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Jharkhand High Court · body

2016 DIGILAW 47 (JHR)

Nunu @ Nageshwar Singh v. State of Jharkhand

2016-01-06

R.R.PRASAD, RAVI NATH VERMA

body2016
ORDER The appellant was put on trial in Sessions Trial No. 284 of 2003 on the accusation of committing murder of Ranjit Singh. The trial court having found the appellant guilty convicted him for the offence punishable under section 302/34 IPC vide its judgment dated 06.12.2005 and sentenced him to undergo imprisonment for life vide its order dated 06.12.2005. 2. The case of the prosecution is that on 11.6.2003 at about 9/10 p.m, the informant Sundair Devi (PW3), her husband Lakshman Singh (PW2) and son Ranjit Singh (deceased) and his wife Lalita Devi (PW4), daughter in law of the informant slept in the night after taking their meals. At about 12 O' clock, the appellant came having a torch light with him. The informant woke up and asked who is there upon which the appellant disclosed his identity. When it was asked as to why in the dead of night, he has come, the appellant disclosed that he had come in search of “haria” (rice beer). After saying so, the appellant went away, but after half an hour, at about 12.30 a.m, the appellant again came along with accused Shiva and Patras who took Ranjit Singh forcibly with them on the pretext that they have to watch CD. At about 1.30 a.m (night) when the informant PW3 and he husband Lakshman Singh PW2, heard the distress sound of their son Ranjit, they came out and saw this appellant assaulting the deceased with Bhujali by saying that his father and mother have killed his family members by practising witch craft. When PW 2 and 3 asked him not to assault their son, they extended threats to go away, otherwise, they would also be killed. Meanwhile, his son any how got up and ran towards the road. The accused persons seeing him going towards the road, chased him and caught hold of him at the road and there also they assaulted him. 3. On the next day, 12.6.2003, at about 6.45 a.m, when S.I. Ravindra Pd. Gupta (not examined) came to the house of the informant, he recorded the fard beyan of the informant PW3 on the basis of which a formal FIR (Ext 5) was drawn. The said R.P. Gupta himself took over the investigation during which he held inquest on the dead body of the deceased and prepared an inquest report (Ext 4). Gupta (not examined) came to the house of the informant, he recorded the fard beyan of the informant PW3 on the basis of which a formal FIR (Ext 5) was drawn. The said R.P. Gupta himself took over the investigation during which he held inquest on the dead body of the deceased and prepared an inquest report (Ext 4). Thereupon, the dead body of the deceased was sent for post mortem examination which was conducted by PW 1 Dr. Nawal Kishore Sinha, who upon holding autopsy on the dead body of the deceased, did find the following injuries : (i) Incised wound 4” x 1/2” x scalp deep on posterior part of both parietal region. (ii) Incised wound on posterior part of both parietal region just below injury no. 1, the size of injury was seen as that of injury no.1. (iii) Incised wound 2” x1/2” x 3” on left supra clavicular region. (iv) Incised wound 1” x 1/2” x 1/2” on right ante cubital region. (v) Incised wound 2” x 1” x 5” on left side of abdomen,-omentum engaged in wound; (vi) blood in peritonial cavity was found in huge quantity; (vii) sharp cut of 1” size in spleen. (viii) Perforation of jejuntum at one point 4. The doctor issued post mortem examination report (Ext. 1) with an opinion that the death was caused due to internal haemorrhage on account of cut wound in the spleen and that all the injuries were caused by sharp cutting instruments. 5. The investigating officer, meanwhile, seized earth smeared with blood and also small pebbles from the place of the occurrence, i.e. the road. Meanwhile, statements of the witnesses were recorded. 6. On completion of the investigation, when the chargesheet was submitted, the trial court took cognizance of the offence. In course of time, when the case was committed to the court of session, the appellant was put on trial during which the prosecution examined altogether nine witnesses. On them, PWs. 2 and 3 are father and mother of the deceased. According to them, while they were sleeping the appellant came to their house. When PW 3 woke up she asked as to why he had come upon which the appellant replied that he had come in search of haria. (liquor). On them, PWs. 2 and 3 are father and mother of the deceased. According to them, while they were sleeping the appellant came to their house. When PW 3 woke up she asked as to why he had come upon which the appellant replied that he had come in search of haria. (liquor). The appellant went away, but after half an house, he came along with other accused Patras and Shiva and took Ranjit (deceased) the son of PWs 2 and 3 with them on the pretext that they have to watch CD. After some time, they heard the distress sound of their son and when they went there, they found the appellant assaulting the deceased with bhujali. They requested them not to assault, but the appellant and another accused threatened them to go away, otherwise, they would also be killed. According to them, the deceased was done to death at the road. PW4 Lalita Devi happens to be the widow of the deceased who has testified that she was told by her mother-in-law PW3 that the appellant had come at 12 O' clock and was asking for haria and when he was told that it was not there, he went away. She has further testified that at about 12.30, the appellant along with two other persons came and took her husband Ranjit Singh (deceased) along with them on the pretext of watching TV. But subsequently, her mother in law (PW3) informed her that her husband has been killed and then she went at the place of occurrence in the morning and saw the dead body of her husband. PW5 Khusman Nayak is the witness to the seizure of earth smeared with blood and also the shirt of the appellant. 7. On closure of the prosecution case when incriminating evidences appearing against the appellant were explained to him under section 313 Cr. P.C, the appellant denied it. Thereupon, the trial court placing its implicit reliance on the testimonies of PWs 2, 3 and 4 finding corroboration from the medical evidence, did find the appellant guilty and accordingly recorded the order of conviction and sentence which is under challenge in this appeal. 8. Mr. P.C, the appellant denied it. Thereupon, the trial court placing its implicit reliance on the testimonies of PWs 2, 3 and 4 finding corroboration from the medical evidence, did find the appellant guilty and accordingly recorded the order of conviction and sentence which is under challenge in this appeal. 8. Mr. Mohit Prakash, learned counsel for the appellant submits that PWs 2 and 3 are the interested witnesses and therefore the court in absence of any corroboration by the independent witnesses should not have placed reliance on the testimonies of PWs 2 and 3. In this respect, it was pointed out that the investigating officer does not seem to have recorded statements of any independent witnesses whose houses were near the place of occurrence, though they would have woke up when the deceased had raised alarm and that though PWs 2 and 3 claim to have seen the occurrence, but, in fact, they never seem to be the eye witnesses, as if they had seen the occurrence, they would have immediately informed the widow of the deceased about the incident and the widow of the deceased would have naturally rushed to the place of occurrence, but this is never the case of the prosecution. Rather, as per the testimony of PW4 Lalita Devi, she had gone to the place of occurrence in the next morning and that natural conduct on the part of PWs 2 and 3 would have been to inform the villagers, if, in fact, they had seen the occurrence and further would have made an attempt to take the injured to a doctor, but no such act is there on the part of PWs 2 and 3 and, therefore, PWs 2 and 3 do not appear to be the trustworthy witnesses and, therefore, the trial court should not have relied upon their testimonies. But the trial court by placing reliance on their testimonies committed an illegality and hence the order of conviction and sentence passed against the appellant is fit to be set aside. 9. But the trial court by placing reliance on their testimonies committed an illegality and hence the order of conviction and sentence passed against the appellant is fit to be set aside. 9. It was further submitted that as per the statement of the informant, the son-in-law was sent to the police station for giving information of the incident, but he has not been examined and that also creates doubt over the testimonies of PWs 2 and 3 and that the investigating officer has also been not examined in this case and thereby it could not be ascertained as to whether the occurrence had, in fact, taken place over the road where PWs 2 and 3 claimed that it was the place where their son was killed. 10. As against this, Mr. Ravi Kumar Singh, counsel appearing on behalf of the State submits that the occurrence has taken place in the dead of night when the appellant and the other accused persons took the deceased with them from the house. When the deceased raised alarm, PWs 2 and 3 went there and found the appellant assaulting the deceased with bhujali. 11. It is true that according to the witnesses, a number of houses were there around the place of occurrence, but it has never come that any of the villagers on hearing the distress sound of the deceased came to the place of occurrence. Had that been so, the matter would have been different as those witnesses would not have been examined by the prosecution. Further submission is that as per the testimonies of Pws. 2 and 3, when they came out of their house and saw the appellant and other accused persons assaulting the deceased, they requested them not to assault him, but the appellant held out threats giving them warning to go away, otherwise, they would also be killed and that the appellant was carrying grudge, though mistakenly, that it was PWs 2 and 3 who were responsible for the death of the family members of the accused by playing witch craft and thereby anger was obvious on the part of the appellant and in that event, PW4 would not have been advised to go to the place of occurrence in the dead of night. Similarly, neither PW2 nor PW3 dared to move in the village to inform the villagers about the incident and thereby the conduct on the part of PWs 2, 3 and 4 were never unnatural and that the testimonies of the witnesses, particularly PWs 2 and 3, get corroboration from the medical evidence and thereby the trial court was absolutely justified in recording the order of conviction and sentence against the appellant. 12. In the facts and circumstances, we are in agreement with the submission advanced on behalf of the State. As per the testimonies of PWs 2 and 3 while they were sleeping in the house, appellant came at about 12 O'clock inside the house as a result of which PW3 woke up and then asked the appellant as to why he had come. It was replied by the appellant that he had come in search of haria. Thereupon, he went away, but after about half an hour, the appellant came again along with two other persons and took their son along with them. This fact of the deceased being taken by the appellant and two others has been corroborated by PW4, Lalita Devi. According to Pws. 2 and 3, when they heard the distress sound of their son, they went out of their house and found the appellant assaulting the deceased with bhujali. On seeing their son being assaulted, both these PWs 2 and 3 requested the appellant not to assault their son, but they were threatened by them to go away, otherwise, they would also be killed. In that event, PWs 2 and 3 left the place leaving the dead body there by which time deceased as per PW2 had already been killed. Leaving the place of occurrence by PWs 2 and 3 clearly suggests that they were under threats and in that event, it is not expected from them to move around the village and to inform about the incident to the villagers in the dead of night itself. Similar is the case with Lalita Devi (PW4), the widow of the deceased, who came to learn from PW 3 in the night itself about her husband being killed by the appellant and since PWs 2 and 3 have been terrorized by the appellant, PW4 would not have thought it proper to go away in the night. Similar is the case with Lalita Devi (PW4), the widow of the deceased, who came to learn from PW 3 in the night itself about her husband being killed by the appellant and since PWs 2 and 3 have been terrorized by the appellant, PW4 would not have thought it proper to go away in the night. In such event which appears to be normal in the facts and circumstances, PW 4 did visit the place of occurrence in the next morning. 13. In the facts and circumstances stated above, we do find PWs 2, 3 and 4 to be trustworthy. Further, the testimonies of PW2 and 3 get corroboration from the medical evidence as the doctor did find the injuries being caused by sharp cutting weapons. It be recorded that admittedly the investigating officer has not been examined. But on account of non-examination of the investigating officer, no prejudice seems to have been caused to the defence as the place of occurrence gets established from the evidences of PW2 and 3 which further finds corroboration from the seizure list (Ext. 2) under which blood stained earth had been seized from the place of occurrence i.e. the road where the occurrence is said to have taken place. Under the circumstances as aforesaid, we do find that the trial court was absolutely justified in recording the order of conviction and sentence which is hereby affirmed and this appeal is, accordingly, dismissed. Appeal dismissed.