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2013 DIGILAW 448 (JHR)

Pandra Manjhi v. State of Jharkhand

2013-04-04

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
JUDGMENT Per D.N. Patel, J. 1. The present appeal has been preferred against the judgment of conviction and order of sentence both dated 27th January, 2004 passed by the 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.58 of 1999 whereby the present appellant-accused has been punished for an offence under Section 302 of the India Penal Code for life imprisonment and also under Section 323 of the Indian Penal Code for one year's simple imprisonment. However, both the sentences were ordered to run concurrently. Against this judgment, the present appeal has been preferred by the accused. 2. It is the case of the prosecution that PW.6 Cheto Manjhi has given his fardbeyan on 28th September, 1998 before the police that on 27th September, 1998 at about 4.30 p.m. when his brother Lepa Manjhi was at his residence along with his wife and son, the present appellant along with another co-accused Daswa Manjhi came at the house of the deceased and they told Lepa Manjhi that his wife is playing witchcraft to the wife of Daswa Manjhi and, therefore, she has become ill and, therefore, they started beating with lathi Lepa Manjhi so severely that he expired on the spot. Upon recording of this fardbeyan, First Information Report was lodged. The case was investigated, several statements of prosecution witnesses were recorded and the case was committed to the Court of Sessions being Sessions Trial Case No.58 of 2009 and upon evidences available on record from depositions given by PW.1 to PW.7 and also on the basis of documentary evidences, i.e. Ext.1, Ext.2 and Ext.3, the learned trial Court has convicted this appellant for the offence punishable under Section 302 for life imprisonment for causing murder of the deceased. This appellant has also been punished for the offence under Section 323 of the Indian Penal Code for one year's simple imprisonment. Both the sentences were ordered to run concurrently and, therefore, the present appeal has been preferred by the appellant against the said judgment of conviction and order of sentence passed by 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No.58 of 1999 dated 27th January, 2004. 3. We have heard the learned counsel appearing for the appellant who has mainly submitted that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. 3. We have heard the learned counsel appearing for the appellant who has mainly submitted that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside. It is also submitted by the learned counsel appearing for the appellant that the so-called eyewitnesses, PW.1, PW.2 and PW.6 are not the eyewitnesses at all. This aspect of the matter has also not been properly appreciated by the learned trial Court. Moreover, doctor has not been examined by the prosecution and, hence, the prosecution has failed to prove the culpable homicide of the deceased and, hence, the appellant cannot be convicted for the offence of murder of the deceased. It is also submitted by the counsel for the appellant that the prosecution has projected PW.1 and PW.2 as injured eyewitnesses, but, neither their injury certificates are on record, nor any doctor has been examined to prove the injury of PW.1 and PW.2. This aspect of the matter has also not been properly appreciated by the learned trial Court and hence also the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that PW.3, PW.4 and PW.5 are independent witnesses who are neighbours. They have not put any accusation upon the present appellant. This aspect of the matter has also not been properly appreciated by the learned trial Court and hence, the judgment of conviction and order of sentence passed by the learned trial Court deserve to be quashed and set aside. 4. We have heard the learned counsel counsel appearing for the State-APP who has mainly submitted that the offence of murder of Lepa Manjhi has taken place in his house on 27th September, 1998 at about 4.30 p.m. and there are more than one eyewitnesses of the incident. PW.1 is the son of the deceased, PW.2 is the wife of the deceased and, PW.6 is the brother of the deceased, who is also the informant of this case. PW.1 is the son of the deceased, PW.2 is the wife of the deceased and, PW.6 is the brother of the deceased, who is also the informant of this case. It is submitted by the counsel for the State-APP that looking to the depositions of these three eyewitnesses, they have clearly narrated the role played by the appellant in causing murder of the deceased. All these witnesses have stated before the learned trial Court that on 27th September, 1998 at about 4.30 p.m., the present appellant as also the another co-accused namely Daswa Manjhi came at the house of Lepa Manjhi and they assaulted with lathi and Lepa Manjhi was so severely beaten that he expired on the spot. PW.6 has given his fardbeyan before the police and on the basis of this fardbeyan, First Information Report was lodged. It is submitted by the counsel for the State-APP that looking to cross-examination of these three eyewitnesses, their examination-in-chief remained intact as it is. They have supported fully the case of the prosecution and their deposition is also getting enough corroboration by the deposition given by the Investigating Officer, who is PW.7 who has investigated the whole case and looking to the fardbeyan at Ext.1, Post Mortem Report at Ext.2 and the First Information Report at Ext.3, there is enough corroboration to the deposition given by the eyewitnesses who are PW.1, PW.2 and PW.6. This aspect of the matter has been properly appreciated by the learned trial Court and no error has been committed by the learned trial Court in convicting this appellant and imposing the minimum punishment for the murder of the deceased and, hence, appeal may not been entertained by this Court. 5. Having heard learned counsel for both the sides and looking to the evidence on record, it appears that the incident of murder of Lepa Manjhi had taken place in his house on 27th September, 1998 at 4.30 p.m. It is the case of the prosecution that the present appellant along with co-accused Daswa Manjhi came at the house of the deceased and they started quarreling with Lepa Manjhi that his wife has played witchcraft upon the wife of Daswa Manjhi and, therefore, she has become ill. When this Lepa Manjhi tried to explain that you have to taker her to doctor, they assaulted with lathi Lepa Manjhi and he was so severely beaten that Lepa Manjhi expired on the spot in his house. In the house, there was presence of son of the deceased who is PW.1, there was presence of wife of the deceased who is PW. 2 and there was also presence of brother of the deceased who is PW.6. PW.6 is also informant of this case. These are the three eyewitnesses of this incident. 6. Thus, we will now look at the evidence given by these eyewitnesses. Looking to the deposition given by PW.6, who is informant and brother of the deceased, he has clearly stated before the learned trial Court that on th September, 1998 at about evening hour, this appellant-accused as well as another co-accused, namely Daswa Manjhi, came with Lathi. They put accusation upon the wife of the deceased that she played witchcraft upon wife of Daswa Manjhi and, therefore, she is ill. This Daswa Manjhi is an absconding accused. They started beating Lepa Manjhi by lathi and Lepa Manjhi expired on the spot because of these injuries. We have also perused cross-examination of these witnesses. Nothing is coming out in the cross-examination in favour of this appellant-accused. His deposition remained in tact and as it is even during cross-examination. He has also filed First Information Report before the Police Station which is given as Ext.3 and fardbeyan as Ext.1. His deposition is fully supporting the case of the prosecution. He is an eyewitness of the incident. His presence in the house of his brother is also a natural one. He has given clearly the date of incident, the time of incident and the place of incident. He has also identified the appellant-accused. We see no reason to disbelieve this eyewitness and no error has been committed by the learned trial Court in believing this eyewitness who is PW.6. 7. Looking to the deposition given by PW.1 who is Sanichar Hembrom who is son of the deceased. He has also stated clearly the whole incident and looking to the deposition of PW.1, he has stated that this appellant along with another absconding co-accused Daswa Manjhi had arrived at the house of the deceased with lathi. They have beaten Lepa Manjhi with lathi and, therefore, Lepa Manjhi expired on the spot. He has also stated clearly the whole incident and looking to the deposition of PW.1, he has stated that this appellant along with another absconding co-accused Daswa Manjhi had arrived at the house of the deceased with lathi. They have beaten Lepa Manjhi with lathi and, therefore, Lepa Manjhi expired on the spot. Looking to the cross-examination of this witness also, his examination-in-chief remained intact and as it is. His presence in his house is absolutely natural one. This witness has also stated that he was also beaten by accused persons. He has clearly stated the date of incident, time of incident and the place of incident. He has also identified the appellant-accused. Thus, there is no mistaken identity of the accused. This PW.1 has supported fully the case of the prosecution. He is also eyewitness of the incident and looking to his deposition given before the learned trial Court, he is a reliable and trustworthy witness and we see no reason to disbelieve this eyewitness and no error has been committed by the learned trial Court in appreciating the evidence given by PW.1. 8. Looking to the deposition given by PW.2 Lilo Devi, she is the wife of the deceased. She was also present in her house at the time of incident. Her presence in her own house is a natural one. She has also stated clearly the whole incident. As per the deposition given by PW.2, it appears that the PW.2 is a rustic witness and she is giving deposition after approximately three years of the incident in the Court. She has stated in her deposition before the learned trial Court that she was also beaten by the appellant-accused and she regained her consciousness on the next day in hospital. It appears that there is some error in giving this statement of fact before the learned trial Court, because looking to deposition given by PW.7, who is the Investigating Officer, he has stated before the learned trial Court that he has recorded the statement of the eyewitnesses immediately on the next day of the incident. Thus, there is some wrong narration of the fact by PW.2. As stated herein above, she is a rustic witness, she is giving deposition after three years of the incident and deposition in the Court depends upon memory of the witness and reproduction of the incident in the Court. Thus, there is some wrong narration of the fact by PW.2. As stated herein above, she is a rustic witness, she is giving deposition after three years of the incident and deposition in the Court depends upon memory of the witness and reproduction of the incident in the Court. This sentence of PW.2 does not make the PW.2 unreliable and untrustworthy. Otherwise she has clearly stated that the appellant-accused along with another co-accused, gave lathi blows to her husband and her husband expired on the spot. Looking to her cross-examination, nothing is coming out in favour of the appellant. PW.2 is reliable and trustworthy witness and no error has been committed by the trial Court in appreciating her evidence. 9. Looking to the deposition these PW.1, PW.2 and PW.6, they have clearly narrated the whole incident in detail and how the appellant has caused murder of the deceased. Even if PW.2 has committed slight error in narrating about her consciousness, PW.1 and PW.6 are the eyewitnesses of the incident and looking to the totality of the evidence on record including of PW.7, who is the Investigating Officer, no error has been committed by the learned trial Court in convicting this appellant for causing murder of the deceased Lepa Manjhi. Therefore, the prosecution has proved the offence of murder committed by the appellant beyond reasonable doubts. 10. Moreover, deposition given by PW.1 and PW.6 is also getting enough corroboration by post mortem report which is given at Annexure-2. The injuries upon the body of the deceased have resulted into the fracture of th ribs of right side of chest and 4th, 5th, 6th ribs of the left side of chest. 11. Non-examination of doctor is not fatal to the prosecution, looking to the evidences of eyewitnesses and looking to the evidences of eyewitnesses and looking to the evidence of Investigating Officer (PW.7). Looking to para.6 of deposition of PW.7, he knows the handwriting of Dr. R.N. Sinha who has carried out Post mortem of body of the deceased and who has, written Post Mortem Report. Therefore, it was given Exhibit No.2. Looking to cross-examination of this witness, his deposition in para.6 remains as it is. 12. Looking to para.6 of deposition of PW.7, he knows the handwriting of Dr. R.N. Sinha who has carried out Post mortem of body of the deceased and who has, written Post Mortem Report. Therefore, it was given Exhibit No.2. Looking to cross-examination of this witness, his deposition in para.6 remains as it is. 12. In view of these evidences on record, we, hereby, uphold the decision given by 1st Additional Sessions Judge, Bermo at Tenughat on 27th January, 2004 in Sessions Trial No.58 of 1999 and no error has been committed by the learned trial Court in convicting and punishing this appellant for life imprisonment for the offence under Section 302 of the Indian Penal Code for causing murder of the deceased and also for the offence under Section 323 of the Indian Penal Code punishing him one year's simple imprisonment. There is no substance in the present Criminal Appeal. Hence, the Criminal Appeal fails and is hereby dismissed.