Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 373 (JHR)

Kapil Laheri v. State of Jharkhand

2016-02-22

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. Upadhyay, J. 1. These criminal appeals have been directed against the judgment of conviction and order of sentence dated 17th March, 2008 and 18th March, 2008, respectively, passed by learned 2nd Additional Sessions Judge, Godda in connection with Sessions Trial No.145 of 2003/11 of 2007, corresponding to G.R. No.432 of 2003, arising out of Pathargama P.S. Case No.59 of 2003, whereby the appellants have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The fact reveals from the Fardbeyan of Ful Kumari Devi, recorded on 26th April, 2003, at 20:00 hours, at the house of the informant, is that on 26th April, 2003 at 7:00 p.m. Banarsi Pandit (deceased) along with his daughter Rubi Kumari, aged two years, was taking rest on a cot in the courtyard of the house. The informant was engaged in domestic work, whereas mother of the deceased was sitting near her. In the meantime, all the appellants, who are named in the first information report, suddenly entered in the house and started causing assault to Banarsi Pandit (husband of the informant). When the informant tried to save her husband, she was pushed away. It is alleged that Kapil Laheri and Chhathu Laheri caught hold the hands and legs of Banarsi Pandit, whereas Manu Laheri took out a big knife and slit the neck of Banarsi. On Hullla, Ravindra Kumar and Jitendra Kumar, both sons of the deceased as well as the villagers reached to the place. On the basis of Fardbeyan of Ful Kumari Devi, Godda, Pathargama P.S. Case No.59 of 2003 dated 26th April, 2003 under Section 302/34 of the Indian Penal Code against all the appellants was registered. 3. The investigation was carried out and charge sheet was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No.145 of 2003. Charge under Section 302/34 of the Indian Penal Code was framed against the appellants to which they pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether ten witnesses and proved Fardbeyan, formal first information report, inquest report, postmortem report etc. Charge under Section 302/34 of the Indian Penal Code was framed against the appellants to which they pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether ten witnesses and proved Fardbeyan, formal first information report, inquest report, postmortem report etc. Learned Trial Judge, placing reliance on the documents and evidences available on record, held the appellants guilty for the offence alleged and inflicted sentence as indicated above. 4. The appellants have assailed the impugned judgment on the ground that the prosecution witnesses have not come up with fair hand. All the material witnesses are related to the deceased and they are highly interested witnesses. No independent witness has been examined. Mosstt. Sabo (P.W.1) happens to be mother of the deceased. She has admitted in her deposition that her eyesight is very weak. She could not able to identify the appellants from the witness box and she was permitted to go near the dock where the appellants were standing and then only she could able to identify them. In Paragraph 4 of her cross-examination, she has admitted that she could see only up to distance of one-two hand, approximately 3’-4’. Contradictions have also been taken out from the mouth of this witness, but that could not be referred to the Investigating Officer because the Investigating Officer has not been examined. According to prosecution witnesses blood oozing from the wound of deceased had fallen on cot as well as on ground in the courtyard. The witnesses have also stated that blood stain was available near the house of Kapildeo Bhagat. Therefore, place of occurrence has not been proved. At the time of occurrence, two years’ old daughter of the informant was with him, but she did not sustain any injury, that goes to falsify the manner of occurrence, explained by the witnesses. P.W.1 has admitted in Paragraph 11 that she had stated before the police that at the time of occurrence, she was sitting in front of the house of Sukarmani Devi (P.W.8). If it was so, she is not the eye-witness to the occurrence. The informant has not assigned motive behind murder, rather she has admitted in her deposition in Court that the appellants were in visiting term to her house. If it was so, she is not the eye-witness to the occurrence. The informant has not assigned motive behind murder, rather she has admitted in her deposition in Court that the appellants were in visiting term to her house. It is disclosed that earthen pots kept near the place were destroyed, but the manner of occurrence described by the informant does not speak that any scuffle between the appellants and the deceased had ever taken place. The informant has admitted, after the occurrence so many villagers had assembled, but none of them has come forward to support the prosecution case. Neither blood stain soil nor blood stain cloth nor blood stain cot was seized by the police. She has admitted the relation of the deceased with other witnesses. Ravindra Kumar Pandit (P.W.3) and Jitendra Kumar Pandit (P.W.4) are sons of the deceased and they have repeated the same story as narrated by the informant. As a matter of fact, Jitendra Kumar Pandit (P.W.4) was not in the house at the time of occurrence, rather he had gone to market and that statement was given by him before the police. According to his statement recorded by the police, when he returned from market, he had seen his father near the clinic of Dr. Kapildeo and his whole body was smeared with blood. Again due to non-examination of the Investigating Officer, the contradictions taken from the mouth of the aforesaid witnesses could not be referred. Chandrakant Pandit (P.W.5) happens to be hearsay witness and he has signed the inquest report. He has proved his signature appearing on the inquest report (Ext.1). He is also one of the relatives of the deceased. Tuntun Pandit (P.W.6) is another hearsay witness. Sukarmani Devi (P.W.8) and Jamadar Pandit (P.W.9) have also supported the prosecution case, but they are not eyewitnesses. 5. Learned A.P.P. appearing on behalf of the State has opposed the argument and submitted that non-examination of the Investigating Officer has not caused prejudice to the appellant. As a matter of fact, during trial the Investigating Officer, Jag Narayan Sharma was not alive, which is apparent from the evidence of Kalim Ansari (P.W.10) and, therefore, he could not be examined. The Fardbeyan, formal first information report and inquest report have been proved by P.W.10. Altogether there are five eye-witnesses and they have fully supported the prosecution case. As a matter of fact, during trial the Investigating Officer, Jag Narayan Sharma was not alive, which is apparent from the evidence of Kalim Ansari (P.W.10) and, therefore, he could not be examined. The Fardbeyan, formal first information report and inquest report have been proved by P.W.10. Altogether there are five eye-witnesses and they have fully supported the prosecution case. Even assuming it to be correct that P.W.1 was not capable of identifying the appellants at the time of occurrence, the identity of appellants has well been established from the evidences of P.W.2 (informant), P.Ws.3 and 4 (sons of the informant), P.W.8 and P.W.9. All the witnesses have categorically stated that Banarsi Pandit was taking rest with his two years’ old daughter on a cot in the courtyard of the house. Other witnesses were present in the house. In the meantime, the appellants committed house trespass, overpowered Banarsi Pandit and slit his neck. After sustaining injury, Banarsi was taken to Dr. Kapil, who is resident of the same village and his house is situated after two-three houses. The eye-witnesses have clearly stated that blood had fallen on the cot as also on the ground in the house. Since Banarsi was taken to the house of Dr. Kapil under a hope that he may survive, but till then he was not alive and, therefore, blood had fallen at the doorstep of Dr. Kapil. There is no contradiction in the manner of occurrence and the appellants have rightly been held guilty. 6. We have gone through the evidences and documents available on record and also perused the impugned judgment. Mosstt. Sabo, who happens to be mother of the deceased, is a lady and she has clearly stated that her eyesight is weak and she could not see beyond the distance of 4’-5’. The occurrence took place at about 8:00 p.m. and source of light available in the courtyard was lantern. Under such circumstances, we have no reason to reject the argument of learned counsel for the appellants that P.W.1 was not capable of identifying the appellants, but the occurrence in which her son-Banarsi Pandit was killed to which she has described, could not be disbelieved. We have further examined the evidence of P.W.2 (informant), P.Ws.3, 4 & 8. These witnesses have fully supported the prosecution case and consistently stated that the deceased was taking rest on a cot in his house. We have further examined the evidence of P.W.2 (informant), P.Ws.3, 4 & 8. These witnesses have fully supported the prosecution case and consistently stated that the deceased was taking rest on a cot in his house. In the meantime, the appellants entered in the courtyard of the house, overpowered the deceased and one of the appellants, namely, Manu Laheri slit the neck of the deceased by means of a big knife. Under the hope that Banarsi Pandit may survive he was taken to nearby house of Dr. Kapil, but, in fact, till then he was not alive. The witnesses have stated that blood oozing from the wound of the deceased had fallen on the cot, on the ground, near the cot and also near doorsteps of Dr. Kapil. Since the Investigating Officer has not been examined, it is not possible to hold whether blood stain soil was seized from the place of occurrence or not. Only because the blood fallen on the ground was not seized, the place of occurrence could not be disbelieved. 7. In a case where eye-witnesses are available and consistent evidence regarding occurrence has been stated by them, non-examination of the Investigating Officer is not fatal to the prosecution. Likewise, if motive has not been assigned, the entire prosecution case, if otherwise believable, could not be thrown away. Since motive behind the offence was not known to the witnesses, they have not disclosed it and that does not mean the occurrence is false. The motive behind the offence is only required to be substantiated, if it is brought on record. We have examined the evidence of Dr. Sunil Kumar Jha (P.W.7) and gone through the postmortem report (Ext.2) and we find that injury explained by all the eyewitnesses stood corroborated from the evidence of Dr. Sunil Kumar Jha (P.W.7) and postmortem report (Ext.2). The place of occurrence is the courtyard of the house of the deceased, situated in a village, and the time of occurrence is 8:00 p.m. Normally the presence of family members is always expected in the village house after sunset. Therefore, the family members, who were present at the time of occurrence in the house, are the best witnesses and their testimony could not be discarded only because they are close relatives of the deceased. Therefore, the family members, who were present at the time of occurrence in the house, are the best witnesses and their testimony could not be discarded only because they are close relatives of the deceased. We do not find that learned Trial Judge has committed error in holding the appellants guilty on the basis of evidences available on record. 8. In the result, we do not feel inclined to interfere with the findings of the Trial Court. Accordingly, the judgment of conviction and order of sentence recorded against the appellants under Section 302/34 of the Indian Penal Code in connection with Sessions Trial No.145 of 2003/11 of 2007, corresponding to G.R. No.432 of 2003, arising out of Pathargama P.S. Case No.59 of 2003, is hereby upheld. 9. Accordingly, these appeals stand dismissed. Appeals dismissed.