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2011 DIGILAW 915 (JHR)

Suseran Soy v. The State of Jharkhand

2011-09-22

P.P.BHATT, R.K.MERATHIA

body2011
JUDGMENT P.P. Bhatt, J.-Both two connected appeals have been heard together and are being decided by a common judgment as they arise from a common order/judgment. 2. Both criminal appeals are preferred against the judgment of conviction dated 23.8.2003 and order of sentence dated 25.8.2003 passed by Sri Raghubar Dayal, Addl. Sessions Judge, FTC NO.-II, Chaibasa in S.T. No.109 of 2001 whereby the appellants alongwith others have been convicted under Sections 302/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for life each for the offence under Sections 302/ 34 of the Indian Penal Code. 3. The prosecution story, which has arisen on the basis of the Fardbayan of the informant, Surendra Soy (P.W. 1) recorded before Kashi Kujur, S.I., P.S. Muffasil on 17.4.2000 at about 11.00 p.m., in short was that the informant was working at Tata Telco and he came at Village-Tontohansai at about 10.00 a.m. from Tata to his house on 17.4.2000. It was alleged that there was land dispute with regard to the partition of land with his brother Krishna Soy from before and partition of the land between two brothers took place in the last year due to which his elder brother and nephew were dissatisfied with the proportion of share provided which according to them should be more than the family of deceased who was having small family compare to their large family and as a result of which from time to time there were altercation between two families Wife of the informant alongwith two sons of the informant lived at her house, which is the place of occurrence and looked after the cultivation. There was a common Angan (compound) between the informant and his brother. The informant alleged that in his absence there was dispute between his wife and his Bhabhi and they were not having talking terms. On 17.4.2000 at about 8.00 p.m. while the informant was having meal by sitting in the Angan (compound), his nephew Surendra Soy, Susheran Soy and their servant Remo Gope having armed with khanjar suddenly attacked on the informant. On that situation the informant run away and entered into room leaving his meal. On 17.4.2000 at about 8.00 p.m. while the informant was having meal by sitting in the Angan (compound), his nephew Surendra Soy, Susheran Soy and their servant Remo Gope having armed with khanjar suddenly attacked on the informant. On that situation the informant run away and entered into room leaving his meal. At that time, about three accused persons attacked on his wife Savitri Soy, who was sitting on the cot in the Angan (compound), and they pull down her on the earth and khanjar blow was given on her neck as a result of which she sustained cut injury on her neck. They also assaulted on her Kanpatti and her right arm due to which she sustained injury. Thereafter the accused persons fled away from the place of occurrence. It was further alleged that on hearing alarm raised by the informant and his son, villagers assembled there. In the meantime, his wife died on account of serious blow given by the accused persons. He apprised Munda of the village, who came on receiving the information about the occurrence and he accompanied the informant to the police station where the statement of the informant was recorded and the same was read over and explained to him. On the basis of the statement made before the police, Muffasil P.S. Case No. 28 of 2000 was registered under Sections 302/34 of the Indian Penal Code. After completion of investigation, the charge-sheet bearing no. 34 of 2000 was submitted against the named accused persons and cognizance of the offence under Sections 302/34 of the Indian Penal Code was taken against the accused persons. After taking cognizance the case was committed to the Court of Sessions and on completion of trial by the Sessions Court the statement of the accused persons was recorded under Section 313 of Cr.P.C. Thereafter the judgment was delivered by the learned Sessions Judge. 4. Being aggrieved and dissatisfied by the said judgment the both appeals are filed by the appellants. 5. The learned counsel appearing for the appellants has assailed the judgment and order passed by the learned Sessions Judge mainly on the ground:- (i) That the learned court below failed to appreciate that the prosecution story is entirely false and incredible. 4. Being aggrieved and dissatisfied by the said judgment the both appeals are filed by the appellants. 5. The learned counsel appearing for the appellants has assailed the judgment and order passed by the learned Sessions Judge mainly on the ground:- (i) That the learned court below failed to appreciate that the prosecution story is entirely false and incredible. (ii) That the learned court below failed to take into consideration that there is no eye witness in the alleged occurrence and the case is wholly based on the circumstantial evidence and chain of circumstance has not been completed in this case. (iii) That P.Ws. 2 and 5 cannot be treated as witnesses though they have been projected as eye witnesses by the prosecution. (iv) That the P.W. 1 Surendra Soy (informant) has not stated anywhere in the Fardbeyan as well as in his oral evidence that his sister (P.W. 2) was present at the time of occurrence of the incident likewise P.W. 5 (Krishna Soy), who was projected as eye witness, has not clearly stated about presence of the P.W. 2 (Randia Banra) at the place of occurrence. (v) That on perusal of the oral evidence of P.W. 5 (Krishna Soy) and looking at his conduct, which is reflected from the oral testimony, it does not inspire any confidence and the same in unnatural. (vi) That the prosecution has not examined important witnesses though they have been named either in the FIR or in the oral evidence and therefore, it creates doubt in the prosecution. (vii) That Investigating Officer has not been examined in the present case. But the case diary has been exhibited vide Ext.-7 on the basis of oral evidence by P.W. 7 J.S.I., Muffasil-Chaibasa. As per the case diary, P.W. 5 Krishna Soy cannot be treated as an eye witness as his presence was shown in the room which reflects in the case diary, thus, according to the learned counsel for the appellant, P.W. 5 stands on same pedestal as P.W. 2, because there is no mention about P.W. 2 in the Fardbeyan as well as in the case diary. (viii) That P.W. 1 (Surendra Soy) and 5 (Krishna Soy) have stated in their deposition that there was Hulla at the time of occurrence of the incident on account of alarm raised by the villagers who assembled at the place of occurrence but none of them have been examined to support the prosecution case that itself creates doubt. (ix) That Fardbeyan was recorded after three hours from the time of occurrence of the incident and therefore, the informant got chance manufactured false story. It is submitted that the entire story is concocted with a view to make false implication of the appellant in the crime. (x) The learned counsel for the appellant while making submission has referred to Fardbeyan vis-a-vis oral evidence of P.Ws. 1, 2, 3, 4 and 5 and submitted that there are material contradictions and anomalies which creates serious doubt about involvement of the appellants in the instant case and therefore, as per the cardinal principle of jurisprudence the appellants deserve benefit of doubt and the order passed by the learned Sessions Judge deserves to be set aside. 6. As against that, the learned Addl. Public Prosecutor while supporting the judgment and order passed by the learned Sessions Judge submitted that the prosecution has proved its case beyond reasonable doubt and therefore, the learned Sessions Judge after appreciation of the evidence has rightly passed the judgment and order convicting the accused persons-appellants herein. The learned counsel appearing for the State has submitted that the P.W. 1, who is the informant, is an eye witness, P.W. 2, who is the sister of the informant, is an eye witness and P.W. 5, who is the son of the P.W. 1, is an eye witness and testimonies of all three witnesses indicates the involvement of the appellants in the crime. It is submitted that P.W. 7 who was J.S.I., Muffasil-Chaibasa, has proved Fardbeyan and the case diary was also exhibited vide Ext.-7. Upon his deposition it is also submitted that likewise P.W. 6 Constable posted at P.S. Muffasil, Chaibasa has also stated that there is an entry in Malkhana Register regarding these material exhibits. Khanjar marked with Material Ext.-I, Handkerchief marked with Material Ext.-II and Plastic Packet containing blood stained earth marked Material Ext.-III. He also stated about the Malkhana Register Entry No. 17/2000. Khanjar marked with Material Ext.-I, Handkerchief marked with Material Ext.-II and Plastic Packet containing blood stained earth marked Material Ext.-III. He also stated about the Malkhana Register Entry No. 17/2000. It is also submitted that he also proved the description of material exhibits, which were prepared in the pen and signature of Rajiv Ranjan Prasad, O/C P.S.- Muffasil, which marked (Ext.-3). The learned counsel for the State while relying upon the oral evidence of PWs-1 to 7 submitted that there is no material contradictions or anomalies as submitted by the learned counsel for the appellants, in fact, all these witnesses are consistent and they proved the case beyond reasonable doubt. The learned State Counsel has also referred to Fardbeyan and material evidence of P.Ws. 1 to 5 including the Doctor and submitted that the cause of death also gets corroboration by other witnesses who stated about the role of each of the accused person with weapon used and injury caused to the deceased lady Sabitri. It is lastly submitted that the prosecution has established and proved its case beyond all reasonable doubt and the judgment and order passed by the Sessions Judge may be confirmed and the appeals may be dismissed. 7. Considering the rival submissions and on perusal of the LCR it appears that the prosecution has examined seven witnesses, out of which P.Ws. 1 to 5 are important and crucial witnesses. P.W. 1, who is informant, is an eye witness, P.W. 2, who is the sister of the informant, is also an eye witness, P.W. 3, who is Munda of the village, is also hearsay witness but this witness visited the place of occurrence after obtaining information about the occurrence of the incident. 8. P.W. 4 (Dr. B. Dayal) is the Medical Officer of Primary Health Centre who conducted post mortem; described the injuries and cause of death of the deceased. P.W. 5 is the son of the informant and an witness of the incident. The Doctor found the following injuries on the deceased:-- (i) A penetrating wound over right side of neck 1" x 1/4" x 1/2" elliptical in shape cutting trachea. (ii) An incised wound over right parietal region back of right pinna 1-1/ 2" x 1/4" x 1/4". (iii) Four stab wound over right side of chest and axillary region 1" x 1/4" x 1/2" elliptical shaped. (ii) An incised wound over right parietal region back of right pinna 1-1/ 2" x 1/4" x 1/4". (iii) Four stab wound over right side of chest and axillary region 1" x 1/4" x 1/2" elliptical shaped. (iv) An incised wound over right forearm 1" x 1/4" x 1/4". (v) Four stab wound over right side of chest 1" x 1/4" x 1". He opined that such injuries could be caused by 'Chura' and 'Farsa' and were sufficient to cause death and that they were inflicted in lying down position of the deceased. 9. We have carefully considered the oral evidence of P.Ws. 1 to 7. We have also meticulously examined the documentary evidence on record. We find substance in the arguments advanced by the learned A.P.P. for the State that the prosecution has established and proved its case beyond reasonable doubt. We have also examined Fardbeyan vis-a-vis oral evidence of each of the important witness including the evidence of the Doctor who described the nature of injury and cause of death of the deceased. The detail analysis of oral evidence made by the learned Sessions Judge clearly shows that the medical evidence gets corroboration from the oral evidence led by the prosecution in the instant case. The learned Sessions Judge has made threadbare analysis of the evidences adduced before him i.e. documentary and oral evidence and has reached to the conclusion that the prosecution has proved its case beyond reasonable doubt. The prosecution has examined seven witnesses out of which P.Ws. 1, 2 and 5 are the eye witnesses. The argument advanced by the learned counsel appearing for the appellant that P.Ws. 2 and 5 cannot be treated as eyewitnesses though they have been projected by the prosecution as eye witnesses, cannot be accepted for the simple reason that P.W. 5's version gets corroboration by the version of P.W. 2. So far as the injuries described by the Doctor is concerned, the same gets corroboration from oral testimony with regard to the weapon used by the appellants which is described in the testimonies of P.Ws. 1 and 5 and therefore, it cannot be safely derived at the conclusion that the eye witnesses projected by the prosecution are the real eye witnesses and oral evidence given by them is natural and its inspired confidence. 1 and 5 and therefore, it cannot be safely derived at the conclusion that the eye witnesses projected by the prosecution are the real eye witnesses and oral evidence given by them is natural and its inspired confidence. So far as the presence of P.W. 2 is concerned, P.W. 5 has categorically stated in his oral evidence that when he raised hulla his Phufhi namely P.W. 2 also came at the place of occurrence and P.W. 2 has also categorically stated in her deposition that she reached at the place of occurrence upon hearing hulla and she saw the accused-appellant fleeing away from the place of occurrence. Therefore, at the most she cannot be said to be eye witness of the actual occurrence of the incident but she can be definitely treated as an eye witness so far as presence of appellants at the place of occurrence by identifying them and more particularly action of their fleeing away from the place of occurrence. Accordingly the oral evidences of P.Ws. 1, 2 and 5 are in consonance with each other and there is no material contradictions as submitted by the learned counsel for the appellants. The oral evidence of P.Ws. 6 and 7, who were the police personnel, also corroborates the contents of Fardbeyan and seizure and identification of seized articles. In absence of I.O. these two witnesses i.e. P.Ws. 6 and 7 supported the prosecution case. 10. Under the facts and circumstances of the case, we are of the opinion that the accused persons namely Surendra Soy, Susheran Soy and Remo Gope in furtherance of their common intention have committed murder of Savitri Devi lady (deceased) by means of inflicting injuries as a result of which she died at the spot, therefore, the ingredients of Sections 302/34 of the Indian Penal Code are satisfied. It appears that the prosecution has proved its case beyond reasonable doubts. 11. It appears that the prosecution has proved its case beyond reasonable doubts. 11. We have carefully examined the judgment and order passed by the learned Sessions Judge and on perusal of the said judgment it transpires that the learned Sessions Judge has made threadbare analysis the evidences on record and he has not committed any error in reaching to the conclusion that appellants are held guilty of committed crime for the offence punishable under Sections 302 and 34 of the Indian Penal Code and thereby inflicting punishment for imprisonment of R.I. and therefore, the order passed by the learned Sessions Judge is ordered to be affirmed and both the appeals deserve to be dismissed. Hence both the appeals are ordered to be dismissed. 12. L.C.R. be sent back to the court below.