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2016 DIGILAW 288 (JHR)

Lokeshwar Kumhar v. State of Jharkhand

2016-02-08

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This appeal has been directed against the judgment of conviction and order of sentence dated 20.05.2004, passed by Addl. Judicial Commissioner, Fast Track Court-9, Ranchi in connection with Sessions Trial No. 631 of 1992 corresponding to Ranchi, Silli P.S. Case No. 36 of 1990, G.R. Case No. 2363 of 1990 whereby the appellants have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. The facts, emerge from the First Information Report, are that on 16.07.1990 at about 5.30 a.m. Gobardhan Kumhar (deceased) had left home for ploughing the field situated at Nimbad. The informant noticed the appellants having Farsa in their hand, following the deceased with their two associates having bag in their hand. No sooner Gobardhan Kumhar reached near the Bari (field) of Dharma, the informant heard sound of explosion. The informant with his niece Laxmi ran towards the place of occurrence and saw both the appellants hurling blows by means of Farsa causing injury to Gobardhan. On hulla other villagers assembled whereafter the appellants with their associates fled away. The informant gave information to the police on 17.07.1990 which was reduced to writing and on the basis of information lodged by Ramcharan Kumhar, Ranchi, Silli P.S. Case No.36 of 1990 under Section 302/34 of the Indian Penal Code and Section 3/5 of the Explosive Substance Act against the appellants and two unknown persons was registered. The police, after securing attendance of appellants and also after collecting evidence, submitted charge-sheet and accordingly, cognizance was taken and case was committed to the court of sessions and registered as Sessions Trial No.631 of 1992. The appellants were charged for the offence punishable under Section 302/34 of the Indian Penal Code and they were put on trial. To substantiate the charge prosecution has examined altogether 12 witnesses and proved documents like inquest report, post mortem report, seizure list and First Information Report etc. The learned Addl. Judicial Commissioner, placing reliance on the evidence and documents, held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code and Sentenced them, as indicated above. 3. The learned Addl. Judicial Commissioner, placing reliance on the evidence and documents, held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code and Sentenced them, as indicated above. 3. The appellants have assailed the impugned judgment of conviction and sentence mainly on the ground that nobody had seen the occurrence, there was delay in lodging the First Information Report and the explanation extended for the delay is not tenable. The informant Ramcharan Kumhar PW1 and Laxmi Bala (daughter of the deceased) PW2 have projected themselves as eye witnesses and tried to describe entire occurrence in their deposition but considering the contradictions and inconsistencies, the testimonies of aforesaid two witnesses are required to discarded. Enmity prevailing between family of the appellants and the deceased is admitted. It is admitted that father of appellants was murdered in which informant was an accused. If the situation was so grave between the two families, it was expected that after seeing the appellants following the deceased armed with Farsa in their hand and that too with two unknown persons, the deceased could have been cautioned or some sort of precaution could have been extended from the informant. The place of occurrence was not visible from the house of informant and that has come in their deposition when they were cross-examined. None of the eye witnesses has said that they had seen any of the accused hurling bomb rather evidence on record speaks that the witnesses reached to the place of occurrence after hearing sound of explosion. PW1 to PW3 have stated that they had seen these appellants inflicting Farsa blows to deceased. This story is also not believable for the reason that Dr. Ajit Kumar Choudhary PW6, who had conducted autopsy on the dead body of Gobardhan, has noticed only one cut injury on the palm extended up to wrist. The eye witnesses have stated that repeated blows by these appellants by means of Farsa were being given but the deceased was having only one cut injury on his palm. Ajit Kumar Choudhary PW6, who had conducted autopsy on the dead body of Gobardhan, has noticed only one cut injury on the palm extended up to wrist. The eye witnesses have stated that repeated blows by these appellants by means of Farsa were being given but the deceased was having only one cut injury on his palm. This argument also find support from the fact that no information was lodged to police on the date of incident though the occurrence took place in the early morning at 5.30 a.m. If the version of the informant is taken to be true that he had informed the police just after the incident, then what happened to that information, is not before us. Furthermore, none of the villagers who had assembled at the place of occurrence after the incident, disclosed name of the assailants. They have stated before the court that they did not know name of the assailants as to who killed Gobardhan. The unbelievable statement of the witnesses on the point of manner of assault, delay in lodging the First Information Report, nondisclosure of name of the assailants by independent witnesses go to show that Gobardhan was killed by someone and the dead body was lying in the field which was noticed later by the informant and other family members and they have named the appellants after giving thought. Implication of appellants with false allegation considering the enmity prevailing between the parties could not be ruled out. On the point of delay, it is vehemently argued that the informant has stated that he had gone to Ranchi to inform son of the deceased but at the same time, he admits that he returned back to village with son of the deceased by 3-4 O'clock in the afternoon. If the informant with the son of deceased had returned to village by 4 O'clock in the evening, what prevented him to go to the police station to lodge F.I.R. As a matter of fact, the informant and other family members, after consulting with each other, have decided to implicate the appellants in the alleged murder of Gobardhan in order to save themselves and also to take revenge. If the informant had given information to the police on the date of occurrence itself, then why the police did not take action is a question to be answered. If the informant had given information to the police on the date of occurrence itself, then why the police did not take action is a question to be answered. The I.O. did not investigate into the matter as to whether any information regarding murder of Gobardhan was given to any police officials on 16.07.1990. No investigation was done on this point. According to Investigating Officer PW-12, the appellants were apprehended within a week but he did not take effort to recover the weapon used for the crime. The blood stained cloth and blood stained soil have been seized from the place of occurrence and it were sent to F.S.L. but no report from F.S.L. has been brought on record by the prosecution. The learned Addl. Judicial Commissioner has failed to address all these questions and therefore, the findings of the trial judge is liable to be set aside. 4. Learned A.P.P. has opposed the argument and submitted that PW-1 and PW-2 are natural witnesses. They were present in the house on that unfortunate morning. They had seen the deceased leaving the house and he was going to plough the filed. These two witnesses had also seen the appellants with their associates following the deceased and within no time when they got opportunity, they caused injury to the deceased by exploding bomb and further inflicted Farsa blows causing injury to him and the assault so caused, was witnessed by PW-1 and PW-2. The evidence given by PW-1 and PW-2 is consistent and it is being corroborated by PW-3 who is non-else but son of the deceased. He has also corroborated the prosecution case, as made out by the informant. So far as the villagers are concerned, they are either witness to the inquest or the seizure list and they have supported that part of investigation. Since other villagers did not claim that they had seen the occurrence, question of naming the assailant does not arise. The ocular evidence brought on record by PW-1 to PW-3 find support from the evidence of Dr. Ajit Kumar PW-6. The prosecution case is intact and the learned Addl. Judicial Commissioner has rightly held the appellants guilty and the judgment of conviction and sentence needs no interference. 5. Heard rival submissions and perused the case record as well as the judgment impugned. Ajit Kumar PW-6. The prosecution case is intact and the learned Addl. Judicial Commissioner has rightly held the appellants guilty and the judgment of conviction and sentence needs no interference. 5. Heard rival submissions and perused the case record as well as the judgment impugned. The main question i.e. delay in lodging the F.I.R. raised by the appellants need to be addressed. We have carefully gone through the First Information Report which was recorded on 17.07.1990 at 4 a.m. in the early morning at Silli Police Station and according to formal F.I.R., the place of occurrence from Police Station is about 25 k.m. The informant has stated that after the occurrence he had gone to the police station to lodge information but it was not recorded because no police officer was present rather 2-3 constables were present. The informant after giving oral information went back and he had gone to Ranchi to inform son of the deceased. The admitted evidence on record is that the informant returned back with son of the deceased from Ranchi to the village at 4.00 O'clock in the evening. It is also admitted fact that till then no police officer had visited the village or the place of occurrence. It is apparent from the evidence on record that disclosure about the occurrence made by the informant to police constables present at the police station was not reduced to writing. If it was not reduced to writing, it will not fulfill requirement of Section 154 Cr.P.C. It was also not on record as to what sort of information was given to those police constables who were present at the police station. Whether that disclosure about the occurrence made by the informant to those police constables was sufficient to constitute an information regarding commission of cognizable offence as required under Section 154 Cr.P.C.. We do not find either the prosecution or the defence has brought any evidence on record. We feel it desirable to record that conduct of the informant was quite natural that after the occurrence he had gone to police station to give information but it was not reduced to writing due to absence of competent police officer and for the lache, if committed by any police officer, the aggrieved will not suffer. We feel it desirable to record that conduct of the informant was quite natural that after the occurrence he had gone to police station to give information but it was not reduced to writing due to absence of competent police officer and for the lache, if committed by any police officer, the aggrieved will not suffer. What was expected from a villager who had seen commission of murder, was done by him when he went to police station to give information. Again the conduct of the informant could not be viewed with any suspicion when he says that after informing those police constables he went to Ranchi to inform son of the deceased and returned back to village at about 4 p.m. in the evening. The bereaved family were waiting for action at the end of police but they did not come to village to take any action till evening and thereafter the informant had again visited police station and that too after covering distance of 25 k.m. during night and gave his statement at 4 a.m. early in the morning and that information was reduced to writing and signed by the informant and that is the First Information Report as per Section 154 of the Cr.P.C. Thereafter, the police came in action, visited the village, prepared inquest report, seized blood stained cloth and blood stained soil from the place of occurrence and then the dead body was removed for its post mortem examination. The statement of other witnesses were recorded and other formalities of the investigation were done by the I.O. No question has been put to the I.O. or it is not even argued before this Court that the dead body, in any manner, was either removed from the place of occurrence or the murder was done somewhere else and the dead body was thrown at the place. The description of place of occurrence and the articles seized and also in view of the eye witness account of the occurrence, we do not find that prosecution has failed to prove the place of occurrence. It is argued that the informant in his First Information Report has stated that the occurrence took place near the Bari of Dharma but the dead body was recovered from the middle of the Bari. It is also pointed out that the Bari was fenced with mud wall. It is argued that the informant in his First Information Report has stated that the occurrence took place near the Bari of Dharma but the dead body was recovered from the middle of the Bari. It is also pointed out that the Bari was fenced with mud wall. If it was so, how the dead body was found lying within the Bari of Dharma. The evidence on record also speaks that fencing of the Bari was broken at places. The evidence of PW1 and PW2 is clear that the occurrence took place when the deceased reached near the Bari of Dharma. It is not very clear whether the deceased was going on road adjacent to that Bari or he was passing through the Bari of Dharma in order to reach his field at Nimwad. PW-1 and PW-2 have not claimed that they had seen entire episode. They have stated that when the deceased left home for going to Nimbad field in order to plough, he was followed by the appellants and their associates. PW-2 says that she went back inside the house to discharge some domestic work whereas PW-1 says that he was present near the house. They were attracted towards the place of occurrence after hearing explosion of bomb. They did not say that they had seen those unknown accused who were accompanying the appellants, hurling bomb and therefore, we do not find any exaggeration in their statement. What they have said before the court is that after hearing sound of explosion they ran towards the place of occurrence and they had seen the appellants inflicting blows by means of Farsa on the person of the deceased. The doctor noticed sharp cut injury on the palm extending up to ulna and that injury has been explained by PW-1 and PW-2 both. Therefore, the ocular account of occurrence find support from medical report. The injuries caused due to explosion of bomb were also appearing on the person of deceased, the splinters were found lodged in the body, the remnants were recovered from the place of occurrence, blood stained soil were seized and blood stained cloth of the deceased were seized from the place of occurrence. Therefore, within no stretch of imagination it could be said that place of occurrence has not been proved by the prosecution. 6. Therefore, within no stretch of imagination it could be said that place of occurrence has not been proved by the prosecution. 6. It was argued that PW-3 has projected himself as eye witness but his presence was not noticed by PW-1 and PW-2 who are non-else but brother and daughter of deceased. Even the statement of PW-3 is discarded from any consideration, the evidence of PW-1 and PW-2 stand intact. PW-3 is the son of deceased. He has stated that after PW-1 and PW-2 reached to the place of occurrence, he reached to the place. The manner of occurrence is apparent from the evidence on record. The deceased was killed by using bomb and he had sustained lacerated wound in his abdomen and his intestine were protruded. One can imagine in what condition the deceased would have been lying at the place of occurrence and after seeing dead body of deceased, what would have been the mental condition of the family members and in that state of mind it is not expected that they would notice each and every happenings at the place of occurrence. Furthermore, it was vehemently argued that no villagers assembled at the place, had named the appellants as offenders of the crime. We have carefully examined the evidence of PW-10 and PW-11. They are the witnesses to the seizure and inquest. They have stated that they reached to the place of occurrence after the police arrived and investigation was going on. It is not on record that these witnesses had ever talked to the informant or his family members at any point of time after the occurrence was over. None of the eye witnesses have stated in their deposition that they had ever disclosed about the occurrence to these witnesses. We do not find any evidence on record that the informant had ever gone to disclose about the occurrence or had named the assailants before the villagers rather action taken by him has already been explained in the preceding paragraph. None of the villagers have claimed that they had seen the assailants and therefore, question of naming the appellants does not arise. None of the villagers have claimed that they had seen the assailants and therefore, question of naming the appellants does not arise. Yugal Kishore Prajapati PW-4 is nephew of deceased and Maheshwar Prajapati PW-7, Mahendra Prajapati PW-8 and Jagbandhu Prajapati PW-9 are sons of the deceased, out of them PW-4, 8 and 9 have been tendered whereas PW-7 Maheshwar Prajapati has been examined and he has stated what was informed to him about the occurrence. We do not find that family members of the deceased or his sons have come up to project themselves as eye witnesses rather they have deposed, what was communicated to them. This also goes to support that the informant has not tried to implicate the appellants with any false allegation. Prosecution has not tried to increase number of eye witnesses. The enmity prevailing between families has been admitted and it is brought on record that father of the appellants was murdered in which the informant was an accused. The motive brought on record by the prosecution find support from the degree of enmity prevailing between the two families. 7. The learned counsel appearing for the appellants has argued that the unknown persons against whom allegation of hurling bomb is levelled, have neither been apprehended nor put on trial. In absence of those accused, these two appellants are not liable to be convicted with the aid of Section 34 of the Indian Penal Code for the offence of murder. The injuries alleged to have been inflicted by means of Farsa were not sufficient in ordinary course of nature to cause death. Furthermore, it was not inflicted on vital part of the body. For the single cut injury both the appellants could not be held liable. In that view of the matter, at least benefit of doubt should be given to the appellants or their conviction may be altered under Section 326 of the Indian Penal Code. 8. We have examined the record, considering aforesaid perspective of learned counsel for the appellants. It is a case in which four persons have committed offence of murder. Two unknown accused were not traced out whereas the appellants who are named in the First Information Report were put on trial. The charge was framed under Section 302/34 of the Indian Penal Code. It is a case in which four persons have committed offence of murder. Two unknown accused were not traced out whereas the appellants who are named in the First Information Report were put on trial. The charge was framed under Section 302/34 of the Indian Penal Code. The evidence on record is that these two appellants, armed with Farsa in their hand along with their two unknown associates who were having bag in their hand, had followed the deceased, bomb was hurled causing fatal injury to the deceased and the appellants were accompanying their unknown associates at the time of occurrence too. Not only that, both of them had participated in the assault by hurling blows by means of Farsa. One can gather intention of the accused from the action or overt act committed by him at the time of occurrence. In the case at hand, evidence is very clear that the appellants, with Farsa in their hand followed the deceased with their two unknown associates who were having bag containing bomb. They followed the deceased to some distance and after getting a suitable place bomb was hurled causing injury to deceased. These two appellants further participated in the assault. Therefore, the scenario which has been brought on record by the prosecution clearly speaks that there was pre-meeting of mind and with that premeditation of mind the appellants with their unknown associates had caused injury to the deceased by hurling bomb. The appellants participated in the incident and inflicted Farsa blows. The facts and evidence brought on record clearly bring the case within the purview of Section 34 of the Indian Penal Code and the appellants have rightly been held guilty under Section 302/34 of the Indian Penal Code and that needs no interference. 9. It is submitted that the appellants are lodged in jail since last 12 years and they are aged above 65 years. In a case of murder period of detention or the age of convict is no ground and that cannot be considered for deciding the case. 10. In view of the discussions made above and the evidence available on record, we do not find any merit in this appeal. The judgment of conviction and sentence dated 20.05.2004, passed by Addl. In a case of murder period of detention or the age of convict is no ground and that cannot be considered for deciding the case. 10. In view of the discussions made above and the evidence available on record, we do not find any merit in this appeal. The judgment of conviction and sentence dated 20.05.2004, passed by Addl. Judicial Commissioner, Fast Track Court-9, Ranchi in connection with Sessions Trial No.631 of 1992 corresponding to Ranchi, Silli P.S. Case No.36 of 1990, G.R. Case No.2363 of 1990 stands confirmed. 11. Accordingly, this appeal stands dismissed.