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2009 DIGILAW 368 (JHR)

Jivan Tudu v. State of Jharkhand

2009-03-17

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT : The sole appellant Jivan Tudu has filed this appeal challenging the judgment of conviction and order of sentence dated 30.05.2000 and 31.05.2000 respectively, passed by 5th Additional Sessions Judge, Giridih in Sessions Trial No. 127 of 1999, whereby and whereunder he has been convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life. 2. The case of the prosecution in short as per the fardbeyan of Lala Soren (P.W.-6) is that on the date of occurrence i.e. 26.07.1998 at about 5:00 P.M. Munia Manjhiain was sitting in the village lane along with her daughter-in-law and 3-4 other women of neighbourhood and all were gossiping. In the meantime the appellant Jivan Tudu came there armed with farsa and gave 5-7 repeated blow on the head of the Nunia Manjhiain. When other women sitting there tried to rescue her, the appellant threatened them. Out of fear they fled away from there and raised alarm. Nunia succumbed to the injuries. After committing murder of Nunia the accused-appellant fled away along with farsa. The cause of the incident was sudden anger caused by Munia’s enquiring from Jivan Tudu who was going somewhere armed with farsa as to where he was going. 3. On the basis of aforesaid fardbeyan, Bengabad P.S. Case No. 48 of 1998 dated 26.07.1998 under Section 302 of the I.P.C. was instituted and police took up investigation. After completing the investigation, police submitted charge sheet against the appellant under Section 302 of the I.P.C. Thereafter cognizance was taken and the case was committed to the Court of Sessions as the said offence was exclusively triable by the Sessions Court. Learned court below framed and explained the charge to the accused under Section 302 of the I.P.C., to which he pleaded not guilty and claimed to be tried. 4. The prosecution had examined altogether 12 witnesses in support of its case. Some documents were also brought on record and exhibited in evidence :-Ext-1 Series – the signatures of witnesses on the Seizure List and Inquest Report, Ext-2 – Post-mortem Report, Ext-3 – the fardbeyand, Ext-3/1 & 3/2 – the signatures of witnesses on fardbeyand, Ext-4 – carbon copy of Inquest Report, Ext-5 – the Seizure List, Ext-6 – the formal F.I.R. Ext-7 – the endorsement on fardbeyan and Ext-8 challan of farsa. The prosecution had also brought the incriminating farsa as material Ext-I. 5. Learned court below, after considering the aforesaid evidences on record, convicted and sentenced the appellant as aforesaid. The present appeal has been filed assailing the impugned judgment on various grounds. 6. Shri Shekhar Sinha, Advocate appearing as Amicus Curiae submitted that the conviction of the appellant has been based on the statement of P.W.-1, P.W.-7 and P.W.-8 who claimed themselves to be the eye-witnesses of occurrence. But on appraisal of evidences of these witnesses, it appears that they fled away before the occurrence took place and thereafter returned to the place of occurrence after about half an hour. Therefore, they did not witness the entire occurrence. It is not safe to base conviction on their testimony. He further submitted that P.W.-2 has said that he had gone to the police station at 6-6:30 P.M. and had given statement before the Officer-in-Charge regarding the occurrence. The aforesaid statement of P.W.-2 was the First Information Report, but that has been suppressed and not produced in court. Suppression of that first information casts a serious doubt on the case of prosecution. Further, the farsa (Material Ext-I) has not been sent to forensic laboratory for chemical examination, and its use in commission of the crime could not be proved. He submitted that the prosecution had not been able to prove the charge levelled against the appellant beyond the shadow of all reasonable doubts. The impugned judgment of conviction and order of sentence thus cannot be sustained. 7. On the other hand, learned A.P.P. submitted that in view of the cogent, clear, consistent and unshaken testimony of P.W.-1, P.W.-7 and P.W.-8 coupled with seizure of blood stained farsa from the Aangan of appellant go to prove the charge against the appellant beyond the shadow of all reasonable doubts. There is no ground for interference with the impugned judgment, by this Court. 8. Having heard the said submissions, we have also carefully scrutinized the evidences available on record. P.W.-10 Dr. B.P.Singh has stated that on 27.07.1998 at about 11:00 A.M., he held autopsy on the dead body of deceased Nunia Manjhiain and found five incised wound on the scalp of deceased. He also found incised wound on the face and right arm of the deceased. In his opinion all the injuries are ante-mortem in nature and caused by sharp cutting weapon. He also found incised wound on the face and right arm of the deceased. In his opinion all the injuries are ante-mortem in nature and caused by sharp cutting weapon. According to him, the death was due to head injury. From the perusal of cross-examination of this witness, we find that his aforesaid statement remains intact and there is nothing to be disbelieved. The prosecution has been able to prove that the death of Nunia Manjhiain was homicidal. 9. Now, we proceed to consider as to whether the appellant has any hand in the commission of the said crime? This bring us to consider the other evidences available on record P.W.-1 Rani Devi, the daughter-in-law of deceased, P.W.-7 Mano Devi and P.W.-8 Manjhli Devi, had come forward to depose that on the date and time of occurrence, they were sitting in the village lane along with deceased and were gossiping. In the meantime Jivan Tudu came armed with a farsa and inflicted five repeated blows of farsa on the head of the deceased. Seeing that they fled away from the place of occurrence out of fear. However, they again returned there when the villagers arrived and informed the villagers about the occurrence. From the cross-examination of these witnesses, we find that they remained consistent with regard to the manner of occurrence and they stood to the test of cross-examination. There is nothing in their entire testimony to doubt their credibility. 10. On perusal of evidence of P.W.-2, P.W.-3, P.W.-5, P.W.-6 and P.W.-9, we find that they have also supported the version of P.W.-1, P.W.-7 and P.W.-8. They stated that when they arrived at the place of occurrence, the aforesaid three eye-witnesses narrated the incidents that the appellant had assaulted the deceased with farsa. These witnesses also stated that they have also found several cut injuries on the head of the deceased. The ocular testimonies of P.W.-1, P.W.-7 and P.W.-8 further find full support from the medical evidence because the Doctor had also found incised injury on the head and face of the deceased which, according to the doctor, were caused by sharp cutting weapon. The objective finding of Investigating Officer (P.W.-11) at Paragraph-6 specifically state that at the place of occurrence, he found sufficient amount of blood lying there. At Paragraph-7, he had also stated that he seized blood stained earth from there. The objective finding of Investigating Officer (P.W.-11) at Paragraph-6 specifically state that at the place of occurrence, he found sufficient amount of blood lying there. At Paragraph-7, he had also stated that he seized blood stained earth from there. The I.O. had also seized a blood stained farsa from the Aangan of appellant. The said farsa was also produced in court which has been marked as Material Ext-I. Thus the aforesaid evidence of I.O. also corroborates the statements of eye-witnesses P.W.-1, P.W.-7 and P.W.-8. 11. Now, coming to the submission of learned counsel for the appellant that the statement of P.W.-2 which was recorded by the I.O. at the police station has not been produced, it is relevant to mention that P.W.-2 had stated that while giving description about the occurrence, he had not disclosed the name of Jivan Tudu nor he had stated who was killed. It is by now well settled that if a cryptic information with regard to the occurrence was given to the police, the same cannot be treated as First Information Report. Since, information to the police given by the P.W.-2 appears to be vague, therefore, in our view, the said statement cannot be treated as First Information Report. Thus, the submission of learned counsel for the appellant that the First Information Report has been suppressed by the prosecution has no leg to stand and therefore, the same is rejected. 12. The submission of learned counsel for the appellant that the said farsa was not sent to the forensic laboratory and it gives a fatal blow to the case of prosecution is also not acceptable. It is true that the I.O. (P.W.-11) had stated that he has not sent the seized farsa to forensic laboratory and he has not mentioned any explanation in the diary regarding the same, the same appears to be a lapse on the part of prosecution. It is well settled that all the lapses on the part of prosecution are not fatal to the case of prosecution except some prejudice is caused to the defence. In the instant case, the I.O. at Paragraph-7 has stated that he seized the farsa from the Aangan of appellant. The I.O. has been cross-examined at length by the defence counsel. But no suggestion was made to the I.O. that the said farsa was not seized from the Aangan of the appellant. In the instant case, the I.O. at Paragraph-7 has stated that he seized the farsa from the Aangan of appellant. The I.O. has been cross-examined at length by the defence counsel. But no suggestion was made to the I.O. that the said farsa was not seized from the Aangan of the appellant. We therefore, find that the seizure of farsa from the Aangan of appellant is not in challenge. In view of the above we find no prejudice caused to the appellant. 13. In view of consistent, cogent and unshaken testimonies of eyewitnesses (P.W.-1, P.W.-7 and P.W.-8), which found full corroboration from medical evidence, physical findings of I.O. and other evidences available on record, we find that the prosecution have been able to bring home the charge levelled against the appellant beyond the shadow of all reasonable doubts. We find no illegality or irregularity in the impugned judgment, warranting any interference by this court. 14. This appeal is accordingly dismissed.