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2016 DIGILAW 299 (JHR)

Mata Sinku v. State of Jharkhand

2016-02-09

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 15.10.2004 & 19.10.2004 respectively passed by the Sessions Judge, West Singhbhum at Chaibasa in connection with S.T. No. 181/2003, corresponding to G.R. No. 89/2003, arising out of Tonto P.S. Case No. 09/2003 whereby the appellant has been held guilty for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code and R.I. for three years under Section 27 of the Arms Act. Both the sentences so passed were directed to run concurrently. 2. The prosecution case as it appears from the fardbayan of Muchiya Sinku recorded on 06.03.2003 at 6:30 hours at village Mriglandi within P.S. Tonto in brief is that on 04.03.2003 at about 10 p.m. while Shuru Kui (wife of the informant) was returning home, she was shot at by appellant Mata Sinku. The informant reached to the place after hearing alarm raised by his wife Shuru Kui. He had seen Shuru Kui having firearm injury on her abdomen. Shuru Kui told that she has been shot at by Mata Sinku, who was accompanied by Shobhan Sinku. Thereafter Shuru Kui in injured condition was brought home but on the following after noon she died. On the basis of fardbayan of Muchiya Sinku, West Singhbhum (Sadar) Tonto P.S. Case No.09/2003 dated 06.03.2003, under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act was registered against named accused Mata Sinku (appellant) and Shobhan Sinku. The police after due investigation, submitted charge-sheet against both the accused and accordingly cognizance was taken and after framing of charge they were put on trial. 3. To substantiate the charges the prosecution has examined altogether six witnesses. The learned Sessions Judge placing reliance on the evidence and documents available on record held the appellant-Mata Sinku guilty for the offence punishable under Section 302 of the Indian Penal Code and 27 of the Arms Act whereas co-accused Shobhan Sinku stood acquitted from the charges framed against him. 4. Learned Counsel appearing for the appellant has submitted that judgment of conviction has been recorded on the solitary testimony of P.W.4 (Muchiya Sinku), who is none else but husband of the deceased. 4. Learned Counsel appearing for the appellant has submitted that judgment of conviction has been recorded on the solitary testimony of P.W.4 (Muchiya Sinku), who is none else but husband of the deceased. He is not an eyewitness to the occurrence but he has brought a fact on record that the deceased before her death disclosed name of the appellant, who caused firearm injury to her. Oral dying declaration made by the deceased before the informant Muchiya Sinku has been accepted by the Trial Judge for recording conviction against the appellant. It is submitted that all other witnesses are of formal in nature. They have either proved their signature appearing on the inquest report or seizure list. Dr. Bal Krishna Sahani (P.W.3) has proved the postmortem report. It is contended that the Doctor has not given definite opinion whether the deceased after having that firearm injury was capable of speaking or not. From the answer given by P.W. 3 it appears that the deceased might or might not have been able to give statement after having that kind of injury. In view of the evidence of Doctor, statement of informant cannot be accepted as gospel truth. Land dispute prevailing between the informant and the appellant has been admitted. No independent witness has come forward to support the prosecution case. The informant has said in his cross-examination that Shuru Kui was alive and she was conscious till following morning upto 8 O'clock. In the morning the villagers had visited the house of the informant but no witness has come forward to say that the deceased had disclosed name of the appellant before them. Solitary testimony of Muchiya Sinku, on the basis of which conviction has been recorded is not free from doubt and his testimony is not wholly reliable. 5. Learned A.P.P. has opposed the argument and submitted that the deceased was alive till following morning and she was conscious even after having injury which is apparent from the evidence of P.W. 4. It is apparent that no independent witness had reached to the place of occurrence after the incident occurred. Place of occurrence is village Mriglandi which is about 25 k.m. away from the Police Station and 3 k.m. away from the nearest railway station “Kendposi”. Time of occurrence is 10 p.m. and, therefore, availability of independent witness on that point of time was remote. Place of occurrence is village Mriglandi which is about 25 k.m. away from the Police Station and 3 k.m. away from the nearest railway station “Kendposi”. Time of occurrence is 10 p.m. and, therefore, availability of independent witness on that point of time was remote. The evidence of informant also appears quite natural when he says that he was sleeping in the house but he woke up after hearing sound of firing and rushed towards the place of occurrence after hearing alarm raised by Shuru Kui. He found his wife having firearm injury but she was conscious and disclosed name of the appellant. No material contradiction has been brought on record to disbelieve or discard testimony of P.W. 4. The prosecution evidence is fully intact and the learned Sessions Judge has rightly held the appellant guilty which needs no interference. 6. We do agree with the submission of learned A.P.P. and the learned Counsel appearing for the appellant that entire prosecution case hinges on sole testimony of Muchiya Sinku (P.W.4). Considering odd hours, the place of occurrence we do agree that availability of independent witness was remote. We have carefully examined the evidence adduced by the prosecution but we do not find that the defence counsel has brought on record presence of any other witness at the place of occurrence at the relevant point of time. Thus the fact remain that the informant was only person who reached to his injured wife and brought her home. He is the only witness in whose presence the deceased before her death, had disclosed the name of the appellant and co-accused Shobhan. It is true that land dispute between the informant and the accused was prevailing but enmity cuts both way and it is double edged weapon. The evidence on record indicates that prior to the occurrence some altercation had taken place between the appellant and the deceased. The daily routine of the deceased has also been introduced by the witness and according to that she used to go to sell 'Sal' leaves to other places by doing journey by train and she used to come late in the evening as per the train schedule. When the appellant got suitable opportunity he has committed the offence and the crime committed by him was disclosed by the deceased to her husband. When the appellant got suitable opportunity he has committed the offence and the crime committed by him was disclosed by the deceased to her husband. The other witnesses P.W.1, P.W. 2 & P.W. 5 are formal witnesses but they have stated in their deposition; when they reached to the house of informant on the following morning, they could learn about the name of assailant and they had seen the deceased having injury on her person. P.W. 5 (Turam Hembrom) has proved the signature appearing on the fardbayan and he is attesting witness. P.W. 6 (Hardan Baitha) is the Investigating Officer and he has proved fardbayan (Ext.5), formal F.I.R. (Ext.6), Inquest report (Ext.7) and Seizure list (Ext.8). We do not find any material available on record to discard the testimony of P.W. 4. We do not find any material on record to disbelieve the oral dying declaration given by the deceased to her husband. Learned Sessions Judge has rightly held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and 27 of the Arms Act. 7. We are not inclined to interfere with the findings given by the learned Sessions Judge in connection with S.T. No. 181 of 2003 and the impugned judgment is hereby upheld. 8. There being no merit, appeal stands dismissed.