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2016 DIGILAW 396 (JHR)

Godo Manjhi (dead) v. State of Jharkhand

2016-03-01

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : These criminal appeals have been directed against the judgment of conviction and order of sentence dated 18.02.2003 passed by the 3rd Addl. Sessions Judge, Dumka in connection with Sessions Trial No.26 of 2001/591 of 2002 corresponding to G.R. Case No. 801 of 2000 arising out of Dumka, Saraiya Hat P.S. Case No.112 of 2000 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. Appellant Godo Manjhi (in Cr. Appeal (DB) No.448 of 2003) died on 08.04.2013 and therefore, the appeal as against him stands abated. 3. The prosecution case, as it appears from the fardbeyan of Dinesh Manjhi recorded on 21.08.2000 at 15.30 hours at the door of the house of complainant, is that on the date of occurrence at about 10.00 a.m. hurling of abuses had taken places between Sushila Devi and the family members of appellants. The matter was brought to the notice of both the family by the respective women of their families. It is disclosed that Duryodhan Manjhi (deceased) with an intention to patch up the dispute came out of his house but he was overpowered by Binod Manjhi and his companion who caused assault to him by means of tangi, farsa, sword, gupti etc. The female members of appellants also joined hands and caused assault to Duryodhan. Due to fear the informant did not intervene to save his father. Lastly, Duryodhan (father of the informant) was done to death at the spot. The matter was brought to the notice of police and fardbeyan of Dinesh Manjhi was recorded at 15.30 hours on the date of occurrence itself. 4. On the basis of fardbeyan of Dinesh Manjhi, Dumka, Saraiya Hat P.S. Case No.112 of 2000 dated 21.08.2000 under Section 302/34 of the Indian Penal Code against the appellants and five others who are also named in the First Information Report was registered. Out of ten named accused, charge sheet against appellants and Tara Devi was submitted. Accordingly, cognizance was taken and case of appellants including accused Tara Devi was committed to the court of sessions and registered as Sessions Trial No.26 of 2001/591 of 2002. 5. Charge under Section 302/34 of the Indian Penal Code against appellants and accused Tara Devi was framed to which they pleaded not guilty and claimed to be tried. Accordingly, cognizance was taken and case of appellants including accused Tara Devi was committed to the court of sessions and registered as Sessions Trial No.26 of 2001/591 of 2002. 5. Charge under Section 302/34 of the Indian Penal Code against appellants and accused Tara Devi was framed to which they pleaded not guilty and claimed to be tried. To substantiate the charge, prosecution has examined altogether nine witnesses including the investigating officer, doctor, informant and other eye witnesses and proved documents like fardbeyan, post mortem report, inquest report etc. Learned Addl. Sessions Judge, placing reliance on the evidence and documents available, held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code but acquitted accused Tara Devi from the charge framed against her. Out of aforesaid five appellants, appellant Godo Manjhi in no more in this world and he died on 08.04.2013 as a result the appeal as against appellant Godo Manjhi stood abated. 6. Learned counsel appearing for the appellants has challenged the findings of the trial court on the ground that statement of PW1, PW2, PW3 and PW4 are not consistent on the point of manner of occurrence. The witnesses have stated that all the accused except accused Tara Devi were armed with tangi, sword, farsa and all those weapons are known as heavy sharp cutting weapon. According to doctor PW5, injury no.6 was sufficient to cause death in ordinary course of nature and that injury was a laceration caused by hard and blunt substance. No prosecution witness has stated that any hard and blunt substance was used for causing head injury to the deceased. Furthermore, the witnesses have stated that Tara Devi inflicted blow by means of gupti on the mouth of deceased and that caused cut injury on tongue but no such injury was found by the doctor during post mortem examination. Considering discrepancies appearing in the statement of witnesses, learned trial judge has pleased to acquit Tara Devi and that supports that the witnesses have exaggerated the occurrence in their deposition in court. As a matter of fact, PW1 who has projected himself as eye witness, in fact is not an eye witness. His father was subjected to assault but he never made attempt to save him rather he says that due to fear and to save himself he fled away from the place. As a matter of fact, PW1 who has projected himself as eye witness, in fact is not an eye witness. His father was subjected to assault but he never made attempt to save him rather he says that due to fear and to save himself he fled away from the place. Had it been so, there was no occasion for him to see later part of the occurrence which he has described in the fardbeyan as well as in his deposition in court. The story narrated by Mali Hazra PW3 does not find support from the evidence of PW1. He says that exchange of hot words had taken place between Tara Devi and sister-in-law (bhabhi) of Dinesh. The appellants with their associates had reached to the temple where Dinesh was present and they wanted to cause assault to Dinesh but this witness did not allow the appellants and their associates to commit offence in the temple and he compelled them to leave the place. If this was the fact, why the informant has not brought it on record that also goes to show that the informant PW1 disappeared from the temple itself and he had not seen any occurrence. The investigation done is also perfunctory. Neither sketch map of the place of occurrence was prepared nor blood stained soil was collected. The I.O. did not take effort to recover the weapon used for commission of the offence though the matter was reported to the police on that very date within 34 hours of the occurrence. The ocular evidence does not find support from the medical evidence and therefore, benefit of doubt may be given to the appellants. One of the appellants Chandradeep Manjhi is now aged more than 70 years. The long standing enmity is admitted by the witnesses. In such case, implication of more and more family members with false allegation is always expected and that is what has happened in the case at hand too. Initially ten accused were named but chargesheet was submitted only against six accused. Some false allegation was levelled against Tara Devi who stood acquitted. This goes to show that the witnesses have not come up before the court with fair hand and they have not presented true story of the occurrence. In the circumstances, the appellants are liable to be acquitted. 7. Some false allegation was levelled against Tara Devi who stood acquitted. This goes to show that the witnesses have not come up before the court with fair hand and they have not presented true story of the occurrence. In the circumstances, the appellants are liable to be acquitted. 7. Learned A.P.P. has opposed the argument and submitted that there are five eye witnesses who had seen the occurrence. The appellants as well as family of deceased are closely related to each other. Father of deceased Duryodhan was having two wives, from one wife appellant Chandradeep was born whereas Duryodhan was born through another wife. The descendants of both the wives were fighting for the property since long. Enmity is double edged weapon and that cuts both way. The relation between two families was strain and that has appeared in the evidence on record. It is submitted that the manner in which Duryodhan was subjected to assault, the weapon used for causing injuries and the injuries found on the person of deceased are sufficient to suggest that in such circumstance nobody would dare to intervene and that is what happened in the case at hand when Dinesh Manjhi PW1 did not take step to save his father. He has clearly deposed that he was apprehending danger of his life and therefore, he did not intervene to save his father and that was also not possible considering aggressive attitude of the appellants at the time of occurrence. Dinesh Manjhi PW1 has fully supported the prosecution case as made out by him in the fardbeyan. The other eye witness PW2 who is an independent witness, PW3, PW4 and PW6 have fully corroborated the prosecution case and described the occurrence in detail in their deposition in court. Nothing material has been taken out from them in course of their cross-examination. The injuries found by the doctor during post mortem examination corroborates the ocular version of the eye witnesses. In a case where eye witnesses were present, non-seizure of blood stained soil and non-preparation of sketch map are not fatal to the prosecution. If the testimony of eye witnesses are reliable, consistent and convincing, these minor lapses, if committed by the Investigating Officer, are not required to be taken note of. In a case where eye witnesses were present, non-seizure of blood stained soil and non-preparation of sketch map are not fatal to the prosecution. If the testimony of eye witnesses are reliable, consistent and convincing, these minor lapses, if committed by the Investigating Officer, are not required to be taken note of. The prosecution has proved its case beyond shadow of all reasonable doubts and the appellants have rightly been held guilty and the impugned judgment needs no interference. 8. We have heard the rival submissions and perused the case record. Dinesh Manjhi PW1 is the informant and son of the deceased. According to statement of PW1, in the morning at 10.00 a.m. exchange of hot words took place between Sushila Devi and Tara Devi after which that incident was brought to the notice of Tara Devi among her family members whereas Sushila Devi reported the occurrence to male members of her family. It is disclosed that Duryodhan (deceased) wanted to patch up the issue but he was overpowered and subjected to assault by the appellants and their associates. The appellants were armed with deadly weapons like axe, sword, farsa etc. The informant had been witnessing the assault caused to his father but he was so helpless that he could not dare to intervene. He says that all the appellants were inflicting blows by means of axe, sword, farsa etc. on the person of deceased Duryodhan. He has stated that as many as eight injuries were caused on the head and rest of the injuries were caused on the leg. The appellants did not stop after causing such number of injuries and they put a lathi on the neck and climbed on both end of lathi to create pressure on the neck. The statement of PW1 find full corroboration from the post mortem report and the evidence of doctor PW5. As many as 14 injuries were found on the person of deceased and out of 14 injuries, about 8 injuries are incised wound caused on upper part of the body, mainly on head. Both leg of the deceased were fractured, fracture of parietal bone was also there. Blood clot was found in the brain. Considering the evidence of PW1 and PW5 one can imagine as to how brutally Duryodhan was assaulted by appellants and their associates. Both leg of the deceased were fractured, fracture of parietal bone was also there. Blood clot was found in the brain. Considering the evidence of PW1 and PW5 one can imagine as to how brutally Duryodhan was assaulted by appellants and their associates. In the circumstances stated above, if he did not intervene, that will be considered as natural conduct of a human being who would first try to save his own life. The evidence of PW1 find full support from the evidence of PW2, PW3 and PW4. 9. Learned counsel has raised a point that Mali Hazra PW3 has given a different story which does not find place in the statement of PW1 and other eye witnesses. We do not agree to consider that he has given a different story rather statement of PW3 indicates that the appellants were bent upon to commit offence and they had been to the temple to cause assault to Dinesh Manjhi (PW1). When Mali Hazra PW3 did not allow the appellants to commit offence in the temple, they went back and targeted Duryodhan and succeeded to commit murder. Therefore, statement of PW3 instead of contradicting the statement of other eye witnesses, has strengthened the intention of the appellants that they were intending to commit offence. The rest part of the statement of Mali Hazra corroborates the statement of PW1, PW2 and PW4. 10. Shyamwati Devi PW6 happens to be wife of the deceased and that unfortunate lady has deposed what was seen by her. Truly speaking, she has not described the entire occurrence in detail but she has stated that the appellants caused assault to her husband Duryodhan by means of tangi and sword and killed him. Dr. Shesh Narayan Jha PW5 has conducted post mortem examination on the dead body of Duryodhan and described the injuries which supports the ocular statement of eye witnesses. The Investigating Officer has proved the fardbeyan Exhibit-3, formal F.I.R. Exhibit-4 and Inquest Report Exhibit- 6. There is no delay in lodging the F.I.R. rather it was promptly recorded at 15.30 hours on the date of occurrence itself i.e. within 34 hours of the incident and immediately investigation was carried out. The Investigating Officer has proved the fardbeyan Exhibit-3, formal F.I.R. Exhibit-4 and Inquest Report Exhibit- 6. There is no delay in lodging the F.I.R. rather it was promptly recorded at 15.30 hours on the date of occurrence itself i.e. within 34 hours of the incident and immediately investigation was carried out. It is settled law only because some of the accused who are named have not been chargesheeted or some of the accused who faced charge but acquitted are no ground for the acquittal of remaining accused against whom clinching evidence is available. 11. Considering all these aspects as discussed above, we do not find any merit in these appeals. Accordingly, the judgment of conviction and order of sentence dated 18.02.2003 passed by the 3rd Addl. Sessions Judge, Dumka in connection with Sessions Trial No.26 of 2001/591 of 2002 corresponding to G.R. Case No. 801 of 2000 arising out of Dumka, Saraiya Hat P.S. Case No.112 of 2000 is hereby upheld. 12. The appellants namely Chandradeep Manjhi, Binod Manjhi and Shambhu Manjhi are on bail and therefore their bail bonds are hereby cancelled. They are directed to surrender before the convicting/successor court within six weeks from today failing which the convicting/successor court shall take all endeavour to secure their attendance by issuing warrant of arrest and processes and shall further proceed to forfeit the bail amount after serving notice to the bailors. 13. In the result, these appeals stand dismissed.