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2014 DIGILAW 1039 (JHR)

Manjhi Tudu @ Dhena Tudu v. State of Jharkhand

2014-10-15

R.R.PRASAD, RONGON MUKHOPADHYAY

body2014
JUDGMENT 1. This appeal is directed against the judgment of conviction and the order of sentence dated 17.09.2004 passed by the 1st Addl. Sessions Judge, Pakur in Sessions Case No.79 of 2004 whereby the appellants having been found guilty for committing murder of Shyamlal Hembrom, have been convicted for the offence punishable under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and were further sentenced to pay fine of Rs.5000/-and in default to undergo imprisonment for one year. 2. It is the case of the prosecution that in the night of 18/19 March, 2004 at about 11.00 P.M., the appellant No.1 Manjhi Tudu came to the house of the Dular Hembrom, the informant (P.W.7) with Patal Hembrom (P.W.2) and Karla Hembrom sons of the deceased-Shyamlal Hembrom. When the informant asked from Manjhi Tudu about whereabouts of Shyamlal Hembrom, he told her that he is not there and then left the place. Thereafter, Patal Hembrom (P.W.2) son of the deceased, disclosed to the informant (P.W.7) that his maternal Grand Father (appellant No.1-Manjhi Tudu) as well as maternal Uncles, appellant Nos.2 & 3 -Rameshwar Tudu and Dene Tudu have killed his father, by assaulting with Gaita and Danda, which are there in the house. On knowing this, P.W.7 along with village Pradhan-Likhan Kisku (P.W.1), Pramanik and Dharmnath Kisku (P.W.3), came to the house of the deceased-Shyamlal Hembrom where they found the dead body lying on the ground. There they also found Gaita and Lathi lying there smeared with blood. That apart mattress upon which the dead body was lying was also smeared with blood. After noticing this, P.W.1, came to the police station to inform about the occurrence to the police. On getting information, I.O. (P.W.7), along with Officer-in-Charge came to the place of occurrence where the Officer-in-Charge of Amrapara Police Station, namely, S.S. Tiwary recorded the fardbeyan (Ext.3) of the informant (P.W.7) who gave the same story as has been narrated above and also stated about the motive of the occurrence wherein the informant stated that the deceased had gone to Haat for selling meat along with the appellant No.2 Rameshwar Tudu. There, the deceased sold meat to someone without taking price. That annoyed Rameshwar Tudu and out of annoyance, he assaulted the deceased. There, the deceased sold meat to someone without taking price. That annoyed Rameshwar Tudu and out of annoyance, he assaulted the deceased. When the deceased came home, he expressed his anger to his wife and told her that he will kill her as well as her brother Rameshwar Tudu. 3. The I.O. after taking over the investigation of the case, seized Gaita and Lathi smeared with the blood under the seizure list (Ext.5). Inquest report was prepared as (Ext.4), Thereafter, the dead body was sent for post mortem examination, which was conducted by Dr L.K. Bhagat (P.W.5). The Doctor did find the following external injuries:- (i) One Lacerated wound over upper neck just below chick 2”x1/2”x1/2”. (ii) One Lacerated wound over face just right side of mouth 2”x1/2”x1/2” (iii) One Lacerated wound near right ear 2”x1/2”x1/2”. (iv) One Lacerated wound over scalp at right parietal region 2”x1/2”x1/2”. (v) One lacerated wound over scalp at right occipital region 2”x1/2”X1/2” Upon deception:- (I) Head and Neck: on opening of scalp injury of brain was found at parietal and occipital region. In upper part of neck, injuries of neck, blood vessels and nerves were found. (II) Thorax: on opening of thorax both lungs and heart were found pale. (III) Abdomen: on opening of abdomen stomach was found containing undigested food. Time elapsed since death was found within 18 to 24 hours. The Doctor prepared post mortem report (Ext.2) with an opinion that the death was caused due to hemorrhage and shock caused by injuries of brain by heavy hard blunt substance. 4. On completion of the investigation, the charge sheet was submitted against all the three appellants. Accordingly, cognizance of the offences was taken and the case was committed to the court of Sessions where the appellants were put on trial, during which the prosecution examined as many as eight witnesses. Of them P.W.1-Likhan Kisku and P.W.3-Dharmnath Kisku have testified that when the informant (P.W.7) informed them about the occurrence, they came to the place of occurrence and found the dead body lying over the mattress, which was smeared with blood. Apart from that they also saw Gaita and Lathi there smeared with blood. According to P.W.1, he informed to the police Station. The police reached to the place of occurrence and recorded the fardbeyan of the informant. Apart from that they also saw Gaita and Lathi there smeared with blood. According to P.W.1, he informed to the police Station. The police reached to the place of occurrence and recorded the fardbeyan of the informant. P.W.-4-Barsan Kisku has testified that the informant had asked him to stay in the night in the house of the deceased, P.W.6-Debilal Hembrom happens to be an hearsay witness. According to him, Chutar Hembrom, who is said to be the son of the deceased, disclosed him that the appellants had killed the deceased. P.W.7 (the informant) has testified in the same manner, as she had given the statement in her fardbeyan. P.W.2-Patal Hembrom, son of the deceased, happens to be the sole eye witness. According to him, it were the appellants, who assaulted his father-the deceased with Gaita and Lathi, as a result of which, he died. 5. After closure of the prosecution case, incriminating evidences appearing against the appellants were explained to him under Section 313 Cr.P.C., which the appellants denied. 6. The trial court, having found the testimony of P.W.2 reliable getting corroboration from the medical evidence and also from the objective finding, recorded the order of conviction and sentence as aforesaid. 7. Being aggrieved with that order, this appeal has been preferred by the appellants. 8. Mr. K.K. Ojha, learned counsel appearing for the appellants submits that admittedly P.W.2, son of the deceased, happens to be the child witness and the child witness is very prone to be tutored and, thereby, in absence of any corroboration from any other witnesses, the court should not have relied upon the testimony of P.W.2. Further it was submitted that according to P.W.1, he had reported the matter before the police, which according to him, was recorded by the police and he had ever put LTI over it, but that piece of document has not been brought by the prosecution probably for the reason that it may not have supported the case of the prosecution and, thereby, adverse inference be drawn against the case of the prosecution and under the circumstances, the judgment of conviction and sentence is fit to be set aside. 9. 9. As against this, learned counsel appearing for the State submits that nothing has been elicited from the eye witness so as to discard the testimony of P.W.2, who though is child witness, but nothing is there to establish that he upon being tutored, has testified in the court and, thereby the court has rightly placed its reliance. 10. Question of P.W.2 being tutored never does arise in the facts and circumstances of the case. P.W.2, immediately after the occurrence when was brought to the house of P.W.7 by one of the appellants-maternal Grand Father, disclosed to the informant (P.W.7) that the appellants have committed murder of his father, which fact has also been testified by the P.W.7 and is also there in her fardbeyan. 11. From the evidence of P.W.2, it does appear that he has testified to the effect that the appellants had assaulted the deceased with Gaita and Lathi. On such disclosure being made by P.W.2, the informant-P.W.7 along with P.W.1 and P.W.3, came to the house of the deceased where they found the deceased lying on a Mattress, which was smeared with blood. There they also found Gaita and Lathi smeared with blood and the same have been seized by the I.O. The Mattress upon which the deceased was lying dead was also smeared with blood. Thus, it is evident that the testimony of P.W.2 gets corroboration by the objective finding of the I.O. Not only that the testimony of P.W.2 also gets corroboration from the medical evidence whereby the Doctor did notice number of injuries on the person of the deceased, which according to Doctor, P.W.5 have been caused by heavy hard blunt substance and under the circumstances, there has been no reason to discard the testimony of the child witness. 12. It be stated that P.W.1 has said in his cross-examination that upon knowing the occurrence, he informed to the police station, which was recored by the Police but P.W.8, the I.O. has denied this fact wherein he has testified that it is not correct to say that the statement given by P.W.1 had been reduced in writing, which does suggest that P.W.1 may have given information to the Police Station and only upon getting such information, the police reached to the place of occurrence. 13. 13. Under the circumstances, the testimony of P.W.1 to the effect as indicated above, will never have any adverse effect over the case of the prosecution. 14. Accordingly, we do find that the trial court has rightly recorded the order of conviction and sentence against the appellants and hence, it is affirmed. 15. Since the appellant No.1 is on bail, his bail bond is hereby cancelled and is directed to be taken into custody immediately for serving out the sentence. 16. In the result, this appeal is dismissed.