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2014 DIGILAW 51 (JHR)

Lobhnath Ram v. State of Jharkhand

2014-01-08

D.N.PATEL, P.P.BHATT

body2014
JUDGMENT D.N. PATEL, J. 1. This appeal has been preferred against the judgment and order of conviction and sentence dated 16.1.2003 passed by the Sessions Judge, Simdega in Sessions Trial No. 224 of 2001 (G.R. No. 249 of 2000). This appellant has been convicted for committing offence punishable under Section 302 of I.P.C. for life imprisonment vide order dated 13 & 16 January, 2003. 2. The case of the prosecution is that on 07.10.2000 at 00:45 hours (i.e. 12.45 A.M.), the informant Smt. Turo Bai (P.W.1) gave ferdbayan to police that on 6.10.2000 at about 78 A.M., her husband Chinia Ram, deceased, and her brother-in-law Lobhnath Ram (accused) had gone to village Karamtoli, Duldula (Jashpur) for practicing Jharphuk. They returned to their house on same day at 2 P.M. with a gift of goat. At around 34 P.M. the said goat was butchered and both brothers took one K.G. of meat in their share. Then a quarter K.G. of meat was given to Jagmohan Ram and about half K.G. of meat was sold to Maheshwari Ram at a price of Rs. 25. After sharing the meat, informant husband and her brother-in-law, started logger heading and fighting for the head of the goat. Thereafter, when the informant was taking back her husband to the house, then her brother-in-law, Lobhnath Ram came with Balua from his house and in his countryard, near the Jackal tree, he assaulted the informant husband with Balua two-three times from behind, as a result, informant husband get injured and fall down. And, when informant raised hulla, then her nephew Jagmohan Ram came their running and snatched the Balua from the hand of Lobhnath Ram. Thereafter hearing hulla, Fulmani Devi, Ram Prasad Ram, Rajendra Prasad Sai and others persons came there and saw her husband in injured condition. Then informant narrated to them about the occurrence. Thereafter informant took her husband with the help of Fulmani Devi to her house and started preparing to take her husband to Kurdeg for treatment. In the meantime her husband died. 3. After lodging of the F.I.R. the investigation was carried out by the police and several statements of the witnesses were recorded. Thereafter informant took her husband with the help of Fulmani Devi to her house and started preparing to take her husband to Kurdeg for treatment. In the meantime her husband died. 3. After lodging of the F.I.R. the investigation was carried out by the police and several statements of the witnesses were recorded. The charge sheet was filed against this appellant-accused and the case was committed to the Sessions Court being Sessions Trial No. 224 of 2001 and on the basis of the evidence of the prosecution witnesses from the P.W.1 to P.W.10 and on the basis of the other documentary evidence on record, the learned trial court has convicted the appellant-accused for the offence of murder of the deceased on 13.1.2003 and has been sentenced for life imprisonment vide order dated 16.1.2003. Against this judgment and order of conviction, the present appeal has been preferred by the appellant. 4. We have heard the counsel appearing for the appellant and has mainly submitted that the learned trial court has not properly appreciated that in the depositions of the prosecution witnesses, there are major omissions and contradictions and the prosecution has failed to prove the offence of murder ought to have been committed by the appellant beyond reasonable doubt. Moreover, the so called eye witness P.W.1 is a close relative of the deceased i.e. wife and she is not eye witness at all looking to the cross examination and her depositions which has been scrutinized closely. The whole incident has taken place out of a very small difference between the two brothers. There was also scuffling between the two initially, and therefore, alternatively she has also argued that the offence punishable under Section 302 of the I.P.C. may be converted into the offence punishable under Section 304 B Part I or Part II of the I.P.C. In fact, there is no motive established by the prosecution and because of sudden fight and sudden provocation, the whole incident taken place. This aspect of the matter has not been properly appreciated by the learned trial court, otherwise, this appellant has already been remained in judicial custody for approximately 13 years and few months. It is also submitted by the counsel for the appellant that a number of injuries narrated by the so called eye witness P.W.1 is not tallying with the medical evidence given by the P.W.9. It is also submitted by the counsel for the appellant that a number of injuries narrated by the so called eye witness P.W.1 is not tallying with the medical evidence given by the P.W.9. Thus, there is a gross difference between the ocular evidence and the medical evidence. So far as other witnesses are concerned, P.W.2 is hostile witness, P.W.3 and 4 are hear say witnesses. P.W.5, P.W.6 and P.W.7 & P.W.8 have never seen the incident at all as per the depositions. Thus, the whole case of the prosecution is based upon one witness i.e. P.W.1 and she being the close relative i.e. wife of the deceased, and therefore, her deposition has to be scrutinized very closely and looking to her cross examination she has improved her version before the court material, and therefore also, the judgment and order of conviction and sentence passed by the trial court deserves to be quashed and set aside. 5. We have heard the learned A.P.P. appearing for the State, has submitted that no error has been committed by the learned trial court in evaluating the depositions of the prosecution witnesses. The case of the prosecution is based upon the eye witness who is wife of the deceased. There is no mistaken identity of the appellant accused as the appellant and the deceased are brothers. It is submitted by the A.P.P. that P.W.1 is clearly narrated the role played by this appellant accused for causing murder of his brother. The weapon Balua has been used, which is a sharp cutting instrument and P.W.1, who is an eye witness has stated that there was some hot altercation between the two brothers, and therefore, P.W.1, she being the wife of the deceased was dragging her at her house, but this appellant-accused brought the weapon Balua from his house, came nearby the house of the victim and caused several injuries upon the body of the victim, and therefore, the deceased expired on the spot. It is also submitted by the A.P.P. that nothing is coming out in cross examination in favour of this appellant-accused. Moreover, the depositions of P.W.1 is getting enough corroboration to the medical evidence given by the P.W.9, who is a doctor, Dr. K.D. Choudhary, and there are as many as five injuries which are capable of being caused by weapon Balua specially injury nos. 1, 2 and 5. Moreover, the depositions of P.W.1 is getting enough corroboration to the medical evidence given by the P.W.9, who is a doctor, Dr. K.D. Choudhary, and there are as many as five injuries which are capable of being caused by weapon Balua specially injury nos. 1, 2 and 5. It is also submitted by the learned A.P.P. that looking to the other depositions of the prosecution witnesses, though they are not the eye witnesses as like P.W.5, she has snatched the weapon from the hands of the appellant accused. Thus, the deposition of P.W.5 is also corroborative to the depositions of P.W.1 and the P.W.1 has also referred P.W.5 in her deposition. Thus, no error has been committed by the learned trial court in appreciating the evidence of P.W.1 and other prosecution witnesses, who are corroborating the deposition of the eye witness, and therefore, this appeal may not be entertained by this Court. 6. Having heard the counsel for both the sides and looking to the evidences on record, we see no reason to entertain this Criminal Appeal mainly for the following facts and reasons and the evidences on record:- (i) It is the case of the prosecution that P.W.1 Turo Bali, who is the wife of the deceased has lodged the F.I.R. on 7.10.2000 before the Kurdeg police station and has narrated the incident that this appellant-accused, who is brother and also the husband of the informant, they brought a goat and ultimately there was some dispute between the two and this appellant brought out sharp cutting instrument namely Balua from his house and rushed at the house of the victim and he gave several blows and the victim expired on the spot because of these injuries. She raised alarm and other persons came immediately hearing the alarm and the P.W.5 snatched away the weapon from the hands of the appellant-accused. She has also proved the First Information Report. Thus, it appears that the P.W.1, P.W.5, P.W.7, P.W.9 and P.W.10 are the important prosecution witnesses. For ready reference, the total prosecution witnesses, are as under:- PW-1 Turo Bali She is the wife of Chinia Ram (deceased) and is Eye witness of the occurrence. PW-2 Fulmani devi Declared Hostile witness. PW-3 Ram Prasad Singh He is a Hearsay witness. PW-4 Rajendra Prasad Sai He is a Hearsay witness. For ready reference, the total prosecution witnesses, are as under:- PW-1 Turo Bali She is the wife of Chinia Ram (deceased) and is Eye witness of the occurrence. PW-2 Fulmani devi Declared Hostile witness. PW-3 Ram Prasad Singh He is a Hearsay witness. PW-4 Rajendra Prasad Sai He is a Hearsay witness. PW-5 Jagmohan Ram He deposed that, after hearing the hulla, he came to the place of occurrence and snatched the Balwa from the hand of accused Lobhnath Ram. PW-6 Maheshwari Ram Tendered witness. PW-7 Ajar Sai He deposed that he came to the place of occurrence after hearing the hulla and saw the dead body of deceased Chinia Ram. PW-8 Brijnandan Sai Tendered witness PW-9 Dr. K.D. Chaudhary He is a doctor, who has conducted the post-mortem of the dead body of Chinia Ram and proved the post mortem report i.e. marked as Ext.1 PW-10 Krishna Ram He is the Investigating Officer of this case. He has proved the Fardbeyan i.e. marked as Ext. 2 and also proved the carbon copy of Inquest report i.e. marked as Ext.3. He proved the seizure list i.e. marked as Ext.4 Looking to the depositions of P.W.1, it appears that the P.W.1 is wife of the deceased. She is the eye witness. She has clearly narrated the role played by the appellant accused in causing murder of the deceased. The deceased and the appellant are the brothers. The whole dispute has arisen because some of the food items have to be prepared out of the head of the goat and because of this, both the brothers i.e. the deceased and the appellant had some hot altercation, and therefore, the informant, who is P.W.1, dragged her husband at her house and this appellant brought out a sharp cutting instrument namely Balua from his house, came nearby the house of the deceased and caused several injuries so that the deceased expired on the spot. Looking to her overall depositions before the learned trial court, it appears that she is a natural witness. Her presence on the scene of offence is also natural one. She has narrated the whole incident without any exaggeration and without any material contradiction and without material improvements. Even looking to her cross examination, her examination in chief has remained intact and as it is. Even looking to her cross examination, nothing is coming out in favour of this appellant-accused. She has narrated the whole incident without any exaggeration and without any material contradiction and without material improvements. Even looking to her cross examination, her examination in chief has remained intact and as it is. Even looking to her cross examination, nothing is coming out in favour of this appellant-accused. Even during her cross examination, she has stated what she has seen as a witness without major omission and contradiction. She has also referred several other witnesses who are concerned and are examined as prosecution witnesses, like P.W.5 etc., who had snatched away the weapon from the hand of the appellant accused. She also narrated the place of scene of occurrence in detail. Thus, looking to her examination before the learned trial court, she is a trustworthy and reliable witness and no error has been committed by learned trial court in appreciating her evidence as P.W.1 eye witness. This P.W.1 has also narrated in detail the injuries sustained by her husband the deceased. This is also getting corroboration from the medical evidence given by the P.W.9. (ii) Looking to the depositions given by the P.W.5, Jagmohan Ram, it appears that he rushed to the place of scene of offence immediately after the occurrence hearing the alarm of P.W.1. This witness has also stated before the learned trial court that he had snatched the weapon Balua from the hands of the appellant-accused. Looking to his cross examination, it appears that her examination in chief has remained intact and as it is. The version given in examination in chief is not being shaken at all. Though, P.W.5 is not an eye witness. P.W.5 is material witness. So far as narration of the facts immediately after the occurrence is concerned, looking to the overall evidence given by the P.W.5, he is a trustworthy and reliable witness and P.W.5 has given enough corroboration to the depositions given by the eye witness P.W.1 about the time of occurrence, place of occurrence, the weapon used and the presence of the accused along with weapon and the identity of the deceased. (iii) Looking to the deposition of P.W.7, it appears that though P.W.7 is not eye witness, this witness has also rushed to the place of occurrence immediately after hearing the alarm of P.W.1 and other persons. This P.W.7 has seen the dead body of the deceased Chinia Ram. (iii) Looking to the deposition of P.W.7, it appears that though P.W.7 is not eye witness, this witness has also rushed to the place of occurrence immediately after hearing the alarm of P.W.1 and other persons. This P.W.7 has seen the dead body of the deceased Chinia Ram. Thus, this witness is also proving the place of occurrence, the time and presence of other persons including the appellant. Even looking to his cross examination, this aspect of the matter remained intact and as it is. (iv) Looking to the depositions given by the P.W.9, Dr. K.D. Choudhary, who had carried out the post mortem upon the body of the deceased, which is at Ex.1, following were the injuries sustained by the deceased as per the deposition : External Injuries – (i) Incised wound 3” x 2” x 1” over the medial side and upper side of right arm with fracture of upper portion of right humerous bone. (ii) Incised wound 5” x 4” x 2” over the lateral side of right upper chest with fracture of 5th, 6th 7th and 8th ribs above 1½” lateral to right mammary gland. (iii) Incised wound 2 ½” x 1½” x skin deep over the right waist. (iv) Incised wound 2½” x 1/2” x skin deep over the right elbow joint in the extensor surface. (v) Incised wound 7” x 1/2” x 3” over the back of neck with fracture of cervical vertebrate. Internal Examination – Brain and its meninges were pale, right side of lungs was incise with blood clot in thoracic cavity, Larynx and trachea pale, Both chambers of hears were empty. Large vessels were collapsed, stomach empty. All the abdominal organs were pale. All the injuries were ante mortem and caused by sharp cutting weapon such a Balua. Injuries no. (i), (ii) and & (v) were grievous, whereas injury no. (iii) and (iv) were simple. Looking to the aforesaid injuries, it appears that the injury no. 1, 2 and 5 are the grievous in nature and capable of being caused by sharp cutting instrument Balua. The deposition of P.W.9 is getting enough corroboration to the depositions given by the eye witness P.W.1. Thus, the ocular evidence and the medical evidence are not in contradiction with each other, on the contrary, they are in consonance with each other. The deposition of P.W.9 is getting enough corroboration to the depositions given by the eye witness P.W.1. Thus, the ocular evidence and the medical evidence are not in contradiction with each other, on the contrary, they are in consonance with each other. The argument canvassed by the counsel for the appellant that the P.W.1 has narrated only four injuries whereas the dead body has five injuries as per the post mortem report, and therefore, there is contradiction in the ocular evidence as well as medical evidence. This contention of the appellant is not accepted by this Court mainly for the reasons that the P.W.1 is a villager and she is not a doctor or an engineer. She has narrated the whole incident in her own language nor this P.W.1 is mathematician. There may be error of 4 or 5, but looking to the over all depositions given by the P.W.1eye witness and wife of the deceased as stated hereinafter, she is a trustworthy and reliable witness. She has not exaggerated the incident nor there is any material omission and contradiction in her deposition. The weapon alleged in the hand of the appellant by the eye witness is also tallying and therefore, we see no reason to accept the argument canvassed by the counsel for the appellant. 7. Looking to the depositions of P.W.10, Krishna Ram, the Investigating Officer, who has proved the ferdbayan, Exh.2, Inquest Report Exh.3, Seizure List, Exh.4 and the place of occurrence. The deposition of this Investigating Officer is also corroborative to the depositions given by the eye witness P.W.1. The learned trial court has not committed any error in appreciating these evidences on record. The prosecution has established that this appellant has committed murder of the deceased beyond reasonable doubt. 8. It is also submitted by the counsel for the appellant that the P.W.1 is the only eye witness and she is a close relative of the deceased and therefore, her deposition may not be accepted by this Court. This contention is not accepted by this Court mainly for the reason that the court is not in search of the quantity of the witnesses, but the Court is always in search of the qualities of the evidence. Even one witness can establish the murder if that witness is a trustworthy and reliable. This contention is not accepted by this Court mainly for the reason that the court is not in search of the quantity of the witnesses, but the Court is always in search of the qualities of the evidence. Even one witness can establish the murder if that witness is a trustworthy and reliable. Looking to the overall deposition of P.W.1, her presence at the scene of the offence, as stated hereinabove, is a natural one. She has not exaggerated her version than what has been stated in the F.I.R. Even in her cross examination, she has stated the facts which were seen by her. She has proved the place of occurrence, the weapon was used by the appellant, the identity of the appellant, the identity of the deceased and the manner in which the whole occurrence has taken place. That appellant brought out the sharp cutting instrument from his house, came nearby the house of the victim and has caused several blows upon the body of the husband of the P.W.1 and the blows were so severe that the husband of the P.W.1 expired on the spot. Her deposition is also getting enough corroboration from the depositions of the other prosecution witnesses specially P.Ws. 5, 7, 9 and P.W.10, and therefore, even if there is one eye witness, learned trial court has relied upon the deposition of P.W.1 and no error has been committed by the trial court in punishing the present appellant for causing murder of the deceased. 9. Looking to the statement given by the appellant accused under Section 313 of the Cr. P.C. nothing special has been stated by the appellant accused about the incident, except the denial. 10. As a cumulative effect of the aforesaid facts and the reasons and evidences on record, the prosecution has proved the offence of murder to have been committed by the appellant beyond reasonable doubt and no error has been committed by the learned trial court in appreciating the evidences on record and in convicting and sentencing this appellant accused. This appeal, therefore, fails, and is, hereby, dismissed.