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2016 DIGILAW 780 (JHR)

Titu Pandit v. State of Jharkhand

2016-05-05

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. Upadhyay, J. This criminal appeal is directed against the judgment of conviction and order of sentence dated 04.06.2007 and 08.06.2007 respectively, passed by learned Addl. Sessions Judge, F.T.C.-IV., Deoghar, in connection with Sessions Trial No. 81 of 2005/ 39 of 2005, corresponding to G.R. Case No. 45 of 2005, arising out of Mohanpur P.S. Case No. 10 of 2005, whereby the appellants have been held guilty for the offence punishable under Sections 302/149, IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- each, in default of making payment of fine, imprisonment for three months. 2. The facts, reveal from the fardbeyan of Nago Devi, recorded on 17.01.2005, at about 10:30 hours, at Sadar Hospital, Deoghar, are that during previous night, while she was sleeping in the house along with her husband Manager Pandit (deceased), all the appellants, named in FIR, forcibly entered in the house and overpowered Manager Pandit. It is disclosed that Jhupar Pandit caught hold of the deceased, whereas, Titu Pandit inflicted blow by means of spear on the chest of Manager Pandit. Remaining accused were also accommodating former accused Titu and Jhupar. When the informant tried to intervene, she was threatened. On hulla, appellants fled away. Son of deceased and other villagers attracted towards the place of occurrence after hearing hulla raised by informant. Manager Pandit was taken to hospital but he was declared dead. 3. On the basis of fardbeyan of Nago Devi, Mohanpur P.S. Case No. 10 of 2005, under Section 302/34, IPC, was registered against the appellants. Investigation was carried out and charge-sheet against the appellants was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No. 81 of 2005/ 39 of 2005. Charges under Sections 302/149, IPC against appellants were framed, to which, they pleaded not guilty and claimed to be tried. To substantiate the charge, prosecution has examined altogether eleven witnesses, whereas, two defence witnesses have also been examined by the appellants. Learned Addl. Sessions Judge, at the conclusion of trial, placing reliance on evidences and documents available on records, held the appellants guilty and inflicted sentence, as indicated above. 4. Learned counsel for the appellants has assailed the impugned judgment on the ground that appellants have been falsely roped in this case due to land dispute prevailing between them. Learned Addl. Sessions Judge, at the conclusion of trial, placing reliance on evidences and documents available on records, held the appellants guilty and inflicted sentence, as indicated above. 4. Learned counsel for the appellants has assailed the impugned judgment on the ground that appellants have been falsely roped in this case due to land dispute prevailing between them. They are agnates of the deceased. It is admitted case of the prosecution that occurrence took place at 2:00 a.m. in the room of deceased. Source of light available in the room was small kerosene lamp (Dhibri). It is submitted that normally nobody keeps kerosene lamp on in the room during night. Investigating Officer and other witnesses have admitted that no kerosene oil was available in that lamp. This evidence goes to show that there was darkness in the room and it was not possible for informant-PW9 to identify all the six appellants. It was also not possible for her to explain what overt act was committed by each and every convict. As a matter of fact, deceased had encroached a piece of land, belonging to some Mohammedan people and on that encroached land, he had constructed a house. Certainly, he was having enmity with those people. Time of occurrence was 2:00 a.m., is also admitted. In fact, nobody had seen the occurrence during night. The informant and her son were occupying the old house and they could learn about the occurrence only in the morning but they have implicated the appellants because they were having grudge with them from before. The informant is not wholly reliable witness and therefore, no conviction can be recorded on her statement. 5. Learned counsel has further argued that PW5 (son of deceased) was not at all present in the room where alleged murder had taken place. Devendra Pandit, PW3 has clearly stated that Shravan Pandit, PW5 had been residing in the old house of deceased. Evidence of PW5 is required to be rejected for the reason that informant in her fardbeyan has not stated that PW5 was also occupying the room where occurrence took place on that very date. She has stated that her son and other villagers reached to the place on hulla. Therefore, established evidence on record is that PW5 had reached to the place on hulla and he was not present in the room at the time of occurrence. She has stated that her son and other villagers reached to the place on hulla. Therefore, established evidence on record is that PW5 had reached to the place on hulla and he was not present in the room at the time of occurrence. Further reason for not believing the version of PW5 is that he has stated that all the appellants were having weapon in the hands but the facts, according to informant remain that except spear without handle, the appellants were not having any weapon with them. Such vital contradiction, appearing in the statement of these two witnesses, is sufficient to discard their testimony. PW5 has further described the articles kept in the room where alleged occurrence took place. The manner of occurrence and the weapon held by the appellants, as described by PW5 do not find support from the evidence of PW9, who is none else but mother of PW5., therefore, evidence given by PW5 is not consistent. Learned counsel appearing for the appellants has referred the evidence of PW2, PW3, PW4, PW6 and PW7, who are hearsay witnesses and according to them, they reached to the place of occurrence on hulla. They have stated that they had seen injuries on the person of deceased-Manager Pandit. Surprising aspect in the statement of aforesaid witnesses is that they all have stated in their deposition that each of them came first, to the place of occurrence. None of them have stated after he reached to the place of occurrence, he found other witnesses present over there. In the circumstances, these hear-say witnesses are also not reliable. 6. Rathendra Vishnu Nanhe, PW10, is the Investigating Officer and the investigation conducted by him does not appear to be fair and reliable. He has stated that he had found blood stain on the cot, on which, deceased was sleeping but he did not seize either the bed or the cot. He admits that no blood stained cloth or blood stained bed of the deceased was produced before him by the informant or any family member. He failed to recover the weapon of the offence. Blood stained soil was not sent for its chemical examination. Kerosene lamp though seized but not produced in the Court during trial and therefore, authenticity of seizure of kerosene lamp becomes doubtful. As per evidence of informant, spear blow was inflicted on the chest of deceased, but, Dr. He failed to recover the weapon of the offence. Blood stained soil was not sent for its chemical examination. Kerosene lamp though seized but not produced in the Court during trial and therefore, authenticity of seizure of kerosene lamp becomes doubtful. As per evidence of informant, spear blow was inflicted on the chest of deceased, but, Dr. Vijay Kr. Agrawal, PW11, who conducted post-mortem examination, has found incised wound on the person of the deceased. 7. Learned counsel has further argued that learned Addl. Sessions Judge has committed gross error by holding all the appellants guilty under Section 302 with the aid of Section 149, IPC. Within no stretch of imagination, on the basis of facts available on record, the offence could be brought within the ambit of Section 149, IPC. Admitted case of the prosecution is that all the six appellants having only one spear that too without handle had entered in the house. The informant has implicated more and more family members of the appellants to take revenge due to old land dispute and to substantiate the allegation, she has stated that all the appellants overpowered the deceased at the time of occurrence. It is not a case of rioting and initially, the case was registered under Sections 302/34, IPC. Charge framed under Sections 302/149, IPC was unwarranted and prosecution has failed to substantiate the same. Contradictions taken from the mouth of witnesses have been referred to the Investigating Officer, PW10 in paragraph Nos. 41, 42, 43, 44 and 45. The witnesses examined are not reliable and trustworthy. Therefore conviction and sentence recorded against the appellants is liable to be set aside. 8. Learned A.P.P. has opposed the argument and submitted that specific overt act committed by each and every appellant has been described by informant-PW9. Appellants had committed house trespass during night with intention to commit murder. They overpowered the deceased, spear was asked to be handed over to appellant-Titu Pandit, Jhupar Pandit caught hold of the deceased and then, spear blow was given on the chest of deceased by appellant Titu Pandit. Therefore, all the appellants had participated in committing murder. Appellants had committed house trespass during night with intention to commit murder. They overpowered the deceased, spear was asked to be handed over to appellant-Titu Pandit, Jhupar Pandit caught hold of the deceased and then, spear blow was given on the chest of deceased by appellant Titu Pandit. Therefore, all the appellants had participated in committing murder. Occurrence took place inside the room of the house of the deceased and time of occurrence was 2:00 a.m. Presence of informant and other family members during wee hours is always expected and that is quite natural and therefore, they are the best witnesses and their testimony cannot be discarded or their presence could not be doubted. The informant has supported her version made in the fardbeyan in Court during trial. No material contradiction has been taken by the defence. Injuries caused to deceased and weapon used for causing injuries, as disclosed by informant, find support from post-mortem report (Ext.7) and evidence of PW11. Witnesses, who had reached to the place of occurrence on hulla, have also supported the prosecution case, as brought on record by the informant. They have stated that they noticed injuries on the chest of Manager Pandit (deceased). PW6 has admitted his signature appearing on the inquest report. Prosecution has proved its case beyond shadow of all reasonable doubts and the appellants have been rightly held guilty, therefore, the impugned judgment needs no interference. 9. Heard rival submissions and perused the evidences and documents available on record. According to fardbeyan and evidence of informant, PW9, the occurrence took place in a room of the house of the deceased during night at 2:00 a.m. and the room was occupied by informant and her husband. It is stated that all the appellants by using force got the tin sheet door opened and entered in the room. They overpowered Manager Pandit (husband of informant) and inflicted blow by means of spear on the chest causing bleeding injury. When she made protest, she was threatened. On hulla, appellants fled away. Thereafter, witnesses reached to the place and they had seen Manager Pandit having injury on his chest. Occurrence was narrated to them by the informant. Manager Pandit was removed to hospital but could not survive. In the Sadar Hospital, Deoghar, fardbeyan of the informant was recorded and the case being Mohanpur P.S. Case No. 10 of 2005 was registered. Thereafter, witnesses reached to the place and they had seen Manager Pandit having injury on his chest. Occurrence was narrated to them by the informant. Manager Pandit was removed to hospital but could not survive. In the Sadar Hospital, Deoghar, fardbeyan of the informant was recorded and the case being Mohanpur P.S. Case No. 10 of 2005 was registered. The informant has stated that she could identify the appellants in the light of small kerosene lamp, which was available in the room. Learned counsel for the appellants has given much stress on the source of light and submitted that Investigating Officer did not find any kerosene lamp lighting in the room. Alleged source of light disclosed by the informant was neither seized during investigation nor produced before the Court during trial. Witnesses, namely, Sukhdev Pandit and Jai Narayan Pandit in their deposition in Court have stated that they had seen small kerosene lamp (Dhibri) lighting in the room, but, such statement was not given by them before the Investigating Officer under Section 161, Cr.P.C. and therefore, those contradictions have been referred to in paragraph 43 & 44 of the deposition of Investigating Officer. Informant has also admitted that no Dhibri was seized from the room. Considering such submissions of learned counsel for the appellants, inference can be drawn that no sufficient source of light was available in the room, in which, Manager Pandit had sustained injury, but, we have to keep in mind that appellants were not unknown, either to informant or to deceased. Admittedly, they are agnates of deceased with whom land dispute was going on. Under such circumstances, identification of the appellants by the informant cannot be doubted and we do not agree to accept this argument in toto. So far role played by each and every appellant is concerned, we would discuss it later. 10. We have carefully gone through the evidence of Shravan Pandit, PW5 (son of deceased). We find that he has tried to project himself as an eye-witness but vital contradictions are appearing in the statement and we do not feel it safe to admit his entire deposition. The manner of occurrence and the weapon held by the appellants, as described by PW5, do not find support from the evidence of PW9, who is none else but mother of PW5. The manner of occurrence and the weapon held by the appellants, as described by PW5, do not find support from the evidence of PW9, who is none else but mother of PW5. At this juncture, leaving the evidence of PW5 aside, we would like to go through the evidence of PW9, who is informant. We have already stated in preceding paragraph that PW9 has supported her version made in fardbeyan in her deposition in Court. Description of articles kept in the room finds support from the evidence of Investigating Officer, PW10. Blood was fallen on the ground in that room where offence was committed and blood stained soil was also seized by Investigating Officer. Weapon used and part of the body of the deceased chosen for causing injuries find support from post-mortem report, Ext.7 and evidence of Dr. Vijay Kr. Agrawal, PW11. We do not find any exaggeration in the statement of PW9 on the point of manner of occurrence, weapon used and part of the body of the deceased chosen for causing injury. 11. Now again, we would like to come back to the point of source of light available in the room and the role played by each and every appellant and also the conviction recorded against the appellants under Section 302 with the aid of Section 149, IPC. We do not ready to accept this part of the evidence of PW9 that she identified each and every appellant and she was capable of describing the role played by each of them. If 5-6 persons would suddenly enter in a room during night, where a person is sleeping and no sufficient source of light is available, it is not possible or natural to identify all of them and further to describe the role played by each of them. We have examined the evidences available on record and do not agree to accept that all the appellants are liable to be convicted under Section 302 with the aid of Section 149, IPC for the reason six appellants are named in FIR but except one spear without handle, they were having no other weapon with them. It is disclosed by informant that appellant Titu Pandit was not having spear in his hand rather it was carried by another appellant to whom he asked to hand over the spear at the time of occurrence, then inflicted blow by using that spear. It is disclosed by informant that appellant Titu Pandit was not having spear in his hand rather it was carried by another appellant to whom he asked to hand over the spear at the time of occurrence, then inflicted blow by using that spear. Again, we would consider the argument that in a case where land dispute was prevailing from before, implication of more and more persons of family of other side is always expected. Under such circumstances, we do not agree to accept that all the appellants overpowered the deceased and played a specific role in assisting appellants Titu and Jhupar in committing murder. Since we do not agree with the finding that all the appellants are guilty of the offence of murder with the aid of Section 149, IPC and further in view of the discussion that land dispute was prevailing between the parties and further that appellants, namely, Basudeo Pandit, Bhutku Pandit, Suresh Pandit and Chhakouri Pandit were not having any weapon with them, we feel inclined to give them benefit of doubt and they are hereby acquitted from the charges under Sections 302/149, IPC. In the facts and circumstances, the appeal as against appellant Nos. 2, 4, 5 & 6, namely, Basudeo Pandit, Bhutku Pandit, Suresh Pandit and Chhakouri Pandit are concerned, the same stands allowed and judgment of conviction and order of sentence dated 04.06.2007 and 08.06.2007, respectively, passed by learned Addl. Sessions Judge, F.T.C.-IV., Deoghar, in Sessions Trial No. 81 of 2005/39 of 2005 as against them, is, hereby set aside. Since the appellant Nos. 2, 4, 5 & 6 are on bail, they are discharged from the liabilities of their bail bonds. 12. So far appellants Titu Pandit and Jhupar Pandit are concerned, allegations levelled against them by the informant is consistent in her fardbeyan and also in her deposition in Court. She has specifically described that Jhupar Pandit pressed the deceased to remain on the cot and accommodated Titu Pandit to inflict blow by means of spear. Needless to mention that injuries inflicted by means of spear find support from post-mortem report (Ext.7) and evidence of Doctor, PW11. Place of occurrence has been described by the Investigating Officer in para4 of his deposition, which corroborates version of informant regarding place of occurrence. So far hearsay witnesses are concerned, they have clearly stated that they reached to the place of occurrence on hulla. Place of occurrence has been described by the Investigating Officer in para4 of his deposition, which corroborates version of informant regarding place of occurrence. So far hearsay witnesses are concerned, they have clearly stated that they reached to the place of occurrence on hulla. They found Manager Pandit having bleeding injury on his chest. It is also on record that Manager Pandit was removed to hospital for his treatment but could not survive. 13. Considering the evidences available on record, discussions made above, we do not feel inclined to give benefit of doubt to appellant Nos.1 & 3, namely, Titu Pandit and Jhupar Pandit. Accordingly, the conviction and sentence recorded against the said appellants is hereby upheld. Appellant No.3-Jhupar Pandit is on bail and, therefore, his bail bond is hereby cancelled and he is directed to surrender before the convicting/successor court, in connection with Sessions Trial No. 81 of 2005/39 of 2005, arising out of G.R. Case No. 45 of 2005, corresponding to Mohanpur P.S. Case No. 10 of 2005, within six weeks from today, failing compliance bail amount shall stand forfeited and the convicting/successor Court shall issue process to secure his attendance. Appellant No.1 Titu Pandit is already in jail, hence, no order need be passed as against him. Appeals dismissed.