum for commission of the offence under section 302 IPC read with section 34 IPC and sentencing them to imprisonment for life. As per records, in the said Sessions Trial, a charge for the commission of the offence under section 302 IPC read with section 34 IPC was framed against the above said appellants alleging to the effect that on 28.11.1990 at about 5.00 pm, they in furtherance of their common intention committed murder of their half-brother T.Chingkhothang. Another charge for the commission of the offence under section 120-B IPC was framed as against the above said two appellants and one Tualkhanpau alleging to the effect that in between the 21st to 27th November, 1990, they agreed to do an illegal act , to wit- to murder their half-brother T.Chingkhothang . All of them pleaded not guilty in respect of the said charges. 28 PWs were examined on the side of the prosecution. On the basis of the materials before the court and after giving due opportunity to the defence, the learned Additional Sessions Judge, Manipur West passed the impugned judgment and order. 2. We have Mr. A.Modhuchandra, learned amicus curiae appearing on behalf of the said two appellants and Mrs. Ch.Bidyamani Devi, learned Addl.PP appearing on behalf of the respondent. The points to be considered are if the materials before the court are sufficient for passing the judgment and order and if any interference is warranted by this appellate court in respect of the impugned judgment and order. There is no dispute that the victim, T.Chingkhothang and two appellants were half-brothers being borne by the same father namely, Vunglui through his two wives. 3. Miss Vungswanching , PW No.1 and Miss Thangleilal @ Lalpoi, PW No.3 are the daughters of the said T.Chingkhothang. According to them ( PW No.1 and PW No.3), on 28.11.1990 at about 5.00 pm while they were at their house and while their parents were not there, their uncles namely, Vanlalven and Nengliankhum came there and enquired about their parents. Miss Vungswanching , PW No.1 and Miss Thangleilal @ Lalpoi, PW No.3 are the daughters of the said T.Chingkhothang. According to them ( PW No.1 and PW No.3), on 28.11.1990 at about 5.00 pm while they were at their house and while their parents were not there, their uncles namely, Vanlalven and Nengliankhum came there and enquired about their parents. Further, as per testimony of PW No.1 and PW No.3, after informing their uncles about the absence of their parents, PW No.1 left their house for calling their mother and PW No. 3 remained behind at their house with their two uncles. According to PW No.3, after the departure of her sister ((PW No.1) for calling their mother, she ((PW No.3) saw her father T.Chingkhothang coming back to their house and when her father entered into the house, her two uncles assaulted her father inside the kitchen of the house by saying that they were not happy with him and that they would kill him for getting all his properties. PW No.3 saw her two uncles dragging her father out from the kitchen to the courtyard and then her uncle, Vanlalven taking out a knife and stabbing her father 4-5 times in his abdomen and other parts of his body. According to the PW No.3, as a result of the said stabbing, her father, T.Chingkhothang fell on the ground at the courtyard and she raised hue and cry calling for help from her neighbours. Further, according to PW No.3, when one of her neighbours, namely, Mr.Ensong tried to intervene, the said Vanlalven told the said Mr.Ensong that it was their family matters and that he was not having any business to interfere. As per testimony of PW No.3, before their neighbours came there, her said two uncles left the place and when her elder sister (PW No.1) and mother (PW No.2) came, her injured father was taken to Chuchachandpur Hospital but he had already expired. As per testimony of PW No.3, her uncle Vanlalven left the cover of the said knife in the Kitchen. PW No.3 was cross-examined at length but her testimony was not shaken. 4. Miss Vungswangching ((PW No.1), Ngaizabung (PW No2) who is the mother of the said (PW No.1 and PW No.2) and widow of the deceased T.Chingkhothang, and T.Ensong ((PW No.5), who is the neighbour of the deceased, supported the testimony of PW No.3 substantially. PW No.3 was cross-examined at length but her testimony was not shaken. 4. Miss Vungswangching ((PW No.1), Ngaizabung (PW No2) who is the mother of the said (PW No.1 and PW No.2) and widow of the deceased T.Chingkhothang, and T.Ensong ((PW No.5), who is the neighbour of the deceased, supported the testimony of PW No.3 substantially. 5. According to PW No.2, on 28.11.1990, when she came back to her house after getting information from her daughter ((PW No.1) about the coming of Vanlalven and Nengliankhum in an angry mood , she (PW No.2) came to know from her second daughter, Lalpui (PW No3) about the occurrence . As per testimony of PW No.2 , after coming to know about taking away of her husband to the Hospital at Churachandpur , she ((PW No.2 ) and her two daughters (PW No.1 and PW No.3) rushed to the Hospital where they came to know that her husband had been declared as dead. Thereafter, she (PW No.2) lodged a report to the O.C., Churachandpur on the same day and exhibit P-1 is the said report. This report (Exhibit P-1) substantially corroborates the testimony of PW No.2 (informant). According to PW No.2, the cover of the knife left by the two culprits was seized by police on her production under seizure list Exhibit P-2. Further, according to PW No.2, the two culprits were having grudge as against her husband in respect of their village properties and chiefship. PW No.2 was cross-examined at length but her testimony was not shaken. 6. As per testimony of Vungswangching ((PW No.1), when she returned to her house after calling her mother, she found her younger sister Thangleilal sitting at the verandah. She (PW No.1) also saw many other persons at the courtyard. According to PW No.1, she (PW No.1) learnt from her younger sister (PW No3) about the killing of their father by their two uncles. Then, according to PW No.1), she and her mother went to the hospital where she came to know about the declaration of death of her father. PW No.1 was cross-examined at length but her testimony in respect of the material facts was not shaken. 7. Then, according to PW No.1), she and her mother went to the hospital where she came to know about the declaration of death of her father. PW No.1 was cross-examined at length but her testimony in respect of the material facts was not shaken. 7. As per testimony of T.Ensong (PW No.5), on 28.11.1990 at about 5.00 pm, he (PW No.5) got information from Miss Lalpoi ((PW No.3) about the fighting in between her father and her uncles, he (PW No.5) put on his dress and when he ((PW No.5) went outside, he (PW No.5) saw Miss Lalpui standing near the gate and her uncle Vanlalven stooping down over the body of T.Chingkhothang , who was lying on the ground. According to PW No.5, when he ( PW No.5) suddenly caught hold of the said Vanlalven from behind, the latter threatened him and he (PW No.5) ran away from there shouting for help. After sometime, he (PW No.5) saw the said Vanlalven and Nengliankhum leaving the place of occurrence by a bicycle. PW No.5 also saw picking up of the body of the injured T.Chingkhothang and taking him away to hospital in an auto-rickshaw. PW No.5 was also cross-examined at length but his testimony as regards material facts was not shaken. 8. On careful consideration of the statements of these witnesses (PW No.1, PW No.2, PW No.3 and PW No.5) , in our opinion, it is possible to believe their presence at the scene of occurrence or in such a situation as would make it possible for them to witness the facts disposed to them. We also do not find anything inherently improbable or unreliable in their evidence. Certain infirmities and discrepancies in the statements of these witnesses have been brought to the notice of this court. However, we find that most of the said infirmities and discrepancies were duly considered by the trial court and they were not found sufficient warranting rejection of their statements. We agree with the view of the trial court and there is no need of considering them again at length. We do not find any contradiction in their statements on material points. It is to be noted that due to lapse of time, minor discrepancies or omissions are bound to occur in the statements of witnesses but such trifling discrepancies are to be ignored as they are even test of truth. We do not find any contradiction in their statements on material points. It is to be noted that due to lapse of time, minor discrepancies or omissions are bound to occur in the statements of witnesses but such trifling discrepancies are to be ignored as they are even test of truth. Several persons giving their versions of transaction witnessed by them are naturally liable to disagree on minor points. Their powers of observation, experience or memory are not the same and honest difference are easily possible. It must be remember that there are discrepancies of truth as well of falsehood. It is the broad facts of a case and not the little details that they are to be considered in weighing evidence. There is no basis for having any reasonable doubt about the broad facts of the present case established by the statements of the said witnesses. It is also to be noted that different people behave and react differently in different situations. There cannot be set of rules of natural reaction. 9. These witnesses ((PW Nos.1, 2, 3 and 5) cannot be considered as chance witnesses. In fact, having regards to the time and place of such occurrence, their presences at the relevant time and the place of occurrence cannot be considered as unnatural. Though, the deceased might be having some dispute with the said Vanlalven and Nengliankhum regarding properties and village chief-ship, it is not likely that the two daughters, widow and the neighbour of the deceased T.Chingkhothang would deliberately omit to name the real assailants and substitute in their places the names of the enemies of the family out of malice. There is no sufficient basis for concluding that any of the said witnesses was having enmity with the two appellants as could induce them to give false evidence and to substitute the appellants as the murderers in place of the persons really guilty. The desire to punish the culprits would be so powerful in their minds that they would unhesitatingly name the real assailants and would not substitute in their places the enemies of the family though they were not concerned with the assault. 10. Apart from the above considerations, we also find other facts and circumstances supporting the prosecution. The desire to punish the culprits would be so powerful in their minds that they would unhesitatingly name the real assailants and would not substitute in their places the enemies of the family though they were not concerned with the assault. 10. Apart from the above considerations, we also find other facts and circumstances supporting the prosecution. On perusal of the impugned judgment and order, we find that the trial court, after due consideration of the materials before the court, concluded that the knife marked Exhibit MO-2 had been seized by the I.O. (PW No.26) at the instance of the said Vanlalven under seizure memo marked Exhibit P-6 in presence of witnesses PW No.4 and PW No.13 after recording his statement marked Exhibit P-5-A in presence of the said two witnesses. Though there are infirmities in the statement of Shri Ginzakhen (PW No.25), the learned Additional Sessions Judge, Manipur West rightly ignored them. Further, it is to be noted that as per testimony of Dr.S.Ngulzaual (PW No.12), who performed the post mortem examination on the dead body of T.Chingkhothang on 29.11.1990 in connection with the relevant FIR Case No. 714(11) 90 CCp, some of the injuries on the dead body might have been caused by the said knife marked Exhibit MO-2. The findings of the post mortem examination are found mentioned in the report marked as Exhibit P-8. Moreover, we also find that the findings in the said post mortem examination are consistent with the prosecution case. The testimony of PW No.12 was not shaken during his cross-examination. 11. The learned Additional Sessions Judge, Manipur West, after consideration of the testimony of the I.O. (PW No.26), Smt. Ngaizavung((PW No.2), Shri T.Chingzatuan,(PW No.19) and Smt. Nengchin (PW No.16) came to a finding that the I.O. (PW No.26) seized the cover of the knife on production by PW No.2 under seizure memo Exhibit P-2 on 2.12.1990 at the house of the deceased. As per testimony of PW No.3, the cover of the knife was left on the table of the dining room. The learned Additional Sessions Judge, Manipur West found that the seized knife being Exhibit MO-2 perfectly fitted in the seized cover marked Exhibit MO-1. This fact is also consistent with the case of the prosecution. 12. As per testimony of PW No.3, the cover of the knife was left on the table of the dining room. The learned Additional Sessions Judge, Manipur West found that the seized knife being Exhibit MO-2 perfectly fitted in the seized cover marked Exhibit MO-1. This fact is also consistent with the case of the prosecution. 12. When the I.O. visited the place of occurrence on the same day of the occurrence i.e. on 28.11.1990, he found a hat, fountain pen and blood stained earth. The I.O. seized the hat (Exhibit MO-12), fountain pen (Exhibit MO.13 and blood stained earth (Exhibit MO-14) from the place of the occurrence under seizure memo Exhibit P-10. The I.O. also prepared a sketch map with index. Further as per evidence before the court, the I.O. seized the blood stained coat (Exhibit MO 11) and blood stained trouser (Exhibit MO-12) which were removed from the dead body of T.Chingkhothang under seizure memo marked Exhibit P-5 in presence of PW No.16 and PW No.18. The said coat and shirt were found having cut hole marks. These findings are also consistent with the prosecution case about the manner in which the deceased was assaulted. 13. Further , we find that the learned Additional Sessions Judge, Manipur West , after due consideration of the materials before the court, concluded in effect that the present two appellants gave their confessional statements voluntarily under section 164 Cr.P.C and that the statements marked as Exhibit P-12 and 13 were their respective statements. The said statements are also found consistent with the prosecution case. We do not find any infirmity in the findings of the learned Additional Sessions Judge, Manipur West. We have also perused the statements of the Chief Judicial Magistrate (PW No.22) who recorded the confessional statements of two appellants. 14. We find that the learned Additional Sessions Judge, Manipur West, after due consideration of all the facts and circumstances established by the materials before the court, convicted the present two appellants in respect of the charge rightly for commission of the offence under section 302 IPC read with section 34 IPC. We are also of the opinion that the two appellants and said Tualkhanpau were rightly acquitted in respect of the charge for the commission of the offence under section 120-B IPC. In the result, this jail appeal is rejected. We are also of the opinion that the two appellants and said Tualkhanpau were rightly acquitted in respect of the charge for the commission of the offence under section 120-B IPC. In the result, this jail appeal is rejected. It is to be noted that this court took up the preliminary objection raised by the two appellants regarding the legality of the trial. The said objection was considered and disposed of on 27.2.2004 before taking up this appeal on merit. Send a copy each of this judgment to the two appellants through the Superintendent of Manipur Central Jail, Imphal for information and necessary action.