Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 819 (JHR)

Markus Kujur v. State of Jharkhand

2009-05-22

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT Prashant Kumar, J. In this appeal the sole appellant Markus Kujur has challenged the judgment of conviction and order of sentence dated 22.7.2000 and 25.7.2000 respectively passed by learned Sessions Judge, Gumla in S.T. No. 102 of 1999 whereby and whereunder he has been convicted for the offence under section 302 of IPC and sentenced to undergo imprisonment for life for murder of Flora Kujur and Mangri Kerketta. 2. The case of prosecution, in short, as per the fardbeyan of P.W. 6( Sunil Kerketta) is that on 31.1.1999 when he returned to his house at 1 p.m. from forest he did not find his mother Mangri Kerketta in the house. However at that time itself, he heard the yelling sound of a woman from the side of Chutia Nala. Hearing the said sound, he saw towards Chutia Nala and found that Markus Kujur (appellant) was assaulting Flora Kujur with an axe (tangi). It is further alleged that seeing the incident he raised hulla in the village and requested the villagers for apprehending Markus Kujur. It is further stated that on hearing hulla, Namjan Topno, Salan Topno, Benjamin Kujur and others came towards the Nala and saw that Markus Kujur was fleeing towards his house holding an axe in his hand. It is further stated that when the aforesaid persons and other villagers tried to apprehend Markus Kujur, he threatened and chased them. However, when several villagers arrived, they caught hold of Markus Kujur. It is alleged that before the villagers, he confessed that he had killed Mangri Kerketta and Flora Kujur while they were taking bath in Chutia Nala and their dead bodies are lying in the water. Thereafter, the informant and other villagers went to Chutia Nala and found the dead body of Mangri Kerketta and Flora Kujur floating in the water of Chutia Nala. It is further alleged that prior to the occurrence, father of Markus Kujur had given land to informant’s grand father over which they had constructed their house. It is alleged that Markus Kujur had been pressing the informant and his family members for removing the said house from the said land for sometime past. When the father of the informant refused to remove the said house, Markus threatened to kill them. It is stated that due to the said reason, Markus Kujur killed informant’s mother Mangri Kerketta and Flora Kujur. 3. When the father of the informant refused to remove the said house, Markus threatened to kill them. It is stated that due to the said reason, Markus Kujur killed informant’s mother Mangri Kerketta and Flora Kujur. 3. On the basis of aforesaid fardbeyan, Basia P.S. Case No. 0008 of 1999 dated 31.1.1999 under section 302 of the IPC was instituted and police took up investigation. After completing the investigation, police submitted charge sheet against the appellant under section 302 of the IPC. After commitment of the case, the charge was framed against the sole appellant for committing the offence under section 302 of the IPC. The said charge was explained to the appellant to which he pleaded not guilty and claimed to be tried. Thereafter the prosecution examined altogether 8 witnesses in support of its case. The prosecution also brought on record Ext. 1 series-the signatures of witnesses on the inquest report, Ext. 2 series-signature of witness on fardbeyan, Ext. 3 & 3/1-the two post mortem reports, Ext. 4-the fardbeyan, Ext. 5 &5/1-the two inquest reports, Ext. 6-the O.D. slip of appellant Markus Kujur and Ext. 7-the formal FIR. The appellant was then examined under section 313 of the Cr.P.C. in which his defence is of total denial. The learned court below after considering the evidence available on record convicted and sentenced the appellant as aforesaid. 4. It is submitted by Sri. G.C. Sahu, learned counsel for the appellant that this case is based on sole testimony of P.W. 6 who claims himself to be the eye witness of the occurrence. It is further submitted that the evidence of P.W. 6 is unreliable and the same cannot be the sole basis for conviction. It is further submitted that the P.W. 6 who is informant of this case is the son of deceased Mangri Kerketta. Admittedly they had strained relation with the appellant. Under the circumstance, the evidence of P.W. 6 can not be solely relied for convicting the appellant. It is submitted that the weapon allegedly used in the commission of crime has not been produced in the court, which cast a serious doubt on the case of prosecution. Even the seizure list of the alleged tangi has not been produced. In view of the aforesaid infirmities in the prosecution case, appellant deserves to be acquitted by giving him benefit of doubt. Even the seizure list of the alleged tangi has not been produced. In view of the aforesaid infirmities in the prosecution case, appellant deserves to be acquitted by giving him benefit of doubt. Thus, it is submitted that the impugned judgment of the court below cannot be sustained. 5. On the other hand, learned Additional P.P. submitted that in the instant case there are two eye witnesses of the occurrence. P.W. 4 Namjan Topno has stated that after hearing hulla when he rushed towards Nala, he saw that Markus Kujur was assaulting Flora Kujur with tangi. P.W. 6 also stated likewise. Thus it is contended that the submission of learned counsel for the appellant that this case is based on solitary evidence of P.W. 6 is not correct. He further submitted that from the perusal of evidence of P.W. 6, it is clear that his statement is consistent to his previous statement made in the fardbeyan. There is no infirmity in his evidence on which the same can be excluded from the arena of consideration. The evidences of P.W. 6 and P.W. 4 find full support from the evidences of P.W. 1, 2, 5 who have stated that they had also seen the appellant fleeing from the place of occurrence having armed with tangi. They had apprehended the appellant and in presence of the witnesses and other villagers, the appellant had confessed his guilt. He submitted that the medical evidence as well as the physical finding of I.O. further corroborates the evidences of P.W. 4 and 6. It has been contended that non production of seizure list and Tangi in court, though appears to be a lapse on the part of I.O., the same has no fatal consequence in view of the trustworthy and reliable ocular evidence. The impugned judgment of the court below, thus, does not require any interference by this court. 6. P.W. 7, Dr. Hemant Kumar had deposed that on 1.2.1999 at 2.15 p.m and 3.15 p.m respectively he conducted post mortem examination on the dead bodies of deceased Mangri Kerketta and Flora Kujur. On the dead body of Mangri Kerketta he found one incised wound having a dimension of 4”x1”x3” over right parietal region of head with fracture of underlying bone with cut on brain matter. He also found presence of blood clots. On the dead body of Mangri Kerketta he found one incised wound having a dimension of 4”x1”x3” over right parietal region of head with fracture of underlying bone with cut on brain matter. He also found presence of blood clots. He found the said injury ante mortem in nature and sufficient to cause death in the ordinary course of nature. According to him the cause of death of deceased Mangri Kerketta is shock and haemorrhage. He further deposed that on the dead body of Flora Kujur he found two incised wounds having dimension of 4”x1”x3” over middle occipital region of the head with fracture of underlying bone and of 4”x1”x3” over right temporal region of the head with fracture of underlying bone. He also found cut on brain matters and presence of blood clots. He also found one lacerated wound on the parietal region of head having dimension of 1”x1/2”xscalp deep. He has opined that all the injuries were ante mortem in nature and injury no. 1 and 2 were sufficient to cause death in ordinary course of nature either singly or in combination. According to him the cause of death of deceased Flora Kujur also was shock and haemorrhage. From the perusal of evidence of P.W. 7, I find that the defence while cross-examining him, has not challenged the finding given by him. Under the said circumstance, I find that the prosecution has been able to prove that the aforesaid two deceased, namely, Mangri Kerketta and Flora Kujur had died homicidal death. 7. Now the question is as to whether the appellant have any hand in the commission of present crime? To prove the charge leveled against the appellant, the prosecution had mainly relied upon the evidence of P.Ws. 1,2,3,4,5 and 6. P.W. 6 Sunil Kerketta is the informant of this case and he happens to be the son of one of the deceased, namely, Mangri Kerketta. He deposed that on 31.1.1999 he returned to his house at 1 p.m. from forest and found that his mother Mangri Kerketta is not in the house. He thereafter heard yelling sound of a woman coming from the side of river whereupon he went there and saw that Markus Kujur was assaulting Flora Kujur with axe. He further deposed that due to fear he fled away towards village and raised hulla. He thereafter heard yelling sound of a woman coming from the side of river whereupon he went there and saw that Markus Kujur was assaulting Flora Kujur with axe. He further deposed that due to fear he fled away towards village and raised hulla. On hulla, Salan, Sunil and about other 50 villagers assembled and saw Markus, fleeing away having a tangi in his hand. However, he was chased and apprehended near his house. Markus had confessed that he had killed Mangri and Flora with tangi. He further deposed that at that time, Markus was holding a tangi which was blood-stained. He further states that when he along with other villagers reached near the river, they found dead bodies of both the deceased. He further stated that Markus had strained relation with his mother due to the land dispute. He stated that on his statement, fardbeyan was drawn by the police on which he put his signature. On the perusal of cross examination of this witness, I find that he stood to the test of cross examination and there is nothing in his evidence to be thrown over board. 8. P.W. 4, Namjan Topno has deposed that on 31.1.1999 at about 1 p.m. while he was present in his house, he heard hulla of Sunil Kerketta that Markus Kujur was assaulting Flora Kujur near Chutia Nala. He then states that after hearing the said hulla, he ran towards Nala and saw that Markus Kujur was assaulting Flora with tangi. He further deposed that after seeing him, Markus started fleeing towards his house. When he and others tried to apprehend him, he chased them and threatened to assault. However when number of villagers assembled, Markus was apprehended and in that process Markus had received some superficial injury. He further deposed that Markus had confessed his guilt before the villagers and states that he has killed Flora Kujur and Mangri Kerketta at Chutia Nala. Thereafter, they went to Chutia Nala and saw the dead bodies of Flora Kujur and Mangri Kerketta in the water. He also stated that the appellant had strained relation with Mangri Kerketa. On perusal of the cross examination of this witness, I find that the defence did not challenge the statement that he saw the occurrence from his own eyes. Thus aforesaid statement given by this witness in the examination in chief remains intact. He also stated that the appellant had strained relation with Mangri Kerketa. On perusal of the cross examination of this witness, I find that the defence did not challenge the statement that he saw the occurrence from his own eyes. Thus aforesaid statement given by this witness in the examination in chief remains intact. I further find that the defence could not elicit anything from this witness on which his testimony can be disbelieved. 9. P.W. 1 Benjamin Kujur who is the husband of one of the deceased Flora Kujur deposed that on 31.1.1999 at 1 p.m. he heard hulla of Sunil Kerketta and went towards Chutia Nala where his wife was taking bath. He saw that the appellant Markus was fleeing after assaulting his wife with axe. He then deposed that he along with others chased Markus but he threatened to kill them. However, about 50 villagers assembled, chased and apprehended him and thereafter in their presence he accepted his guilt and disclosed that he killed Flora Kujur and Mangri Devi. It is further deposed that when he went to Chutia Nala he found the dead bodies of his wife and Mangri lying in the water. He also stated that he found injury on the head of both the deceased. When the police came, they took out the dead bodies out of the water. He further deposed that the husband of deceased Mangri, namely, Loknath Munda has constructed a house on the land of Markus Kujur and Markus Kujur was pressing him to remove the said house and also threatened to kill him. He has been cross examined at length. In his cross examination he stated that the tangi was seized by the police. He denied the suggestion of defence that appellant had not confessed his guilt before the villagers. On perusal of the cross examination of this witness, I find that he stood to the test of cross examination. P.W. 2 Ghuran Pahan has deposed that on 31.1.1999 at about 1.30 p.m. he had gone to the village Aryanadi Dipatoli and found that the villagers had apprehended Markus Kujur who had confessed before the villagers that he had killed Mangri and Flora. He further states that in between the appellant and Mangri there was land dispute and because of that the appellant had killed Mangri. He further states that in between the appellant and Mangri there was land dispute and because of that the appellant had killed Mangri. He further states that the Officer-in-Charge had prepared inquest report of dead bodies on which he and Vimal Topno put signatures as witnesses. He proved the said signatures as Ext-1 series. On perusal of cross examination of this witness, I find that nothing had been elicited by the defence on which his evidence can be brushed aside. 10. P.W. 3 Vimal Topno deposed that on 31.1.1999 he heard hulla of villagers but, he did not come out of his house. He also states that Markus Kujur had not confessed his guilt in his presence. However, he states that in the evening Officer-in-Charge had come in the village and had prepared inquest report of deceased Mangri and Flora on which he had put his signatures. He also stated that the appellant had land dispute with Mangri and because of that Mangri had been killed 11. P.W. 5 Salan Topno deposed that on 31.1.1999 at 1 p.m., while he was in his house, he heard hulla and he also went there and found that the villagers were chasing Markus. He then stated that thereafter he along with other villagers apprehended Markus who had disclosed that he had killed Mangri and Flora. He further stated that he along with other villagers went to Chutia Nala and there they saw the dead bodies of both the deceased. He also stated that there was land dispute between Mangri and Markus. He stood to the test of cross examination and there is absolutely nothing in his cross examination on which his evidence can be discarded. 12. Thus from the perusal of evidence of P.W. 6, it is clear that this witness had seen part of the occurrence i.e. the assault on deceased Flora Kujur and immediately thereafter he raised alarm. P.W. 4 has also stated that after hearing the hulla raised by P.W. 6, he went towards Chutia Nala and saw that the appellant was assaulting deceased Flora Kujur with axe. Thus, I find that there are two eye witnesses of the occurrence. As noticed above, there is nothing in the cross examination of aforesaid two witnesses on which their testimony can be brushed aside. Thus, I find that there are two eye witnesses of the occurrence. As noticed above, there is nothing in the cross examination of aforesaid two witnesses on which their testimony can be brushed aside. I further find that the statements of P.W. 4 and 6 find full support from the evidence of P.W. 1 and 5 who has also stated that when they heard hulla, they went towards the Chutia Nala and saw that the appellant was fleeing away with an axe in hand. The villagers apprehended the appellant and before them, he disclosed that he had killed both the deceased. The evidence of prosecution witnesses further find full support from the medical evidence. The doctor has also given opinion that the fatal injury found on the person of both the deceased were caused by sharp cutting weapon such as axe (tangi).Thus the medical evidence also corroborates the evidence of the said prosecution witnesses. The I.O. and the inquest report prepared by him also support the version of prosecution witnesses. 13. The submission of learned counsel for the appellant that the conviction of appellant is based on sole testimony of P.W. 6 does not find support from the record. As noticed above, P.W. 6 and P.W. 4 had seen the occurrence. The said evidence remained unchallenged in the cross examination. Moreover even assuming that only P.W. 6 had seen the occurrence, I find that the evidence of P.W. 6 is wholly reliable and there is absolutely nothing in his evidence on the basis of which his evidence can be discarded. The Apex Court in Marwadi Kishor Parmanand and others Vs. State of Gujrat,[1994 SCC(CRI)] 1294 has held as follows:- “Generally, speaking, oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. So far as the first category of proof is concerned, the courts have no difficulty in coming to its conclusion either way, that is to say it may convict or may acquit on the testimony of the single witness, if his testimony is found to be above approach or suspicion of interestedness, incompetence or subordination. In the case of second category of the witness, the court has equally no difficulty in coming to the conclusion. In the case of second category of the witness, the court has equally no difficulty in coming to the conclusion. But in the third category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Most often there are situations where only a single person is available to give evidence in respect of a disputed fact. Naturally in such a situation the court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.” Since the evidence of P.W. 6 is wholly reliable, there is no difficulty in coming to the conclusion that the appellant has committed the alleged crime. Moreover, as noticed above, the statement of P.W. 6 finds full corroboration from the other witnesses examined in this case including the doctor and I.O. 14. The second submission of learned counsel is that the seizure list as well tangi has not been produced. In my view, the said lapses on the part of prosecution have no fatal consequences. It has been held by the Supreme Court in Sukhdeo Yadav Vs. State of Bihar [2001(8)SCC 86] that if the eye witnesses account available on record is trustworthy then the lapses of non production of seizure list stand over shadows by the testimony of eye witnesses. 15. As noticed above, in the instant case, I find that the testimony of P.W. 6 and 4, who are eye witnesses of the occurrence, wholly reliable and trustworthy. Under the said circumstance, non production of seizure list and/or non production of Tangi in court have no fatal consequences on the case of prosecution. Accordingly, aforesaid submission made by learned counsel for the appellant bears no substance. 16. In view of the above discussions, I find that the court below has rightly considered and accepted the evidences available on record and has rightly come to the conclusion that the appellant had committed murder of Flora Kujur and Mangri Kerketta by inflicting fatal injuries. Accordingly, I find no reason to interfere with the aforesaid finding of learned trial court. The impugned judgment of conviction and order of sentence is sound and legal and the same is affirmed. 17. Accordingly, I find no reason to interfere with the aforesaid finding of learned trial court. The impugned judgment of conviction and order of sentence is sound and legal and the same is affirmed. 17. In the result, this appeal fails and is accordingly, dismissed.