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2011 DIGILAW 588 (JHR)

Gumdi Banra v. State of Jharkhand

2011-07-04

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT 1. By. Court.-This appeal arises' out of judgment and order of conviction and sentence dated 21.5.2003 passed by Sri Satya N. Prasad, 2nd Additional Sessions Judge, West Singhbhum, at Chaibasa, in Sessions Trial No. 191 of 1998 (G.R. Case No, 25 of 1998) whereby the appellant has been convicted under Section 302 of the Indian Penal. Code and accordingly sentenced to undergo imprisonment for life. The appellant has also been convicted under Section 201 IPC and sentenced to undergo rigorous imprisonment for five years. However, both the sentences have• been directed to run concurrently. 2 Prosecution case, in short, as emerges from the written report dated 16.1.1998 of the informant, Jishu Banra (PW-3). is that on the previous day (15.1.1998) at about 7.30 p.m, he alongwith Kaira Banra, Mansingh Banra (PW-2) (son of the deceased), and Badur Kabri, were coming from Asura Murgfi Para to their village. At a distance of about 1/2 Km. from the village, two persons having swords in their hands quickly arrived from the side of the village Rango Basa and began to assault his cousin Kaira Banra (deceased) with sword. Then, the informant and others tried to save Kaira Banra from the assailants, who were Bijoy Banra (absconder) and Gumdi Banra (appellant). The informant and the others requested the assailants not to kill Kaira Banra, but they did not hear and both of them took Kaira Banra at some distance and killed him. Thereafter, the informant and the others ran away out of fear and told about tile occurrence to some of the villagers and the Munda of the village. In the morning, on the. next day, they went to the place of occurrence and saw Kaira Banra lying dead. They told about the occurrence to Michrai Banra (PW -1), brother of the des-eased and asked him to lodge information with the Police. It is stated that wife of Kaira Banra-Mini Banra (PW 4) used to reside in the house of her maternal uncle (the appellant) in spite of the objection raised by the deceased and due to this reason, he was killed. Written report (Ext.-3) was written by Shankar Banra as stated to him by the informant (PW-3), who signed on the same. 3. On the basis of the said fardbeyan written report of the informal, Mufassil Chaibasa P.S. Case No.8 of 1998 was registered. After investigation, charge-sheet was. s'ub'tJ1itted against the appellant. Written report (Ext.-3) was written by Shankar Banra as stated to him by the informant (PW-3), who signed on the same. 3. On the basis of the said fardbeyan written report of the informal, Mufassil Chaibasa P.S. Case No.8 of 1998 was registered. After investigation, charge-sheet was. s'ub'tJ1itted against the appellant. It appears that Bijoy Banra absconded and the appellant faced the trial and convicted as aforesaid. 4. PW-1 is one of the brothers of the oo9€ased and he IS a hearsay witness. PW-2 Mansingh Banra is the son of the deceased and one of the eye witness. PW-3 is Jishu Banra who is the brother of the deceased, is another eye witness. PW 4 Mini Banra is the wife of the deceased who has been declared hostile. PW-5 is Dr. Jawahar Khan who had conducted the post mortem on the dead body of the deceased. PW-6 is formal witness. 5. Mr. R.C. Khatri, learned counsel appearing on behalf of the appellant submitted that the prosecution has not fully proved its case against the appellant. He while assailing the conviction of the appellant on various grounds, inter alia, submitted that the evidence of PWs-3 and 4 who are said to be eye witnesses, are not reliable nor the motive has been proved by the prosecution as to why the appellant killed the deceased, who is his own "Bhagin Damad". Learned counsel further contended that the other witnesses who accompanied PW-2 and 3, the investigating officer of the case; and Shankar Banra who wrote the fardbeyan (Ext.-3) have not been examined. 6. On the other hand, learned Addl. P.P. supported the conviction and sentence of the appellant. 7. We are not convinced with the submissions of the learned counsel appearing for the-appellant. The eye witnesses are consistent in. their depositions and there is no reason to disbelieve their evidence. In view of the evidence of the eye-witnesses, it was• not necessary for the prosecution to prove the motive. The post mortem report and the evidence of Dr. Jawahar Khan (PW-S) fully corroborates the evidence of the eye witnesses. Though PW-4 was declared hostile, but she has admitted in her cross-examination that the deceased alongwith others, including PWs 2 and 3, were returning together. Thus, the presence of PWs-2 and 3 is admitted even by PW-4, who turned hostile. The post mortem report and the evidence of Dr. Jawahar Khan (PW-S) fully corroborates the evidence of the eye witnesses. Though PW-4 was declared hostile, but she has admitted in her cross-examination that the deceased alongwith others, including PWs 2 and 3, were returning together. Thus, the presence of PWs-2 and 3 is admitted even by PW-4, who turned hostile. PW-4 has not supported the prosecution case, apparently for the reason that she was brought up by the appellant. The investigating officer could not be examined be• cause he died during the trial. It was not necessary for the prosecution to examine all the witnesses who accompanied PWs 2 and 3 and the deceased. PW-2 and 3 are eye witnesses to the occurrence. The doctor (PW-5) has found 4 incised injuries caused by sharp cutting weapon on vital parts of the body of the deceased which were the cause of death of the deceased. The medical evidence fully supports the statements of PWs-2 and 3. Out of several persons, PWs-2 and 3 were examined as eye witnesses. Only because they are the son and the brother of the deceased, they cannot be said to be interested witnesses and on this ground, their evidence cannot be disbelieved or discredited. 8. After carefully going through the materials on the record and hearing the parties, in our view, no ground is made out for our interference with the order of conviction and sentence of the appellant by the trial court. The appeal is devoid of merit and is fit to be dismissed. Accordingly, this appeal is dismissed.