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Jharkhand High Court · body

2013 DIGILAW 85 (JHR)

Sukumar Modak v. State of Jharkhand

2013-01-16

D.N.PATEL, D.N.UPADHYAY

body2013
Order Per D.N. Patel, J.-The present appeal has been preferred against the judgment and order of conviction and sentence dated 11.9.2002 and 12.9.2002 respectively, passed by the learned 3rd Additional District & Sessions Judge, Dhanbad, in Sessions Trial No. 303 of 2000 whereby the appellant has been held guilty for offence under Sections 396/412 of the Indian Penal Code and accordingly he has been convicted under Section 396 IPC and sentenced to undergo rigorous imprisonment for life. Further, the appellant has also been convicted under Section 412 of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently. 2. It is the case of the prosecution that the informant Rekha Kumari PW-4 gave fardbeyan before the Police on 14.6.2000 that on 14.6.2000 at about 8.00 to 8.30 p.m. when she was in her house at Village-Chota Domgarh, P.S.-Sindri, within the district of Dhanbad with her mother (PW-3) and with her brother (PW9), suddenly, she heard loud noise outside her house. She came out of her house and then 6-7 accused persons forcibly entered into the house. One of them caught hold of the informant (PW-4) and the second person caught hold the mother of the informant; the third person, aged about 40 years, who was wearing kurta and pyjama, was standing in the veranda. Thereafter, several persons entered into the house and started taking away articles. Accused persons were carrying sharp cutting instruments like, bhujali, tangi and farsa in their hands and they threatened the informant not to raise alarms, otherwise, they would kill her. It is also stated by PW-4 Rekha Kumari that the accused persons assaulted her brother Kameshwar Mahato (PW-9) and injured him. It is further alleged by the informant (PW-4) that her driver Dilip Kumar Goswami protested this and thereupon the accused persons assaulted him with a bomb as a result of which he (Dilip Kumar Goswami) sustained injuries and fell down. Thereafter, the accused persons had taken away four suit cases, two bags, jewellery, the papers of the vehicle and the matriculation certificate of the brother of the informant. Accused persons fled away exploding one more bomb towards southern side of the river Damodar. Thereafter, the injured Dilip Goswami was taken to hospital where he expired. 3. Thereafter, the accused persons had taken away four suit cases, two bags, jewellery, the papers of the vehicle and the matriculation certificate of the brother of the informant. Accused persons fled away exploding one more bomb towards southern side of the river Damodar. Thereafter, the injured Dilip Goswami was taken to hospital where he expired. 3. On the basis of the fardbeyan of the informant PW-4 Sindri P.S. Case No. 54 of 2000 was registered, investigation was carried out. After completion of investigation, charge-sheet was submitted against the appellant, who faces the trial and was convicted by the learned trial court on the basis of the evidence given by PWs-1 to PW-11 and also on the basis of the deposition of the defence witness 1. Against the judgment and order of conviction passed by the trial court, the appellant has preferred this appeal. 4. We have heard counsel for the appellant who submitted that the prosecution has failed to prove the offence beyond all reasonable doubts, it is also submitted that the prosecution has failed to prove the seizure list and there is no signature of the accused persons upon the seizure list, though they were in custody, it is also submitted by the learned counsel that the intention on the part of the present appellant is not proved. Learned counsel for the appellant further submitted that the prosecution has failed to prove that the looted articles were recovered at the behest of the appellant under Section 27 of the Indian Evidence Act. It is further submitted by the learned counsel 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 and order of conviction and sentence of the appellant passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that the present appellant has not committed murder of the deceased Dilip Goswami because the other witnesses have stated that this appellant had not thrown bomb upon the deceased. It is further submitted by the learned counsel for the appellant that the present appellant has not committed murder of the deceased Dilip Goswami because the other witnesses have stated that this appellant had not thrown bomb upon the deceased. Moreover, it is further submitted by the learned counsel for the appellant that the appellant is in judicial custody since twelve years, six months and a few days and, therefore, as per section 396 of the Indian Penal Code, the appellant may be punished for ten years imprisonment and he may be enlarged as he has already undergone the sentence of 12 years, six months and a few days. 5. We have also heard learned Addl. P.P. who has vehemently submitted that the case of prosecution is based on the evidence of several eye witnesses who are PWs-1, 2, 3, 4 and 9. It has also been clearly stated by these witnesses that on the date of the incident (14.6.2000) several accused persons had entered into the house of the informant and the present appellant had caused injuries with the handle of an axe to PW-9 Kameshwar Mahato who is the brother of the informant (PW-4). They had also taken away several articles which has been proved by prosecution witnesses and this witness also identified the appellant. Moreover, in the test identification parade, PWs-1 and 9 had identified this appellant and the test Identification parade has also been proved by the deposition of PW-11, who is Judicial Magistrate, 1st Class. Thus, the learned trial court has not committed any error in appreciating the evidence of the prosecution witnesses. It is also submitted by the learned Addl. P.P. that at the behest of the appellant, several incriminating articles, which were looted, were seized. This fact has also been proved by the deposition of PW-8, especially looking to para 3 thereof. Thus, the appeal preferred by the appellant may not entertained by this Court and the order of conviction and sentence of the appellant by the trial court deserves to be affirmed. 6. Having heard learned counsel for both the sides and looking to the evidence on record that the incident took place on 14.6.2000, this is a case of dacoity with murder. 6. Having heard learned counsel for both the sides and looking to the evidence on record that the incident took place on 14.6.2000, this is a case of dacoity with murder. PW-4 is the informant who had given ‘fardbeyan’ before the police on 14.6.2000 that at about 8.00-8.30 p.m. when she was in her house with her mother PW-3 and her brother PW-9, some persons forcibly entered into her house. They were carrying sharp cutting weapons like bhujali, tangi and farsa and they had threatened the informant not to raise alarms or they would kill her. They also assaulted her brother PW-9 and had taken away several articles belonging to them i.e. 4 suit-cases, two bags, jewelry, papers of a vehicle, matriculation certificate of the brother of the informant. After committing dacoity, they had fled away exploding a bomb whereby by the Dilip Goswami, the driver of the informant, was injured and he died while he was being taken to hospital. On 22.6.2000, the accused persons were arrested and at the behest of this accused appellant, some of the looted articles had been recovered. Detailed panchnama was also drawn by the police by way of seizure list (Ext.-3). Thus, the case of the prosecution is based on the evidence of several eye witnesses and as they are relatives, we will closely examine the depositions of these witnesses. 7. Looking to the deposition of PW-1, he is the uncle of the informant and is an eye witness of the occurrence. Looking to his deposition, he has clearly stated that on the date of the incident, when they reached the house, several persons were in the house and as soon as Dilip Goswami alighted from the jeep, a bomb was exploded upon him by one of the accused persons as a result of which he sustained injuries and therefore this PW-1 remained in the jeep. Immediately thereafter, few of the accused persons came out of the house with suitcase, bags, etc. and ran away by exploding one more bomb. They ran away towards Damodar river Immediately he (PW-1) entered into the house and saw that there was a dacoity. PW-9, Kameshwar Mahato, the brother of the informant (PW-4) was injured by one of the accused persons. Looking to his deposition, it appears that he has also stated that he could identify the accused. They ran away towards Damodar river Immediately he (PW-1) entered into the house and saw that there was a dacoity. PW-9, Kameshwar Mahato, the brother of the informant (PW-4) was injured by one of the accused persons. Looking to his deposition, it appears that he has also stated that he could identify the accused. He also identified the present appellant in the test identification parade as well as in the dock during the course of his deposition. Looking to his deposition in the cross-examination, nothing is coming out in favour of the appellant. Thus, we have no reason to disbelieve the evidence of this eye witness (PW-1). 8. Looking to the deposition of Lakhan Mahato (PW-2), he is the father of the informant, and is also an eye witness of the occurrence. He had also come in the same jeep at his house with PW-1. He has also narrated the incident as per deposition given by PW-1 that a bomb was exploded upon Dilip Goswami (deceased) and thereafter the other accused persons came out of the house with several articles like suitcase, bags, jewelry etc. He had also seen the occurrence which he has narrated in detail. Looking to his cross examination, his examination-in-chief is intact. There is no omission, contradiction or improvement by this witness. He is also a trust worthy and reliable witness and the learned trial court has correctly appreciated the deposition of this eye witness. 9. Looking to the deposition of PW-3, Phul Kumari, the mother of the informant, she is also an eye witness and she has also identified the present appellant as per paragraph 8 of her deposition and it has been stated that the accused persons had taken away the articles from her house. Her deposition is also corroborative to the deposition of other PWs who are the eye witnesses. Her presence at the place of occurrence is natural, because she is the mother of the informant and she was in her own house. We see no reason to disbelieve this eye witness. Looking to her cross-examination, it appears that she has clearly narrated he incident without major omissions, contradictions and improvements. 10. Looking to the deposition of PW-4 Rekha Kumari, it appears that she is the informant and is an eye witness of the incident. We see no reason to disbelieve this eye witness. Looking to her cross-examination, it appears that she has clearly narrated he incident without major omissions, contradictions and improvements. 10. Looking to the deposition of PW-4 Rekha Kumari, it appears that she is the informant and is an eye witness of the incident. When she was in her house, the appellant along with the other accused persons forcibly entered into her house, armed with sharp cutting weapons like bhujali, tangi and farsa. They assaulted her brother Kameshwar Mahato (PW-9) and also threatened the informant (PW-4) not to raise alarms, and while fleeing away, they had taken away four suitcases, two bags and other articles as clearly narrated in her deposition. She has also stated that while fleeing away, they again exploded a bomb. She has also identified her signature on the fardbeyan (Ext.-1). She has also identified the appellant. Looking to her deposition in cross-examination, nothing is coming out in favour of the appellant. On the contrary, her version in examination-in-chief is being fortified during her cross-examination. 11. Looking to the deposition of PW-9 Kameshwar Mahato, he is brother of the informant and eye witness. He also sustained injuries as per his deposition at the hands of the present appellant accused, as stated by him in para 40 of his deposition. This witness also identified this appellant during the test identification parade held before the learned Judicial Magistrate (PW-11) and this witness, also identified the appellant in dock during his examination before the learned trial court. He has narrated the whole incident in detail without any exaggeration, major omissions, contradictions or improvements. His presence in his house is natural. He has also stated that he was an engineering student in Bangalore and had visited his house because of the vacation. Thus, we have no reason to disbelieve this eye witness who is trustworthy and reliable and his deposition is corroborative to the prosecution case and to the deposition of other eye witnesses. Learned trial court has correctly appreciated the deposition of these witnesses. 12. Looking to the deposition of PWs-7 and 8 (Mahadeo Kumar Singh and Anil Tuddu respectively), they are witnesses to the seizure-list. They have proved their signatures on the seizure list (Ext.-3) and the contents of the seizure-list has also been proved by these two witnesses. Learned trial court has correctly appreciated the deposition of these witnesses. 12. Looking to the deposition of PWs-7 and 8 (Mahadeo Kumar Singh and Anil Tuddu respectively), they are witnesses to the seizure-list. They have proved their signatures on the seizure list (Ext.-3) and the contents of the seizure-list has also been proved by these two witnesses. PW-7 Mahadeo Kumar Mahato has clearly narrated the articles which were seized, which is narrated by PW-10 in para 4 in his deposition. Moreover, PW-8 has stated in para 3 of his deposition that the looted articles were recovered at the behest of this appellant. Thus, the articles were recovered at the behest of this appellant as per section 27 of the Evidence Act. This statement of the appellant is a relevant statement of fact. 13. Looking to the deposition of PW-10 Kameshwar Singh, he is the investigating officer of the case. He has proved the inquest report as well as seizure list. He has given in detail his examination-in-chief as well as cross-examination and stated that the looted articles were recovered at the behest of this appellant. He has also narrated that PW-1 Rampukar Mahato and PW-9 Kameshwar Mahato had identified this appellant in the test identification parade held in presence of PW-11. 14. Looking to the deposition of PW-11 Akhilanand Dubey, he is a Judl. Magistrate, 1st Class, and he has proved the test identification parade (Ext.-6). He has stated before the learned trial court that PW-1 and PW-9 have identified this appellant. Thus, the deposition given by this PW-11 is also corroborative to the deposition of the eye witnesses and the prosecution case. 15. Looking to the deposition of PW-6, Dr. Shailendra Kumar, who had conducted post mortem examination on the dead body of the deceased, he had proved the post mortem report (Ext.-2) and had found following ante mortem injuries:- 1. Partially skin deep burn at siezing of hair 7½ x 6½ on the middle of back of chest over in vertebral column. 2. Abrasion:- ½ " x 10" in side flank of abdomen in middle ½ x ½ over left knee. On dissection, 4th & 5th Forecic vertebrate were found fractured and displaced (illegible) of spinal cord or at the site 4th & 5th ribs were also found fractured at the back on Lt. side' Lt. 2. Abrasion:- ½ " x 10" in side flank of abdomen in middle ½ x ½ over left knee. On dissection, 4th & 5th Forecic vertebrate were found fractured and displaced (illegible) of spinal cord or at the site 4th & 5th ribs were also found fractured at the back on Lt. side' Lt. layer was found continued and multiple small lacerations all over the neck of the body. Lt. side chest cavity contained blood and clots, heart was empty, stomach contain about 1000 cc of blackish fluid and no particular, small bladder was empty. All internal organs were pale including brain and meriyes.” Thus, looking to the deposition of the medical evidence of PW-6, the cause of death of the deceased was because of bomb injuries. Thus, the medical evidence corroborates to the ocular evidence given, by the eye witnesses in this case. These aspects of the matter have also been correctly appreciated by the trial court. Thus, looking to the evidence on record, the prosecution has proved the offence of dacoity with murder beyond all reasonable doubts. The present appellant was also present in the house at the time of commission of dacoity and murder at the time of incident. PWs-1 and 9 have identified this appellant on both occasion i.e. in the test identification parade as well as in dock during the course of their examination before the trial court. PW-9 has also stated that this appellant had caused injury with the help of the handle of an axe. Moreover other eye witnesses i.e. PW-3 the mother of the informant, PW-4, the informant herself and PW-2 have also clearly narrated the whole incident in detail and they have also identified the appellant during the course of their deposition before the trial court. Incriminating articles have also been seized on the basis of the statement made by this accused appellant. Thus, as per Section 27 of the Indian Evidence Act, the statement made by the appellant can be used against him. This fact has been proved by PW-8 (Anil Tudu). As per para 3 of his deposition, this fact has also been proved by the investigating officer PW-10. He has also deposed that some of the looted articles were recovered at the behest of the appellant. This fact has been proved by PW-8 (Anil Tudu). As per para 3 of his deposition, this fact has also been proved by the investigating officer PW-10. He has also deposed that some of the looted articles were recovered at the behest of the appellant. These aspects of the matter have been correctly appreciated by the learned trial court while convicting the appellant under section 396/412 of the Indian Penal Code and no error has been committed by the trial court in convicting and sentencing the appellant. Thus, there is no substance in this criminal appeal, which is fit to be dismissed. 16. We, therefore, dismiss this appeal and uphold the conviction and sentence passed by the learned trial court (Additional District & Sessions Judge, 3rd, Dhanbad) in Sessions Trial No. 303 of 2000. Learned counsel for the appellant submitted that the appellant may be punished for ten years IPC by converting conviction from murder to "culpable homicide not amounting to murder". We are not inclined to accept this contention looking to the evidence on record and the manner in which the offence has been committed. This is not a simple case of theft, but this is a case of dacoity with murder with the help of several other accused and even while running away, they had exploded one more bomb, to threaten the witnesses so that they may not inform the police. Intention of murder is evident from the evidence. Looking to the overall involvement of the present appellant in commission of the offence, we see no reason to reduce to the sentence.