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2015 DIGILAW 415 (JHR)

Dashrat Sao @ Lutan v. State of Jharkhand

2015-03-26

R.N.VERMA, R.R.PRASAD

body2015
JUDGMENT : This appeal is directed against the judgment of conviction dated 25.9.2006 and the order of sentence dated 26.9.2006, passed by learned 5th Addl. Sessions Judge, Giridih, in Sessions Trial No. 174 of 2003 whereby and whereunder the learned court below, having found the appellant guilty for committing murder of Surendra Ram @ Mutari Ram, convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 27 of the Arms Act with default clause. 2. The case of the prosecution is that on 13.2.2002 at about 8.00 A.M., the deceased Surendra Ram, step-brother of the informant-Shyamakant Ram (P.W. 4) was going towards a pond. When reached near the house of Jageshwar Vishwakarma, he saw the appellant taking earth from his field. Upon it, he asked the appellant as to why he is taking earth after digging the field which is to be filled with more earth. That led an altercation in between the appellant and the deceased. On the intervention of the villager-Hari Sao, both could be separated. Thereupon, Surendra Ram @ Mutari Ram remained near the house of Jogeshwar Vishwakarma whereas the appellant went towards his house. When the informant-Shyamakant Ram (P.W. 4) came to know that an altercation has taken place in between the deceased and the appellant, he became apprehensive that some untoward may not happen and, therefore, he along with Sanjit Kumar Gupta (P.W. 2), the step-brother of the deceased, rushed towards the house of Jogeshwar Vishwakarma and while they were 20 yards behind from the house of Jogeshwar Vishwakarma, they saw the appellant taking his bicycle by his hand coming near to his brother Surendra Ram and firing shot upon him. The persons, who were present over there, tried to apprehend the appellant, but none could apprehend him. 3. After the occurrence, Sanjit Kumar Gupta-P.W. 2-informed telephonically to Arun Kumar Singh, Officer-in-Charge (P.W. 6) of Jamua Police Station about the occurrence, who entered the said information in the station diary and proceeded to the place of occurrence. The persons, who were present over there, tried to apprehend the appellant, but none could apprehend him. 3. After the occurrence, Sanjit Kumar Gupta-P.W. 2-informed telephonically to Arun Kumar Singh, Officer-in-Charge (P.W. 6) of Jamua Police Station about the occurrence, who entered the said information in the station diary and proceeded to the place of occurrence. On reaching the place of occurrence, he recorded the fardbeyan of the informant-Shyamakant Ram (P.W. 4) wherein he stated about the fact which has been stated above. Upon it, a case was registered against the appellant and a formal first information report (Ext.-3) was drawn. He himself took up the investigation and during investigation, he held inquest on the dead body of the deceased and prepared an inquest report (Ext.-4). 4. Thereupon he sent the dead body for post mortem examination, which was conducted by a Medical Board consisting of Dr. Izhar Anwar (P.W. 3) and Dr. Ruben Hembrom (P.W. 7), who upon holding autopsy on the dead body of the deceased, found the following injuries on the person of the deceased:- Ante mortem wound on front of upper part of right half of chest. The shape of wound of entry was oval with long horizontal diameter 2" x vertical diameter 1 ". The margins were found inverted with laceration, blackening and tattooing of surrounding skin communicating with pleural cavity. On dissection, the Doctor did find the bullet embedded in the muscle which was extracted and was handed over to the Constable. The Medical Board issued post mortem examination report (Ext.-2) with an opinion that the death was caused due to haemorrhage and shock, on account of injury caused by firearm. 5. Meanwhile, the I.O. did record the statements of the witnesses and also made inspection of the place of occurrence. After completion of the investigation, the I.O. submitted charge-sheet. Upon which, cognizance of the offence was taken against the appellant and when the case was committed to the Court of Sessions, the appellant was put on trial. 6. During trial, the prosecution examined altogether seven witnesses. Of them P.W. 5-Jogeshwar Vishwakarma is a hearsay witness, whereas P.W. 1 Jugal Kishore Rai, PW. 2-Sanjit Kumar Gupta and P.W. 4-informant Shyamakant Ram are the eye witnesses to the occurrence, who did testify that they saw the appellant firing shot upon the deceased, causing injury, resulting into his death. 7. 6. During trial, the prosecution examined altogether seven witnesses. Of them P.W. 5-Jogeshwar Vishwakarma is a hearsay witness, whereas P.W. 1 Jugal Kishore Rai, PW. 2-Sanjit Kumar Gupta and P.W. 4-informant Shyamakant Ram are the eye witnesses to the occurrence, who did testify that they saw the appellant firing shot upon the deceased, causing injury, resulting into his death. 7. The trial court, having found the witnesses to be trustworthy, recorded the judgment of conviction and the order of sentence against the appellant, which is under challenge. 8. Mr. Deepak Kumar, learned counsel appearing for the appellant submits that it is the case of the prosecution itself that the deceased was shot dead by the appellant in presence of number of persons namely, Jageshwar Vishwakarma, Prem Mian, Dilchand Sao, Rameshwar Mahto, but none of them, who were the independent witnesses, except Jageshwar Vishwakarma, have been examined by the prosecution and thereby the independent witnesses have been withheld by the prosecution and hence, adverse inference be drawn against the prosecution, particularly when there is number of inconsistencies in the evidence of the witnesses. In this regard, it was pointed out that P.W. 1-Jugal Kishore Rai, though claimed himself to be an eye witness but other witnesses had not said in their evidences that at the place of occurrence, Jugal Kishore Rai was also present at the time of occurrence and that the evidence of P.W. 1 is not consistent with the evidence of P.W. 4 as P.W. 1 has testified that while the appellant, after firing shot upon the deceased, was going away, he was caught hold by Dilchand Sao, but P.W. 4 has testified that none, who were present at the place of occurrence, made an attempt to catch hold on him and that P.W. 1 in his evidence has testified that the deceased was shot at from close range whereas other witnesses P.Ws. 2 and 4 have testified otherwise that the shot was fired from a distance of 3 to 4 fts., and under these circumstances, the appellant deserves to be acquitted. 9. As against this, Mr. 2 and 4 have testified otherwise that the shot was fired from a distance of 3 to 4 fts., and under these circumstances, the appellant deserves to be acquitted. 9. As against this, Mr. M.B. Lal, learned counsel appearing for the State submits that it is true that number of persons, were present at the place of occurrence, but only Jageshwar Vishwakarma has been examined whereas other persons namely, Prem Mian, Dilchand Sao, and Rameshwar Mahto have not been examined, but on account of non-examination of those witnesses, no prejudice has been caused to the defence and thereby, the defence cannot take any benefit of it. 10. Further it was submitted that the testimony of the eye witnesses find corroboration from the medical report and also from the objective finding of the I.O. and under the circumstances, the trial court has rightly convicted the appellant and hence, the judgment of conviction and the order of sentence need not to be interfered with by this Court. 11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution, as has been testified by the informant P.W. 4 and P.W. 2, step and cousin brothers of the deceased as well as P.W. 1, that while they were in their house, when Harish Sao informed that altercation has taken place in between the appellant and the deceased, when the appellant had forbidden the deceased from taking earth from his field, they became quite apprehensive that something untoward may not happen and therefore, they rushed to the place of occurrence and while they were 20 fts. away from the house of Jogeshwar Vishwakarma, they saw the appellant coming by the side of the deceased and firing shot upon him. Thus, they appear to have testified about the place of occurrence, manner in which, the occurrence took place. Nothing has been elicited on behalf of the defence so as to make any dent in the testimonies of those witnesses. 12. The criticism, which has been made on behalf of the defence is that P.W. 1 in his evidence has testified that the appellant fired shot from a close range whereas other two witnesses have never said so, rather they have testified that they had fired shot from a distance. 12. The criticism, which has been made on behalf of the defence is that P.W. 1 in his evidence has testified that the appellant fired shot from a close range whereas other two witnesses have never said so, rather they have testified that they had fired shot from a distance. It is true that P.W. 1 at the first instance, has said that the shot was fired at from close range, but on the very next breath, he said that the shot was fired from a distance of 3 to 4 fts. which is in consonance with the evidence given in this regard by P.Ws. 2 and 4 wherein they have testified that shot was fired from a distance of 3 to 6 fts., which fact get corroboration from the medical evidence, as the Doctor did find blackening and tattooing over surrounding skin. 13. Further more, the genesis of the occurrence, which is said to be taking earth from the field of the informant, find support from the objective finding of the I.O., as the I.O. during inspection of the place of occurrence did find digging of earth in the field of the informant. 14. Thus, we do find that the prosecution has been able to establish his case beyond all reasonable doubt, in spite of the fact that other witnesses, who are said to be present at the place of occurrence, had not been examined by the prosecution, but their non-examination by the prosecution, do not effect the case of the prosecution adversely as nothing was there in the prosecution case to fill up the gap by adducing those witnesses, who have not been examined by the prosecution and, thereby, the appellant cannot be said to have been prejudiced in any manner on account of non-examination of the independent witnesses. 15. Thus, we do find that the learned trial court was absolutely justified in recording the judgment of conviction and the order of sentence and hence, the same is hereby affirmed. 16. In the result, this appeal stands dismissed.