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2016 DIGILAW 326 (JHR)

Ram Kuwar Sahu v. State of Jharkhand

2016-02-11

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : These criminal appeals have been directed against the judgment of conviction and order of sentence dated 14th June, 2007 and 18th June, 2007, respectively, passed by learned 1st Additional Sessions Judge, Gumla in connection with Sessions Trial No. 294 of 2004, corresponding to G.R. No. 428 of 2004, arising out of Gumla, Sisai P.S. Case No. 72 of 2004, whereby the appellants have been held guilty for the offences punishable under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5.000/-, each, and in default of making payment of fine, further simple imprisonment of six months. 2. The prosecution case, as it appears from the fardbeyan of Birsa Kharia-P.W.9, recorded on 10th July, 2004, at 06:15 a.m., in brief, is that a contract for construction of a Kacha Road from Birkera to Ghaghra was sanctioned under Jawahar Rojgar Yojana. The informant was elected as President, whereas one of the deceased-Maru Mahto was elected as Secretary of Gram Sabha and construction work of said road was to be done under the supervision of Gram Sabha. The estimate for construction of said road was Rs. 2.98 lacs. Major part of the road was constructed, but the work was stopped by the appellants because they were not allowing the road to continue from their land. The matter was stopped by the appellants because they were not allowing the road to continue from their land. The matter was brought to the notice of block office, but no solution was found out. Since construction of road was to be completed, the informant and members of Gram Sabha, including deceased-Maru Mahto, had decided to complete the road during night. It is disclosed that the informant and the deceased-Maru Mahto with some labourers had gone to the place of occurrence on 9th July, 2004 at about 8:30 p.m. to complete the construction of road. No sooner the work was started, the appellants with their associates, armed with Balua, spear and Tangi, reached to the place and appellant-Ram Kuwar Sahu inflicted a blow by means of Balua on the abdomen of Maru Mahto. Thereafter, the companion accused also joined and caused assault to Maru Mahto. They were uttering that they would not spare anyone who would dare to construct the road on their land. Thereafter, the companion accused also joined and caused assault to Maru Mahto. They were uttering that they would not spare anyone who would dare to construct the road on their land. Thereafter, the appellants with their associates caused assault to one of the appellants with their associates caused assault to one of the labourers, namely, Manga Kharia and killed him. On the following morning, at 6:15 hours Fardbeyan of Birsa Kharia was recorded and a case, being Gumla, Sisai P.S. Case No. 72 of 2004, corresponding to G.R. No. 428 of 2004, under Section 302/34 of the Indian Penal Code was registered. 3. The police after due investigation submitted charge-sheet against the appellants. Accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Trial No. 294 of 2004. Charge was framed under Section 302/34 of the Indian Penal Code against the appellants to which they pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether eleven witnesses. Learned 1st Additional Sessions Judge, placing reliance on the evidence and documents, available on record, held the appellants guilty under Section 302/34 of the Indian Penal Code and inflicted sentence, as indicated above. 4. The appellants have assailed the impugned judgment on the ground that P.W.2-Lakshmi Nath Oraon, P.W.3-Tetru Mahli, P.W.5-Sukra Lohra and P.W.7-Surendra Sahu have not supported the prosecution case and they have turned hostile. P.W.9-Birsa Kharia happens to be the informant. Though he has not been declared hostile, but he has not supported the prosecution case as made out by him in his Fardbeyan. He has simply admitted his signature appearing on the Fardbeyan, but did not admit the contention made therein. According to Fardbeyan, he was an eye-witness to the occurrence, but according to his deposition in Court he says that on 10th July, 2004, in the morning, he could learn that Maru Mahto and Manga Kharia have been done to death. The prosecution cleverly did not declare him hostile. Karmu Mahto-P.W.1 is witness to the inquest report and seizure list. Bhikham Sahu-P.W.8 is hearsay witness, whereas Uday Kumar Singh-P.W. 10 is a formal witness and he has proved the signature of R.P. Gupta appearing in formal first information report, inquest report and seizure list. Dr. Manvendra Kumar Singh-P.W. 11 has conducted post-mortem examination on the dead body of Maru Mahto and Manga Kharia. Bhikham Sahu-P.W.8 is hearsay witness, whereas Uday Kumar Singh-P.W. 10 is a formal witness and he has proved the signature of R.P. Gupta appearing in formal first information report, inquest report and seizure list. Dr. Manvendra Kumar Singh-P.W. 11 has conducted post-mortem examination on the dead body of Maru Mahto and Manga Kharia. The prosecution case mainly hinges on the evidence of P.W.4-Ghura Oraon and P.W.6 Nawal Gope. According to the evidence of P.W.4, he has identified one accused-Nanhu Sahu. He did not name the appellants-Ram Kuwar Sahu and Chandar Sahu. In his cross-examination, he has not supported the prosecution case wholeheartedly and he has said, after the assault commenced, he left the place. On the following morning he could learn about death of two persons, namely, Maru Mahto and Manga Kharia. He has not stated that Nanhu Sahu caused assault to any of the deceased. 5. It is submitted that Nawal Gope-P.W.6 is not a reliable witness. He has projected himself as an eye-witness, but his statement was recorded after three days and that is admitted by him in his deposition. He is the only witness who has described the occurrence and disclosed the overt act committed by the appellants. Learned counsel has submitted that P.W.6 in Paragraph-8 of his deposition has said that "JAHAN KAAM HO RAHA THA OH JAMIN DAYAL BARAIK AUR DOMAN B ARAIK KI THI". if contention of this witness is correct, the place of occurrence as disclosed by the informant is not the same. According to prosecution case, construction of road was decided to be done during night to complete it. It is disclosed that the occurrence took place when the informant and deceased-Maru Mahto had started work on the land of the appellants. The Investigating Officer has not been examined. Therefore, the prosecution has failed to prove the place of occurrence. The testimony of P.W.6 is not wholly reliable and credible and conviction could not be recorded on the solitary testimony of such witness. 6. Learned counsel has further argued that there was delay in sending the first information report to the Court. The first information report was registered on 10th July, 2004, but it was received by learned Chief Judicial Magistrate on 12th July, 2004. Why this delay occurred in sending the first information report to the court of learned Chief Judicial Magistrate has not been explained. The first information report was registered on 10th July, 2004, but it was received by learned Chief Judicial Magistrate on 12th July, 2004. Why this delay occurred in sending the first information report to the court of learned Chief Judicial Magistrate has not been explained. Again non-examination of Investigating Officer becomes fatal. Had he been examined, cross-examination would have been done to find out the truth. Bloodstained soil and some weapons had been seized, but what happened to those articles, remained unknown and that again due to non-examination of the Investigating Officer. The Judicial Magistrate, who has recorded the statements of Nawal Gope-P.W.6, Surendra Sahu-P.W.7, Karmu Mahto-P.W.1 and Birsa Kharia-P.W.9 under Section 164, Cr.P.C., has not been examined. Due to non-examination of Judicial Magistrate, who had recorded the statements of witnesses under Section 164, Cr.P.C., the appellants could not get opportunity to refer aforesaid statements to them during their examination in Court. 7. Learned counsel by referring the points, highlighted above, has submitted that the prosecution has failed to perform its obligation and they have not proved the prosecution case beyond shadow of all reasonable doubts and, therefore, the conviction and sentence recorded by learned Additional Sessions Judge against the appellants is liable to be set aside. 8. Learned A.P.P. has opposed the argument and submitted that conviction can be recorded on the solitary testimony of eyewitness, if the statement is wholly reliable and unimpeachable. Presence of Nawal Gope-P.W.6, at the place of occurrence, at the relevant point of time, could not be doubted because he was engaged as labourer in construction work of that Kacha Road. Threatenings were hurled by the appellants to teach lesson if the informant or his companions would dare to continue the road on their land. The matter was also brought to the notice of block office, but no fruitful solution was found out. Thereafter, the informant and the deceased-Maru Mahto had decided to get the work done during night and for that they had assembled at the place of occurrence with labourers. No sooner the work was started, the appellants with their associates appeared at the scene of occurrence and immediately they caused injury to Maru Mahto by means of Balua, spear and Tangi. One of the labourer's, namely, Manga Kharia was then targeted and he was also caused injury. No sooner the work was started, the appellants with their associates appeared at the scene of occurrence and immediately they caused injury to Maru Mahto by means of Balua, spear and Tangi. One of the labourer's, namely, Manga Kharia was then targeted and he was also caused injury. Other labourers including the informant, in order to save their life took to their heels. The evidence of Nawal Gope-P.W.6 is fully intact on the point of assault. He has described the weapon used by the appellant. He was also examined by the Court under Section 164, Cr.P.C. to which he had admitted and proved his signature on the statement recorded under Section 164, Cr.P.C. (Ext. 4). Learned A.P.P. has submitted that in such situation some of the witnesses support the case and some of the witnesses, due to fear do not support and that is what happened in the case at hand. Non-examination of the Investigating Officer does not appear to have caused prejudice to the appellants in any manner. No contradiction from the mouth of any of the witnesses has been taken. So far proving of place of occurrence is concerned, there are eye-witnesses, who have pinpointed the place of occurrence in their depositions. The story is very clear, construction of road was likely to be completed, but it was stopped just near the land of the appellants but the informant and his companions were trying to complete. No specific question on the point of place of occurrence has been put to any witness by the defence counsel. The appellants have further failed to bring it on record by adducing any evidence or by eliciting anything from the mouth of any material witness or by placing reliance on any document on record that the first information report was antedated or ante-timed and, therefore, only because the first information report was received in Court after delay of two days, that will not be sufficient to brush aside the entire prosecution case. The prosecution has well proved its case and there is no merit in these appeals. 9. Heard rival submissions, perused the case record, examined the evidence and documents available and gone through the impugned judgment. The prosecution has well proved its case and there is no merit in these appeals. 9. Heard rival submissions, perused the case record, examined the evidence and documents available and gone through the impugned judgment. Learned counsel for the appellants has vehemently argued on two points; the first point is that the first information report was received in Court on 12th July, 2004, whereas the case was registered on 10th July, 2004. The delay of two days in sending the first information report has not been explained. As per Section 157(1), Cr.P.C. the Officer-in-charge was under obligation to send the information forthwith to a Magistrate who is empowered to take cognizance. The second point raised by the learned counsel is non-examination of the Investigating Officer and non-examination of Judicial Magistrate, who had recorded the statement of witnesses under Section 164, Cr.P.C. 10. To answer the first point, we have carefully examined the evidence and documents available. According to prosecution evidence, the occurrence took place at about 9:00 p.m. on 9th July, 2004; the Fardbeyan was recorded at 6:15 a.m. on 10th July, 2014 and on the basis of Fardbeyan, Gumla, Sisai P.S. Case No. 72 of 2004 dated 10th July, 2004 was registered at 12:15 hours. After recording of Fardbeyan, the investigation was initiated at the spot and inquest reports were prepared. The Investigating Officer has further seized one Balua stained with blood and a bamboo handle broken at the end, one Chadar and bloodstained soil and, accordingly, seizure lists were prepared on 10th July, 2004 at 6:30 a.m. at the spot in presence of Nawal Gope-P.W.6 and Karmu Mahto-P.W.1. Both witnesses have proved their signatures appearing on the seizure list. On the same day i.e. on 10 July, 2004, at 9:15 hours, a portion of broken bamboo, about 3 ft. in length, one axe stained with blood and one Dav (a sharp cutting weapon) stained with blood were recovered from the house of appellant-Nanhu Sahu and that seizure was also witnessed and signed by P.W.1-Karmu Mahto and P.W.6-Nawal Gope and they have proved their signatures appearing on the seizure list. The aforesaid seizure lists have been marked as Exts. 10 and 10/1. Therefore, we find that just after recording of the Fardbeyan the investigation was carried out and we do not find any manipulation or overwriting either in the seizure lists or inquest reports. 11. The aforesaid seizure lists have been marked as Exts. 10 and 10/1. Therefore, we find that just after recording of the Fardbeyan the investigation was carried out and we do not find any manipulation or overwriting either in the seizure lists or inquest reports. 11. Section 157(1), Cr.P.C. says that if any information regarding commission of a cognisable offence is reported to the police, the Officer-in-charge shall transmit the same forthwith to the nearest Magistrate who is empowered to take cognizance and shall proceed for investigation. Since the investigation commenced at the sport after recording of Fardbeyan, the formal first information report was drawn on 10th July, 2004 after investigation of that date was completed and just after one day i.e. on 12th July, 2004, the first information report was received by the Court of learned Chief Judicial Magistrate. We do not find any irregularity or illegality or any manipulation in any of the documents referred to and, therefore, only because the first information report was received in Court after delay of one day, that will not be sufficient to throw away the entire prosecution case. 12. The next point which the learned counsel has argued is non-examination of the Investigating Officer and non-examination of the Judicial Magistrate, who had recorded the statements of witnesses under Section 164, Cr.P.C. We have gone through the evidence of prosecution witnesses and we do not find that contradictions from the mouth of any of the witnesses have been taken. It appears that the witnesses who have supported the prosecution case had stuck to their statements recorded under Section 161, Cr.P.C. We do not find any exaggeration in their statements. So far proving the place of occurrence is concerned, if statements of eye-witnesses are admitted to be true, it will not make any difference if the Investigating Officer is not examined. According to the prosecution case, Construction of road was stopped near the land of the appellants because they had been raising objection. In order to complete the construction of road, the informant and his companions had decided to do the work during night and they assembled at the place at 8:30 p.m. No sooner the work was started, the appellants, armed with deadly weapon, along with their associates appeared at the place of occurrence and started assaulting the deceased. In order to complete the construction of road, the informant and his companions had decided to do the work during night and they assembled at the place at 8:30 p.m. No sooner the work was started, the appellants, armed with deadly weapon, along with their associates appeared at the place of occurrence and started assaulting the deceased. It is not disclosed in the Fardbeyan that the occurrence took place on the land of the appellants, rather the evidence on records speaks that as soon as they started digging earth the occurrence took place. The informant has been examined as P.W.9 and he has admitted in his deposition that "DESWALI KE PAS SARAK NIRMAN ME MARKAT HUA HAI". In Paragraph-2 of his deposition, he admits that his Fardbeyan was recorded by the police and he has proved his signature appearing on the Fardbeyan (Ext. 6). He has further admitted that Fardbeyan was attested by Karmu Mahto-P.W. 1 and signature of Karmu Mahto appearing in the Fardbeyan has been proved as Ext. 6/1. This witness has also claimed to identify the appellants in Court. He has tried to keep himself away from becoming an eye-witness and he has said that in the morning, he could learn about the occurrence and then he went to the place of occurrence and had given Farbeyan before the police. Birsa Kharia-P.W.9 has admitted in Paragraph-6 of his cross-examination that he was informed about the occurrence by Nawal Gope-P.W.6 and Nawal Gope (P.W.6) has supported the fact that occurrence took place near Deswali, which is about one and half kilometer away from Birkera. The boundary of place of occurrence has been described by P.W.6 in Paragraph-14 and reference of Deswali is also appearing in that paragraph. Again we would like to observe that if the statement of eye-witness is believed and the testimony is considered credible, then minor contradictions are to be ignored. This statement has been given by a labourer and we could not expect that he would pinpoint the occurrence like an engineer or an expert. In view of the evidence and discussion, referred to above, we do not find that place of occurrence has not been proved by the prosecution and non-examination of the Investigating Officer in this regard is not fatal. 13. In view of the evidence and discussion, referred to above, we do not find that place of occurrence has not been proved by the prosecution and non-examination of the Investigating Officer in this regard is not fatal. 13. Learned counsel has submitted that the Judicial Magistrate, who had recorded the statements of witnesses under Section 164, Cr.P.C., has not been examined. Therefore, contradiction and inconsistency appearing in the statements of those witnesses could not be referred to them. We do not accept this argument tenable. The witnesses have admitted in their deposition that they had given statements before the Magistrate and they had proved their signatures appearing on those statements. Learned defence counsel has not referred that statements to those witnesses during their examination in Court. Therefore, we do not find that non-examination of the judicial Magistrate has caused any prejudice to the appellants in any manner. 14. Now coming to the evidence on record, Karmu Mahto-P.W. 1 is hearsay witness and he has supported the fact that he had seen the dead bodies of Manga Kharia and Maru Mahto and they were killed on 9th July, 2004 between 8:30 p.m. to 9:00 p.m. He has proved his signature appearing on the inquest report and seizure list. Laxmi Nath Oraon-P.W.2 has turned hostile, he did not name the appellants as assailants, but he supports that occurrence had taken place in which two persons, namely, Maru Mahato and Manga Kharaia have been done to death. Tetru Mahli-P.W.3 was a labourer and he was engaged in construction of the road. This witness has also stated that he had sustained injury on his neck in course of assault, but he could not identify the assailant. Later he could learn that two persons, namely, Maru Mahto and Manga Kharia have been done to death at the spot. He had turned hostile only on the point of identifying the appellants. Ghura Oraon-P.W.4 was also a labourer and he was engaged in construction of road. He has stated that on 9th July, 2014, in the evening while the construction work of road was going on, the miscreants/assailants reached to the place and started assaulting the labourers. They killed Maru Mahto and Manga Kharia at the spot. He had claimed to identify only one appellant-Nanhu Sahu. He has stated that on 9th July, 2014, in the evening while the construction work of road was going on, the miscreants/assailants reached to the place and started assaulting the labourers. They killed Maru Mahto and Manga Kharia at the spot. He had claimed to identify only one appellant-Nanhu Sahu. Off course, in his cross-examination, in Paragraph-4, he has stated that he did not witness the entire occurrence because he left the place due to fear. He had seen appellant-Nanhu Sahu at the place of occurrence. Sukra Lohra-P.W.5 has also repeated the same fact as disclosed by P.W.3-Tetru Mahli. Nawal Gope-P.W.6 is the only eye-witness, who has supported the prosecution case. Learned counsel has challenged the testimony of this witness on the ground that his statement was recorded three days after the occurrence. It is pointed out that he met with police near Murgu More (Paragraph-11) and he had been to the place of occurrence when inquest report was prepared, but his statement was not recorded. On the next day, he did not go to the police station, rather Karmu Mahto, Birsa Kharia and Surendra Sahu had gone to the police station. In Paragraph-12, he says that he had gone to police station on third day along with Birsa, Karmu, Kongra Kharia and Surendra Sahu and from police station they had gone to the Court to give their statements, which were recorded by the Magistrate. The police personnel were standing outside the Court near window. 15. Now we have to consider, whether the evidence of P.W.6-Nawal Gope can be relied upon to uphold the conviction of the appellants for the offence punishable under Section 302, IPC; whether he had seen the occurrence and he was present with the deceased at the spot at the relevant point of time? We have carefully scrutinized the evidence of this eye-witness (P.W.6) and also perused the documents available on record. We find that bloodstained cloth, bloodstained soil and bloodstained weapon have been recovered in presence of this witness and he had signed the seizure lists, which have been marked as Exts. 10 and 10/1. The informant-P.W.9 in Paragraph-6 of his deposition admits that it was Nawal Gope-P.W.6, who informed him about the occurrence. Other witnesses have stated that he was engaged in construction work of road and prior to the present one he had worked earlier too. 10 and 10/1. The informant-P.W.9 in Paragraph-6 of his deposition admits that it was Nawal Gope-P.W.6, who informed him about the occurrence. Other witnesses have stated that he was engaged in construction work of road and prior to the present one he had worked earlier too. It is argued that he is cousin of the deceased Maru Mahto and, therefore, he is interested witness. From the deposition of this witness, we do not find that he has tried to exaggerate the occurrence or tried to implicate either the appellants or any one else falsely. He has given details of the occurrence in his deposition. He has clearly described the boundary of place of occurrence in Paragraph-4 of his deposition. It is true that due to non-examination of the Investigating Officer, it could not be brought on record as to when statement of this witness was recorded under Section 161, Cr.P.C., but then the fact remains that his statement under Section 164, Cr.P.C. was recorded on 14th July, 2004 i.e. within two days from the date on which the first information report was received in Court. Not only that the manner of assault described by this witness finds full corroboration from the evidence of P.W. 11-Dr. Manvendra Kumar Singh. Besides numbers of incised wounds, sharp and penetrating wound just right to the umblicus causing damage to intestinal coils were found; two sharp and penetrating wounds just below Injury No. VIII i.e. below umblicus were noticed; sharp and penetrating wound on left lumper region were also found. Thus, the statement of this witness that Ram Kuwar Sahu caused injury to Maru Mahto in his abdomen by means of Balua and spear finds support from the post-mortem report and evidence of P.W.11. We have no hesitation to hold that testimony of P.W.6-Nawal Gope is wholly reliable and the same finds full corroboration from the post-mortem report and evidence of Dr. Manvendra Kumar Singh-P.W. 11. 16. We further find that report received from Forensic Science Laboratory has been marked Ext. 11. The blood-stained soil and blood-stained weapon were seized from the place of occurrence and some weapons were seized from the house of appellant-Nanhu Sahu and those articles were sent to Forensic Science Laboratory for its examination. The report of Forensic Science Laboratory (Ext. 16. We further find that report received from Forensic Science Laboratory has been marked Ext. 11. The blood-stained soil and blood-stained weapon were seized from the place of occurrence and some weapons were seized from the house of appellant-Nanhu Sahu and those articles were sent to Forensic Science Laboratory for its examination. The report of Forensic Science Laboratory (Ext. 11) indicates that human blood was found on those articles and that human blood was of two groups and that goes to support that those weapons were used for causing injury to maru Mahto and Manga Kharia. Therefore, the prosecution story and the evidence of witnesses find support from the report of Forensic Science Laboratory. 17. Considering all these aspects of the matter and the discussions made above, We do not find merit in these appeals and the same stand dismissed. The conviction and sentence recorded against the appellants in connection with Sessions Trial No. 294 of 2004, corresponding to G.R. No. 428 of 2004, arising out of Gumla, Sisai P.S. Case No. 72 of 2004 is hereby upheld. The bail bond of appellant-Ram Kuwar Sahu, who is on bail, is hereby cancelled and he is directed to surrender before the convicting/successor court within six weeks from today, failing compliance bail amount shall stand forfeited and the convicting/successor Court shall issue process to secure his attendance. Appeal dismissed.