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2016 DIGILAW 545 (JHR)

Sanatan Soren v. State of Jharkhand

2016-04-01

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
JUDGMENT : Virender Singh & Shree Chandrashekhar, JJ. The appellant-accused persons (For short 'accused') were sent-up for trial for committing offence u/s 302/149 I.P.C. in Sessions Case No. 259 of 1993. Along with them, another accused Tarachand Tuddu @ Tara Tuddu who was charged for offence u/s 302/109 I.P.C. was also tried and convicted. However, during the pendency of the criminal appeal filed by him separately i.e., Criminal Appeal (DB) No. 532 of 2003, he died as such the second appeal stood abated. The learned 4th Additional Sessions Judge, Dumka found all the six accused including aforesaid Tarachand Tuddu guilty for charge u/s 302/149 I.P.C. and sentenced them to undergo R.I. for life for allegedly committing the murder of one Malho Kisku. Aggrieved of the judgment and order of conviction and sentence dated 28.03.2003 and 31.03.2003, the present Criminal Appeal (DB) No. 612 of 2003 is before us. PROSECUTION CASE : 2. The prosecution case is unveiled in the fardbeyan of one Babulal Soren, the husband of the deceased who gave his statement before the Officer-in-Charge of Ramgarh Police Station on 08.09.1992. The informant who at the time of occurrence was at village Kadma, was informed about the murder of his wife namely, Malho Kisku at Dhankutta, by Shyamlal Murmu (since dead) whereupon, the informant came to Dhankutta where his son Guru Soren (P.W. 1) told him the eye-witness account of the said occurrence. The informant claimed that his daughter namely, Sukarmuni Soren (P.W. 2) and several other villagers had also witnessed the occurrence. The fardbeyan of the informant-Babulal Soren was recorded on 08.09.1992 at 15:45 hrs, on the basis of which First Information Report being Ramgarh P.S. Case No. 75 of 1992 was registered for offences u/s 147, 148, 149 and 302 I.P.C. against Sanatan Soren, Devi Lal Soren, Hopna Soren, Bishu Soren, Soneram Soren, Dev Lal Soren and Tarachand Tuddu @ Tara Tuddu (since dead). The police, on completion of the investigation submitted charge-sheet for offence u/s 147, 148, 149 and 302 r/w Section 149 I.P.C. against all the accused persons except, Tarachand Tuddu who was charge-sheeted u/s 302/109 IPC, showing Dev Lal Soren absconder. PROSECUTION EVIDENCE : 3. During the trial, the prosecution examined as many as 10 witnesses including, Babulal Soren (P.W. 4), Guru Soren (P.W. 1), Sukarmuni Soren (P.W. 2) and Dr. PROSECUTION EVIDENCE : 3. During the trial, the prosecution examined as many as 10 witnesses including, Babulal Soren (P.W. 4), Guru Soren (P.W. 1), Sukarmuni Soren (P.W. 2) and Dr. Prabhat Kumar Sinha (P.W. 6) who had conducted the autopsy on the dead-body of the deceased Malho Kisku. The trial court found that P.W. 1 and P.W. 2 are the only eye-witnesses to the occurrence however, the evidence of Babulal Soren who has seen the injuries on the dead-body of his wife and also stated about the motive for committing murder of his wife, inspired confidence. 4. Dr. Prabhat Kumar Sinha (P.W.6) who was posted on 10.09.1992 at Sadar Hospital, Dumka and who had conducted post-mortem examination on the dead-body found the following antemortem injuries on the body of Malho Kisku: (i) “Incised wound 4'' X 1-1/2 X bone deep over right temporal region extending up to parital region of right side of the skull. On dissection, there was depressed fracture of the temporal parital bone of right side with laceration of connecting brain and meninges. Huge collection of blood found in the cranium. (ii) Incised would over back of the neck 3'' X 2'' X cutting all structures and large vessels as well as vertibrae 3rd and 4th cervical, larynx, pharynx, trachea, except remaining enterior side of the skin and subcutaneous tissues in front of neck. (iii) Incised wound 3'' X 1/2'' X muscle over the left scapular region. (iv) Incised would 2'' X 1-1/2'' X bone dip over upper part of the right arms with fracture of humereous neck. (v) Incised would 2'' X 1'' X bone dip over the right writ on the postenor part with fracture of lower and of the radius and ulna.” 5. We do not feel the necessity of referring to other prosecution evidence. 6. The trial court, noticing the evidence of PWs and 5 incised wound on the skull, neck, arm and wrist of the deceased, recorded a finding that sufficient material is available on record to establish that the accused persons in prosecution of the common object of them all except, Tarachand Tuddu @ Tara Tuddu committed murder of Malho Kisku as such convicted and sentenced as stated hereinabove. 7. Mr. 7. Mr. Jai Prakash Jha, the learned Senior Counsel for all the accused contends that the discrepancy in the medical evidence and the ocular evidence clearly establish that the appellants Hopna Soren and Soneram Soren atleast were not part of the unlawful assembly. Except, 5 incised wounds, no other injury has been found on the dead-body of Malho Kisku and considering the fact that the accused persons belonged to the same family and no independent witness has been examined to support the case of the complainant and the fact that the possibility of knitting a net wider to take all the male members of one family, accused Hopna Soren and Soneram Soren, who were allegedly armed with lathies and there being no injury on the person of deceased by lathi, should have been extended the benefit of doubt. 8. The learned Senior counsel further contended that the prosecution has failed to establish the place of occurrence, time of occurrence and the manner of occurrence, establishing assault by all the accused persons on the deceased. It is submitted that the investigating officer did not collect the blood-stained earth or the weapon of assault and thus, fatal to the prosecution. It is further submitted that in this situation non-examination of the investigating officer has caused serious prejudice to the accused persons. The learned Senior counsel thus submitted that considering the serious lacuna in the prosecution case, it must be held that the prosecution has failed to conclusively establish the charges framed against the accused persons beyond and shadow of doubts, resultantly, the accused persons are entitled for acquittal from all the charges. 9. Mr. Pankaj Kumar, the learned A.P.P. however, taking us through the evidence of Guru Soren (P.W. 1) and Sukarmuni Soren (P.W. 2) submits that all the accused persons formed part of unlawful assembly, they chased the deceased and assaulted her with their respective weapons which caused her death. The learned A.P.P. further submitted that the manner of occurrence clearly discloses common object of all the accused persons to commit murder of Malho Kisku and therefore, no benefit of doubt can be extended to accused Hopna Soren and Soneram Soren, despite there being no injury of blunt weapon (lathi). The learned A.P.P. further submitted that the manner of occurrence clearly discloses common object of all the accused persons to commit murder of Malho Kisku and therefore, no benefit of doubt can be extended to accused Hopna Soren and Soneram Soren, despite there being no injury of blunt weapon (lathi). The learned APP referring to the cross-examination of the prosecution witnesses by the defence submits that no prejudice has been caused to the appellants as the place of occurrence (situs) stands established and therefore, non-examination of the I.O. will not disturb the basic substratum of the prosecution case. 10. The fardbeyan of Babulal Soren on the basis of which the First Information Report was lodged, is based on hearsay evidence. Shyamlal Murmu who had informed the informant about the occurrence, was not an eye-witness. However, the son of the informant though, narrated the occurrence to him, as one finds in the fardbeyan, the informant has not alleged that the accused Hopna Soren and Soneram Soren were also armed with lathi. No overt act has been attributed to these two accused persons by the informant. The specific case of the prosecution at the initial stage was that the deceased Malho Kisku died due to injuries caused by tangi, Dab, and coconut cutting knife. The witness Guru Soren (P.W. 1) deposed in the court that Hopna Soren, Soneram Soren were holding lathi and all the accused persons assaulted his mother. This witness is very specific of attribution of injuries by all the accused persons, whereas, the post-mortem examination report discloses that no other injury possible by lathi except, 5 incised wounds caused by sharp-edged weapons were found on the dead-body of the deceased. The prosecution has failed to explain this vital discrepancy in the medical evidence and the ocular evidence. The evidence of P.W. 2 namely, Sukarmuni Soren also corroborates the evidence of P.W. 1 and, this witness has also, except stating that Hopna Soren and Soneram Soren were armed with lathi, not attributed any specific overt act by these two accused persons. This all creates serious doubts about the participation of Hopna Soren and Soneram Soren in the occurrence. 11. The judgment and order in Sessions Case No. 259 of 1993 clearly discloses that the Trial Judge has arrived at a conclusive finding of common object of the unlawful assembly considering the evidence of P.W. 1 and P.W. 2. This all creates serious doubts about the participation of Hopna Soren and Soneram Soren in the occurrence. 11. The judgment and order in Sessions Case No. 259 of 1993 clearly discloses that the Trial Judge has arrived at a conclusive finding of common object of the unlawful assembly considering the evidence of P.W. 1 and P.W. 2. However, except the allegation that all the accused persons chased Malho Kisku and they assaulted her with their respective weapons, no evidence was brought on record to establish that Hopna Soren and Soneram Soren also shared the common object of the unlawful assembly viz to cause death of Malho Kisku. No doubt, mere membership of unlawful assembly is sufficient to record a finding of guilt however, there is a difference between mere presence in the unlawful assembly and being member of an unlawful assembly. Maybe, the accused namely, Hopna Soren and Soneram Soren were present at the place of occurrence, but to fasten liability u/s 302/149 IPC, besides their presence something more has to be established. Their conduct or the overt act must disclose that they also shared the common object of the unlawful assembly. In the present case, when the deposition of the eye-witnesses is examined in the context of the medical evidence which belies assault by lathi on the deceased especially when the eye-witnesses wanted to attribute this part more specifically and the fact that all the accused persons belong to the same family and the fact that no other independent witness has been examined by the prosecution, in support of the prosecution case, on consideration of the entire material brought on record, we are of the view participation of Hopna Soren and Soneram Soren in the occurrence is not free from doubt. These two accused persons are thus given benefit of doubt. 12. Let us now advert to the other accused. The informant gave his statement before the officer-in-charge of Ramgarh police station at 15.45 PM however, in his evidence in court he has stated that he came to Dhankutta at 5.00 PM. Referring to the evidence of P.W.4 in paragraph no.6 of his deposition and the date and time of post-mortem examination, the learned Senior counsel for the accused contends that the prosecution has failed to establish the time of occurrence and the manner of occurrence. This contention is liable to be rejected. Referring to the evidence of P.W.4 in paragraph no.6 of his deposition and the date and time of post-mortem examination, the learned Senior counsel for the accused contends that the prosecution has failed to establish the time of occurrence and the manner of occurrence. This contention is liable to be rejected. The fardbeyan of Babulal Soren (P.W.4) was recorded by S.I., Balram Singh on which P.W.4 simply put his left thumb impression. It appears that the informant is an illiterate person. His evidence in the court regarding the time of his return from Dhankutta has to be taken as an approximate time in his own assessment and not strictly by watch. The aforesaid discrepancy in the evidence of the informant would not affect the prosecution case in so far as, time of occurrence is concerned. 13. The eye-witnesses have clearly deposed that at about 11.00 AM the accused persons assaulted Malho Kisku. The post-mortem examination was conducted at 10.00 PM on 10.09.1992 and the doctor has opined that the death had occurred within 72 hours. The informant has also stated that the dead body was lifted only on Wednesday and it was taken to hospital on a tractor. The evidence of the doctor and the eye-witnesses fully establish the prosecution case that the death had occurred at about 11.00 AM on 08.09.1992, which was Tuesday. 14. In so far as, presence of the accused namely, Sanatan Soren, Devi Lal Soren and Bishu Soren is concerned, the evidence of the eye-witnesses has remained unshaken. The nature of injuries on the body of the deceased definitely corroborates the prosecution story of these three appellants carrying sharp-cutting weapon and assaulting the deceased with their respective weapons. The fact that the eye-witnesses have named only Devi Lal Soren who gave hasua blow on the neck of the deceased cannot be construed to mean that he alone has inflicted all the injuries on the body of the deceased. The evidence of the eye-witnesses, in fact, discloses that it was Devi Lal Soren, who first assaulted the deceased. The nature of injuries on the body of the deceased indicates that one of the weapon of assault was a heavy sharp-cutting weapon and it has come on record that one of the accused was carrying “Dab” which is a heavy sharp-cutting weapon. The nature of injuries on the body of the deceased indicates that one of the weapon of assault was a heavy sharp-cutting weapon and it has come on record that one of the accused was carrying “Dab” which is a heavy sharp-cutting weapon. The doctor who conducted post-mortem has found depressed fracture of the temporal parital bone of right side with laceration of connecting brain and meninges. Huge collection of blood was found in the cranium over back of the neck. The doctor has opined that the cause of the death was haemorrhage and shock as a result of injury on the skull and neck of the deceased and either of the injury was sufficient to cause her death in ordinary course of nature. The trial court has found that the injuries and the weapon used got full corroboration with the ocular evidence. The accused persons have not cross-examined the doctor on any aspect of the matter and only one question was put to him, to which he answered that he did not take the signature of the constable and the chowkidar on Ext.2 and the dead body was decomposed. Since it has come in evidence of the informant that the dead body remained in the village and the occurrence took place in the month of September, why the dead-body got decomposed, stands explained. 15. Considering the evidence brought on record in its entirety, the defence taken by the accused persons which is reflected in the cross-examination of the witnesses, the failure of the investigating officer to collect blood-stained soil and to seize the crime weapon and even the non-examination of the investigating officer, we are of the considered view that the foundation of the prosecution case is not shaken in any manner. The presence of the eye-witnesses at the place of occurrence has not been challenged by the defence rather, presence of the accused persons at the place of occurrence has been established by the prosecution. Presence of three accused namely, Sanatan Soren, Devi Lal Soren and Bishu Soren gets corroboration from the injuries caused on the person of the deceased and the weapon held by them individually. The trustworthiness of the evidence brought against these three accused excludes the possibility of extending any benefit of doubt to them. 16. Presence of three accused namely, Sanatan Soren, Devi Lal Soren and Bishu Soren gets corroboration from the injuries caused on the person of the deceased and the weapon held by them individually. The trustworthiness of the evidence brought against these three accused excludes the possibility of extending any benefit of doubt to them. 16. We on the basis of the prosecution evidence available on record have tried to filter the chaff from the grain. It is well-settled that even if one part of the evidence of a witness is discarded, the other part of the same evidence may be found trustworthy and may form the foundation for recording a finding of guilt. The present is a case of that nature only. The facts in “Kuldip Yadav & Ors. vs. State of Bihar”, reported in 2011 (3) East Cr C 55 (SC) : (2011) 5 SCC 324 and in “Govindaraju @ Govinda Vs. State by Sriramapuram Police Station and Anr.”, reported in (2012) 4 SCC 722 , on which the learned Senior counsel placed reliance, are clearly different from the facts of the present case. The aforesaid judgments were rendered by the Hon'ble Supreme Court in the facts of that case. In fact, the Hon'ble Supreme has held that if testimony of the witness is reliable, trustworthy, cogent and duly corroborated by other witness or admissible evidence, the evidence of such witness cannot be discarded only on the ground that he is an interested witness. However, one of the exceptions to this rule is when the testimony of the witness is contrary to or not corroborated by the medical evidence. 17. The net result now surfaces is that, the instant appeal is partly allowed. Appellant-accused no.3 namely, Hopna Soren and no.5 namely, Soneram Soren, who are already on bail, stand acquitted of the criminal charges. They are discharged of their respective bail bonds. The conviction and sentence qua accused Sanatan Soren, Devi Lal Soren and Bishu Soren, who are presently in jail, are affirmed however, converting their conviction into one under Section 302/34 IPC instead of Section 302/149 IPC. The criminal appeal filed on their behalf is dismissed with the aforesaid modification. These three appellants shall serve the remainder of the life sentence slapped upon them. The jail authority shall be informed accordingly. 18. A copy of the judgment be transmitted to the trial court for intimation. Appeal partly allowed.