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2013 DIGILAW 760 (JHR)

Ranjit Kujur v. State of Jharkhand

2013-06-28

D.N.UPADHYAY

body2013
JUDGMENT By Court: This criminal appeal has been directed against the judgment dated 21.2.2002 and sentence dated 22.2.2002 passed by learned 2nd Additional Sessions Judge, Gumla in connection with S.T. No. 342 of 1993 corresponding to Gumla (Chainpur) P.S. Case No. 23 of 1993 dated 16.5.1993 (G.R. No. 367 of 1993), whereby the learned Additional Sessions Judge has found and held sole appellant Ranjit Kujur guilty for the offence punishable under Section 304 I.P.C. and sentenced him to R.I. for 10 years. 2. The prosecution case as it appears from the fardbeyan of Birjit Tigga in brief is that on 14.5.1993 at about 4 p.m. Johan Kujur (husband of the informant) was roaming in the village. When he reached near the house of accused persons, namely, Ranjit Kujur and Xavier Kujur, they assaulted John Kujur by means of stick. On hulla, the informant and her daughter came out from their house and saw the incident. It is alleged that both the accused indiscriminately assaulted the deceased by means of stick, as a result he sustained injury on his head and fell down. When the deceased was lying on the ground, accused Ranjit Kujur (appellant) started pressing testicle, whereas Xavier Kujur was pressing neck of the deceased. The other witnesses named in the F.I.R. including daughter of the deceased reached to the place and after that injured Johan Kujur was brought home and some village treatment was provided to him, but on the next day i.e. on 15.5.1993 he succumbed to injuries. On 16.5.1993 in the 2.morning, the fardbeyan of informant Birjit Tigga was recorded. On the basis of fardbeyan, Gumla (Chainpur) P.S. Case No 23 of 1993 u/s 304 I.P.C. was registered. During investigation, appellant Ranjit Kujur and other accused Xavier were arrested. The appellant confessed his guilt which was recorded in presence of police and stick used for committing the offence was recovered at his instance from his house. 3. Accused persons were charge-sheeted and case was committed to the Court of Sessions and registered as S.T. Case No. 342 of 1993. The charge under Section 304/34 I.P.C. against Ranjit Kujur and Xavier Kujur was framed and they were put on trial. 4. During trial altogether 11 witnesses have been examined and the prosecution has also proved documents as per exhibit list. The charge under Section 304/34 I.P.C. against Ranjit Kujur and Xavier Kujur was framed and they were put on trial. 4. During trial altogether 11 witnesses have been examined and the prosecution has also proved documents as per exhibit list. The learned Sessions Judge at the conclusion of trial did not hold accused Xavier Kujur guilty for the offence for which he was charged, but held the appellant Ranjit Kujur guilty for the offence punishable u/s 304 I.P.C. and sentenced him as aforesaid and hence present appeal. 5. Learned counsel appearing for the appellant has assailed the impugned judgment mainly on the grounds that the occurrence took place in the evening on 14.5.1993, but no information was lodged. The deceased was not taken to the hospital for his treatment, rather he was kept in the house. On 15.5.1993, injured Johan Kujur died. Even on that day, the matter was not informed to the police rather, on 16.5.1993, fardbeyan of the informant Birjit Tigga, who happens to be wife of the deceased, was recorded and the explanation with regard to delay extended therein is not tenable. It was alleged that both the accused assaulted the deceased indiscriminately by means of Danda but the statement of so called eye witnesses does not find support from the postmortem report because the Doctor (P.W. 1) had clearly3.stated that the deceased was having only one injury on his head and that was the cause of his death. It is surprising that on the same and similar evidence one of the co-accused Xavier Kujur was acquitted but the appellant has been convicted without distinguishing the evidence adduced against both of the accused. According to Para-2, Merry Grace Kujur (P.W. 6) when she reached to the place of occurrence, Asha Jyoti Kujur (P.W. 7) and Birjit tigga (P.W.4) were already present there, but Asha Jyoti Kujur (P.W. 7) in para-2 of her deposition contradicts the same and that when she reached to the place, she had seen Merry Grace and Madan Gope were present from before. It was also pointed out that Philip Gidh (P.W. 2) and Ilaju Gidh (P.W. 3) have been declared hostile and P.W. 10 Patric Tigga has been tendered. Most of the witnesses examined are close relatives of the deceased. It was also pointed out that Philip Gidh (P.W. 2) and Ilaju Gidh (P.W. 3) have been declared hostile and P.W. 10 Patric Tigga has been tendered. Most of the witnesses examined are close relatives of the deceased. The evidence of Doctor did not support the time of death and the time of injury caused as disclosed by the so called eye witnesses. 6. Learned counsel appearing for the State has opposed the prayer and submitted that all the eye witnesses have fully supported the prosecution case. There may be minor contradictions with regard to their arrival at the place of occurrence which cannot be given weightage because the witnesses are rustic villagers. Delay in lodging the F.I.R. has properly been explained and it did not cause any prejudice to the appellant. Only because one of the co-accused has been acquitted, the appellant cannot claim for his acquittal. Since there are eye witnesses to the occurrence, the ocular evidence has to be given weight than the medical evidence. There is no merit in this appeal and it is liable to be dismissed. 7. I have gone through the impugned judgment, the evidence on record and the documents proved and marked exhibits. The informant (P.W. 4) has clearly stated in her deposition that the occurrence had taken place just near her house and she came out on hulla. She had seen the appellant and his father causing assault to the deceased by means of Lathi. After having been assaulted, Johan Kujur sustained injury on his head and he fell 4.down. She raised alarm which attracted her daughter Asha Jyoti Kujur (P.W. 7) and she also witnessed the occurrence. This witness has also stated that after the deceased fell down the appellant and other accused had climbed on the body and making pressure by their feet to cause injury to him. Philip Gidh (P.W. 2) and Ilaju Gidh (P.W. 3) though turned hostile to the extent that they had not seen the occurrence, but both of them have stated that deceased was killed by Ranjit and Xavier. P.W. 2 and 3 are also witness to the inquest and they have proved their signatures. P.W. 3 is also an attesting witness to the confession made by Ranjit Kujur and Fardbeyan made by P.W. 4. P.W. 2 and 3 are also witness to the inquest and they have proved their signatures. P.W. 3 is also an attesting witness to the confession made by Ranjit Kujur and Fardbeyan made by P.W. 4. Merry Grace Kujur (P.W. 6) and Asha Jyoti Kujur (P.W. 7) are also eye witnesses and they have supported the case as made out by P.W. 4. Both the witnesses have stated that they had seen the appellant and other accused Xavier Kujur causing assault to deceased Johan Kujur. It appears that these two witnesses in their cross-examination have contradicted each other with respect to their arrival to the place of occurrence. I think it is not very much important because place of occurrence is nearer to the house of P.W. 7 and it was hardly at a distance of 40-50 ft. as stated by the witnesses. The appellant is also resident of same vicinity which is apparent from the description of place of occurrence given by the I.O. (P.W. 11). Therefore, I do not think that only because there are contradictions in the evidence of these witnesses as to who reached first at the place of occurrence, entire evidence cannot be discarded. I also keep it in mind that the witnesses are tribal and they are not much literate and acquainted with the procedure of trial and minor contradiction is expected to come while facing the legal expert in course for their cross examination and therefore we have to consider the evidence in its entirety. The informant as well as other witnesses have stated that the appellant and co-accused had assaulted the deceased by means of stick indiscriminately, but the Doctor has found only one injury on his head caused by hard and blunt substance. I would discuss the admissibility of confessional statement later, but at5.this juncture, the statement given by the accused is required to be referred. He has stated that the deceased had initiated the assault and thereafter the appellant and his father co-accused Xavier Kujur had scuffled with the deceased and in that course he caused assault to the deceased by means of Danda. It is often experienced that in such circumstances, the witnesses some time become so enthusiastic they they depose like this but the evidence that the deceased was assaulted by the appellant by means of stick, is completely intact. It is often experienced that in such circumstances, the witnesses some time become so enthusiastic they they depose like this but the evidence that the deceased was assaulted by the appellant by means of stick, is completely intact. This fact is also intact that the deceased had sustained injury on his head caused to him by means of stick and there was fracture of skull bone. Now, coming to confession of the accused made before the witnesses recorded by the police which has been marked as exhibit 9. The confessional statement of appellant Ranjit Kukjur was recorded in presence of witnesses Ilaju Gidh (P.W. 3), Patric Tigga (P.W. 10), Mariam Tigga (P.W. 9) and Phulmani Kujur. Out of these witnesses, except Phulmani, rest three have supported the fact that the appellant had given his confessional statement out of his free will without having any pressure. The confessional statement is also attested by co-accused Xavier Tigga who had given his L.T.I. On the basis of confession, stick allegedly used for causing assault was recovered from the house of the appellant. So, the recovery of weapon used can be taken into consideration in view of Section 27 of Evidence Act and the confession can be considered corroborative evidence. In this context, I do not feel that the contradictions with regard to length of stick recovered is very much important and it was not challenged before the court below that the stick which was recovered is not the same which was used for causing assault. No question on this point was put to the witnesses, who have supported recovery of the stick nor any contradiction, was taken in this regard from the mouth of I.O. (P.W. 11). 8. The next point which the learned counsel has raised is the delay in lodging the F.I.R. The occurrence took place on 14.5.1993 at 4 p.m. and it was not expected that the injured would succumb to his injuries and therefore no promptness was6.shown by the inmates in lodging the information, rather they were attending the injured to save his life. On the next day in the afternoon the injured succumbed to injuries after that on the following morning, fardbdyan of P.W. 4 was recorded in which she has tried to explain the delay by saying that no male member was there in the family and that caused delay in giving information to the police. On the next day in the afternoon the injured succumbed to injuries after that on the following morning, fardbdyan of P.W. 4 was recorded in which she has tried to explain the delay by saying that no male member was there in the family and that caused delay in giving information to the police. In this context, it is important whether delay in lodging the F.I.R. has caused any prejudice to the appellant in any manner? It is not a case in which either the F.I.R. was ante-dated or ante-time. From the evidence available on record it is also not indicative that any manipulation or exaggeration was made in the fardbeyan to implicate more and more persons of the family of the accused. Since I did not find the delay in lodging the F.I.R. causing any prejudice to the appellant, I do not feel that this delay shall be helpful to the appellant in getting acquittal. I would like to observe that conduct of the informant in the circumstance stated above was quite natural that first she tried to save her husband after he sustained injury. Being an illiterate lady, she was not very much prompt in reporting the matter to the police even after death of the deceased, which occurred on the following afternoon. Lastly it appears that the I.O. (P.W. 11) has committed some error in course of deposition in court and in para-1, he has wrongly stated that on 14.5.1993 he had been to the village of the informant for the purpose of recording fardbeyan and investigation. He has made it clear in para-11 of his deposition that the occurrence took place on 14.5.1993, but he had gone to the village on 16.5.1993. Besides, this inadvertent mistake, the I.O. had properly proved all the documents, like fardbeyan, confessional statement, inquest report, seizure list, formal F.I.R., etc. So far non examination of Madan Gope and Anand Baraik who are having their residence at the place of occurrence, the I.O. has clearly stated that they were not available. One of the witness has also stated that family members of those witnesses were not residing in the village. The place of occurrence described in para-2 of the deposition indicates that the accused7.as well as the deceased were having their houses towards North to the place of occurrence. 9. One of the witness has also stated that family members of those witnesses were not residing in the village. The place of occurrence described in para-2 of the deposition indicates that the accused7.as well as the deceased were having their houses towards North to the place of occurrence. 9. Last but not the least, I would like to discuss the point raised by learned counsel that on the same and similar points, Xavier Kujur was acquitted by the court below and therefore the appellant also deserves to be acquitted and at least should be given the benefits of doubt. It would not be out of place to mention that the learned Additional Sessions Judge, to some extent, was kind enough to the accused Xavier Kujur who was aged about 65 years at the relevant point of time, but it is not that the said Xavier Kujur was acquitted only on the humanitarian ground or the court was sympathetic to him because the learned Additional Sessions Judge had also distinguished the evidence with regard to present appellant and co-accused Xavier Kujur. I would also like to distinguish the evidence available against present appellant and the accused Xavier Kujur, who has been acquitted. It appears from the confessional statement of the appellant that he himself had admitted that he caused assault to the deceased on his head by means of a Danda. This confession of the appellant is supported by P.W. 3 in para-2. This fact has also been found in the statement of P.W. 7 in para-2 and she had stated in her cross-examination that it was Ranjit Kujur who caused assault to the deceased as a result he fell down. Furthermore, the learned Sessions Judge has not disbelieved the occurrence and the statement of witnesses while acquitting the co-accused Xavier Kujur and therefore this argument is not tenable that one co-accused has been acquitted and therefore the appellant also deserves acquittal. In view of the discussions made above, I do not feel inclined to make any interference in the findings given by the learned Sessions Judge, but considering the facts and circumstances available on record, status of the accused, I feel inclined to modify the sentence. Accordingly the R.I. for 10 years inflicted against the appellant u/s 304 I.P.C. is reduced to the period of 7 years R.I. and the period already undergone shall be set off. Accordingly the R.I. for 10 years inflicted against the appellant u/s 304 I.P.C. is reduced to the period of 7 years R.I. and the period already undergone shall be set off. The bail bond of the appellant stands cancelled and he is8.directed to surrender before learned Additional Sessions Judge/ successor in court within 60 days from today to serve out the punishment. If it is not being complied with, the learned Additional Sessions Jude/ successor in court shall issue required processes to secure attendance of convict Ranjit Kujur and after securing his attendance, shall issue warrant of conviction with modified sentence as above. This appeal stands dismissed with the modification in sentence, as aforesaid.