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Jharkhand High Court · body

2009 DIGILAW 243 (JHR)

Shiv Singh v. State of Jharkhand

2009-02-13

AMARESHWAR SAHAY, R.R.PRASAD

body2009
Judgment By Court.-The sole appellant has been found guilty for committing the murder of the deceased Mangru Oraon and, thereby, he has been convicted for the offence under Section 302 IPC and has been sentenced to undergo R.1. for life by the 1st Additional Judicial Commissioner, Khunti (Ranchi) in Sessions Trial No. 367 of 1995 by judgment dated 9.1.1997. This impugned judgment of the Trial Court is under challenge in this appeal. 2. The brief facts, leading to the present appeal, are that one Matias Khalkho (PW-4) in his fardbeyan lodged on 3.1.1995 at 5.30 A.M., alleged that on 2.1.1995 at about 4 p.m. he was in his house, at that time he heard "hulla" of village children that Mangru Oraon was being assaulted by Shiv Singh (the appellant) by means of sword. At this he came out and saw that the appellant Shiv Singh having a sword in his hand was assaulting Mangru Oraon with the said weapon. By the time he alongwith other villagers reached at the place of occurrence, Shiv Singh fled away from there after committing the murder of Mangru Oraon. The informant alleged that the appellant caused injuries on the neck, face and eyes of Mangru Oraon by means of a sword mercilessly due to which Mangru died at the spot. He further alleged that in the house of the deceased only small children were present and the wife of the deceased namely Josefin Lakra had gone out. The occurrence said to have been witnessed by the village children and others. 3. The police after recording the Fardbeyan, registered F.I.R. and after completion of investigation submitted charge-sheet. The case was thereafter, committed to the Court of Sessions, where charges were framed and the appellant was put on trial where he pleaded not guilty. 4. In course of trial altogether six witnesses were examined on behalf of the prosecution. Out of six prosecution witnesses, PWs-2, 3 and 4 are the eye-witnesses to the occurrence. PW-2 is Charwa Oraon, whereas PWs-3 and 4 namely Punai Oraon and Matias Khalkho are the sons of PW-2 Charwa Oraon. PW-1 Josefin Lakra is the widow of the deceased Mangru Oraon and she is a hearsay witness. PW-5 is Dr. Vijay Kumar Prasad, who did post mortem examination of the dead body of the deceased, whereas PW-6 is Nesar Ansari, a formal witness, who proved Ext.-4, i.e. the formal FIR. PW-1 Josefin Lakra is the widow of the deceased Mangru Oraon and she is a hearsay witness. PW-5 is Dr. Vijay Kumar Prasad, who did post mortem examination of the dead body of the deceased, whereas PW-6 is Nesar Ansari, a formal witness, who proved Ext.-4, i.e. the formal FIR. The Investigating Officer was not examined by the prosecution. The learned trial court on the basis of the evidence and materials on record, convicted and sentenced the appellant as already stated hereinabove vide impugned judgment, against which the present appeal has been preferred by the appellant. 6. Mr. Akhouri AnJani Kumar, learned counsel appearing for the appellant, challenging the conviction and sentence passed by the trial court submitted as follows:- (i) The learned trial court did not consider the discrepancy in the evidences of the prosecution witnesses. (ii) Due to non-examination of the Investigating Officer the defence has been greatly prejudiced. (iii) The weapon of assault, which was recovered in course of investigation by the Investigating Officer, was not sent to the Forensic Science Laboratory for its examination and therefore, the alleged recovery of the weapon at the instance of the appellant cannot be used against him in absence of examination of the Investigating Officer. In support of his submissions he has relied on a decision of this Court in the case of "Manghi Ho vs. The State of Bihar (now Jharkhand), reported in 2008(4) JCR 509 ". 7. Now, let us examine the oral evidences laid by the prosecution. PW-2 Charwa Oraon, who is the informant and an eye witness to the occurrence, has stated that on 2nd January, 1995 at about 4 P.M. when he was sitting at the door of his house and was enjoying sun, at that time he saw the appellant Shiv Singh crossing his house and, thereafter, he saw Mangru Oraon also coming from southern side. Soon thereafter, he saw Mangru being assaulted by the appellant by means of a sword on his neck. Mangru receiving the injuries fell on the ground. Some children were playing nearby. This witness in para-2 of his examination-in-chief stated that though he could not say as to why the appellant killed Mangru Oraon but at the same time he also stated that in his presence he killed Mangru by means of sword. Mangru receiving the injuries fell on the ground. Some children were playing nearby. This witness in para-2 of his examination-in-chief stated that though he could not say as to why the appellant killed Mangru Oraon but at the same time he also stated that in his presence he killed Mangru by means of sword. In cross-examination, he stated that the place of occurrence was only at a distance of 50-60 yards from his house where he was sitting. He also stated that the first sword blow was given by the appellant to Mangru when he was standing and, thereafter, when he fell down he was again given the sword blow by this appellant. 8. PW-3 Punai Oraon is another eye witness to the occurrence and he is son of P.W. 2 Charwa Oraon. He has corroborated the evidence of PW-2. He in an unambiguous term has stated that he saw the appellant committing the murder of the deceased from a distance of 20-22 yards. At that time the wife of the deceased was not in the village and she returned only on the 3rd day and thereafter, he narrated the story to her. He also stated that from the house of the appellant a sword was recovered and then a seizure list was prepared in which he also put his signature. In cross-examination, he has stated that sword, which was recovered from the house of the appellant was having blood stains. 9. PW-4 Matias Khalkho, who is the informant, has also repeated his statements made in the Fardbeyan and also corroborates the evidence of the other two eyewitnesses. He deposed that on 2.1.1995 at about 3 p.m. while after taking his meal he was enjoying sun heat, his daughter, who was playing outside, came and told him that the appellant Shiv Singh was assaulting Mangru by means of a sword. He came out of his courtyard and saw the accused assaulting the deceased by means of sword. Seeing the scene he became stunned. According to this witness, the appellant gave repeated blows of sword to the deceased. He further stated that the wife of the deceased was not in the village at that time. In his cross-examination this witness denied the suggestion that in order to grab the lands of the appellant; they have falsely implicated him in this case. 10. According to this witness, the appellant gave repeated blows of sword to the deceased. He further stated that the wife of the deceased was not in the village at that time. In his cross-examination this witness denied the suggestion that in order to grab the lands of the appellant; they have falsely implicated him in this case. 10. PW-1 Josefin Lakra, the widow of the deceased deposed that on 2nd January, 1995 she had gone to Raja Ullihatu to reach her daughter, who was studying there in a school and when she came back on 3rd January, 1995 in the night at 12 hours, she did not find her husband in the house. Her children Sanjay, Amardeep, Neelu and Pawan told her that their father was killed by the appellant Shiv Singh. She also stated that Punai and Charwa etc. also told her that Shiv Singh had killed her husband by means of a sword. 11. PW-5 Dr. Vijay Kumar Prasad, who conducted the post mortem examination of the dead body of the deceased Mangru Oraon found the following injuries:- (i) Sharp cut injury 6" x 5" x 2" horizontal on forehead, cutting the soft tissues, muscles bone and brain matter. (ii) Sharp cut injury 6" x 5" x 2" on face below both eyes cutting the soft tissues, muscles and bone. As per his opinion, the injuries found were ante mortem and caused by heavy sharp cutting weapon may be by a sword. Cause of death was shock and haemorrhage due to the injuries received by him and the injuries separately were sufficient to cause his death in ordinary course of nature. The time elapsed since death was within 40 hours. The evidence of the eye witnesses was fully corroborated by the evidence of the doctor PW-5. 12. No doubt, the Investigating Officer has not examined by the prosecution but nothing has been pointed out to us by the learned counsel for the appellant, as to what prejudice has been caused to the appellant due to non-examination of the Investigating Officer. The evidence of the eye witnesses was fully corroborated by the evidence of the doctor PW-5. 12. No doubt, the Investigating Officer has not examined by the prosecution but nothing has been pointed out to us by the learned counsel for the appellant, as to what prejudice has been caused to the appellant due to non-examination of the Investigating Officer. It is a settled law that only because of non-examination of the Investigating Officer, the prosecution case must fail, rather the law is that if the defence establishes that it was greatly prejudiced due to non-examination of the Investigation Officer as it could not bring certain facts before the Court which must have weighed in his favour in proving his innocence then certainly non-examination of the Investigating Officer would be a strong circumstance causing adverse effect on the prosecution case. Only because the Investigating Officer has not been examined, the whole prosecution case, which is based on specific and direct evidence, cannot be thrown out. 13. In the present case, we find that three eye witnesses have fully established the fact that in their presence the appellant caused the murder of the deceased by assaulting him by means of sword. 14. The plea raised by the appellant that the weapon of assault, which was recovered from the house of the appellant was not sent to the Forensic examination and therefore, his conviction under Section 302 I.P.C. is bad, is not acceptable to us in view of the fact that the prosecution case is based on specific and direct evidences of the eye witnesses, i.e. PWs- 2, 3 and 4, which have been duly corroborated by the medical evidence. The case law cited on behalf of the appellant is not applicable in the facts and circumstances of the prosecution case. 15. In our view, the learned trial court has rightly convicted the appellant for the charges under Section 302 IPC for committing the murder of the deceased Mangru Oraon. We do not find any error in the impugned judgment. Accordingly, by affirming the conviction and sentence passed by the trial court against this appellant, this appeal is dismissed.