Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1701 (JHR)

Salkhu Hansdah v. State Of Jharkhand

2017-09-22

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT Ananda Sen, J. - This criminal appeal, instituted on the basis of an application received from the accused person (appellant), serving sentence, through the Superintendent of the Central Jail, Dumka, is directed against the Judgment of conviction dated 29th May, 2009 and Order of sentence dated 30th May, 2009 passed by the Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 183 of 2006/Sessions Trial No. 065 of 2008, whereby the accused-appellant herein has been found and held guilty for committing offence punishable under Sections 302/34 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 20,000/- for the offence under Sections 302/34 of the Indian Penal Code. In default of payment of fine, it has been ordered that he will further undergo simple imprisonment for one year. It has also been ordered that the amount of fine shall be given to the wife of the deceased in lieu of compensation. 2. The prosecution case is based on the fardbeyan of P.W.7 Manoj Hansda, who happens to be the son of the deceased, recorded by the S.I. Shamshad Ali (Officer-in-Charge of Borio, Mirjachouki) on 17.06.2004 at about 14.00 hrs. at Khauri Khulona at the place of occurrence, wherein it has been stated by the informant that at about 12.15 hrs. on 17.06.2004, father of the informant had returned from the house of maternal uncle of the informant and at that time itself informant''s uncle Salkhu Hansda, who was sitting near his house along with his wife and son, by abusing informant''s father told him that his goat eats the maize crops in the fields of Salkhu. Upon this informant''s father told that he being a younger brother is abusing the elder brother, and his goat never goes to the fields of the appellant. On hearing this, Kakda Hansda and his mother Manjhli Hansda (son and wife of Salkhu Hansdah) asked to kill the informant''s father saying that as he (informant''s father) is making his goat to eat maize crop and again is arguing also. The informant, his mother and his younger uncle Sakla Hansda, all were sitting there on a cot and had heard these conversations. The informant, his mother and his younger uncle Sakla Hansda, all were sitting there on a cot and had heard these conversations. In the meanwhile, Salkhu Hansda went running inside his house and came out with a big Bhala and pierced into the chest of informant''s father upon which informant''s father started crying and wriggling. Heavy blood also started oozing and very shortly he died. After the death of informant''s father, Salkhu Hansda, Kakda Hansda and Majhli Soren started fleeing and upon the alarm raised by the family members, the villagers assembled, who also chased and caught hold of Salkhu Hansda and Majhli Soren. 3. On the basis of the aforesaid fardbeyan, Borio (Mirja Chowki) Police Station Case No. 92 of 2004 for offences under Sections 302/34 of the Indian Penal Code was registered. The police, after completion of the investigation, submitted charge sheet against the appellant under Sections 302/34 of the Indian Penal Code. The Court took cognizance and committed the case to the Court of Session. Charge was framed and on pleading not guilty, the appellant was put to trial. 4. To prove the prosecution case, the prosecution examined altogether 9 witnesses. (i) P.W.1 is Sakla Hansda. He stated that goat of Juddi Hansda ate maize crops of Salkhu, which resulted in altercation between Juddi and Salkhu. The wife of Salkhu, Manjhli Soren, directed Salkhu to kill the deceased Juddi. Salkhu went inside his house, brought a Bhala and struck Juddi on his right chest. Juddi, after sustaining the injury, died. He stated that the house of the deceased and the appellant are at the same place. Salkhu was fleeing, but, the villagers caught Salkhu and his wife Manjhli. They were handed over to the police. He stated that the Bhala was struck in the body of the deceased. He deposed that both the appellant and the deceased are his elder brothers. He identified both the accused in the Court. He stated that the goat had not eaten the crops in his presence, but, when altercation was going on, he was present there. He stated that the entire incident had occurred so suddenly, thus it was not possible to mediate. He denied the fact that the informant had an intention to put the accused in jail, so that he can cultivate his lands. He stated that just before the assault, he was sitting in the cot. He stated that the entire incident had occurred so suddenly, thus it was not possible to mediate. He denied the fact that the informant had an intention to put the accused in jail, so that he can cultivate his lands. He stated that just before the assault, he was sitting in the cot. He stated that he tried to intervene, but, before he could do so, the entire occurrence had taken place. (ii) P.W.2 is Daud Hansda. He stated that on hearing screams, he came out of the house and saw that a bhala was inserted in the chest of Juddi and blood was oozing out and Juddi died. He stated that Juddi is his younger brother and accused Salkhu Hansda is his elder brother. He stated that wife of Salkhu, i.e., Manjhli and her son Kakda Hansda were along with Salkhu. He stated that everyone was present there and Salkhu and Manjhli were caught by the villagers. Police came and the accused were handed over to the police. He identified Salkhu and Manjhli in the Court. He stated that he was sitting on the cot. He stated that his house is 100 meters east of the place of occurrence. He stated that he took half a minute to reach to the place of occurrence after hearing the screams. He stated that the altercation between them took place because of grazing of goat. (iii) P.W.3 is Moti Murmu, who stated that both are his maternal uncles, i.e., Juddi and Salkhu, who were quarrelling. He further stated that intensity of the quarrel increased and then Salkhu came with a Bhala and struck the deceased Juddi on his chest where after this appellant along with his wife and his son Kakda fled from the place of occurrence, but, the villagers caught hold of Salkhu and his wife. Police reached the place of occurrence, when the appellant and his wife were handed over to the police. He stated that Juddi died within 5-10 minutes. He identified the spear (Bhala), which was material exhibit, in Court. He stated that during the altercation, he was in the courtyard of his house. When he reached the place of occurrence, Juddi was already struck by the Bhala. He stated that police had asked him about the deceased and the accused and the reasons of the dispute and also about the occurrence. He stated that during the altercation, he was in the courtyard of his house. When he reached the place of occurrence, Juddi was already struck by the Bhala. He stated that police had asked him about the deceased and the accused and the reasons of the dispute and also about the occurrence. He stated that the dispute arose because of grazing of goat, but, he has no knowledge to whom the goats belonged. He stated that he was shown the material exhibit, which he identified and he said that the Bhala had a special mark and its tip point was little bent. (iv) P.W.4 is Joseph Hansda. He stated that Juddi is the eldest brother and spear was pierced in his right chest. He stated that when he reached the place of occurrence, Juddi was already dead. He stated that Salkhu had assaulted the deceased. He stated that Salkhu is also his brother, who was fleeing, but, the villagers caught him along with his wife. He stated that the accused were also handed over to the police. He stated that spear, which was in Court as Material Exhibit 1 is not the same Bhala which was used in the assault. He stated that the lands of Juddi is now being cultivated by Manoj Hansda as all of them had given the lands to him. He denied that there was no dispute between the deceased and the appellant. (v) P.W.5 is Bariar Hansda. He stated that he was in his house and on hearing screams, he went to the place of occurrence and saw spear struck in the chest of Juddi. He stated that Salkhu has pierced the spear. He further deposed that Salkhu, Kakra Hansda and Manjhli Soren tried to flee, but, the villagers caught hold of Salkhu and his wife, but Kakra fled. He stated that the deceased was his elder uncle. He stated that when he went to the place of occurrence, deceased was already dead and saw Salkhu fleeing, so, he believed that Salkhu had killed the deceased. He stated that he had caught hold of Salkhu and his wife. (vi) P.W.6 is Gomdi Hansda. He stated that on hearing screams he came and saw his younger brother Salkhu, who had assaulted his elder brother Juddi with a spear. Salkhu was fleeing, but, the villagers caught hold of him. He stated that he had caught hold of Salkhu and his wife. (vi) P.W.6 is Gomdi Hansda. He stated that on hearing screams he came and saw his younger brother Salkhu, who had assaulted his elder brother Juddi with a spear. Salkhu was fleeing, but, the villagers caught hold of him. The spear was pierced on the left side of the chest. The police came and this appellant was handed over to the police. By seeing the material exhibit-I (the spear), this witness has identified the same. He stated that there was no dispute between the deceased and the appellant. The incident occurred suddenly. (vii) P.W.7 is Tala Mai Marandi, who is the wife of the deceased. She stated that she and her son Manoj was sitting in the courtyard and a quarrel broke out between the deceased and the appellant Salkhu took out a spear and struck the deceased on his left chest. After the assault, Salkhu started to flee, but he was caught by the villagers. After seeing the material exhibit-I, she identified the said material exhibit to be same spear by which Juddi was killed. She stated that Salkhu and his wife were present in Court. She stated that when they were in the courtyard, and the deceased was also present. She stated that she was present at the place of occurrence, but, as the incident occurred within a few minutes, she could not do anything. She stated that Salkhu, after assaulting did not wait, but, fled away. She stated that the lands of the appellant is now being cultivated by her son. She was put a question that she wants the appellant to remain in jail, so that her son could keep on cultivating the land of the appellant, to which she stated that there is no one, that is why her son is cultivating the fields. (viii) P.W.8 is Manoj Hansda, the informant. He stated that they were sitting in the courtyard, when Salkhu started abusing his father on the plea that his goat always grazes the maize crop of this appellant. Thereafter Salkhu went inside the house and brought a Bhala and pierced it in the chest of the deceased and the deceased died. This witness identified the exhibit, i.e., Bhala, which was used in the occurrence. Thereafter Salkhu went inside the house and brought a Bhala and pierced it in the chest of the deceased and the deceased died. This witness identified the exhibit, i.e., Bhala, which was used in the occurrence. The accused tried to flee, but the appellant and his wife were caught by the villagers, but, their son managed to flee. He identified his signature on the fardbeyan, which is marked as Exhibit 1. He identified the appellant and his wife, who were in Court. He stated that before the assault, they could not catch the appellant as the incident happened at a very fast pace. He stated that the police had taken the body for postmortem. He stated that Daud Hansda had also seen the occurrence. He stated that the altercation had taken place for the first time on the date of occurrence. He stated that Salkhu was caught by Bariar Hansda. Salkhu was taken by the police along with the dead body. (ix) P.W.9 is the doctor, who found the following:- Ante-mortem injuries (1) Bhala used by adivasis found pierced on left side of chest on the upper portion on dissection (i) Head and neck - NAD (ii) Chest - One bhala was found already pierced on upper portion of left side of chest. (iii) Left lung - punctured (iv) Left heart - punctured (v) blood and clot found in thoracic cavity (vi) Liver - Punctured (vii) abdomen - stomach empty He found that the spear was already pierced into the chest on the upper portion of the left side of the chest. The weapon was handed over by the doctor to the police. He stated that the postmortem report was written and signed by him, which was marked as Exhibit 2. 5. The investigating officer was not examined in this case. 6. After closure of the prosecution evidence, statement of the appellant was recorded. The defence has not adduced any witness in his support. 7. The learned Trial Court, after considering the materials on record and after hearing the arguments of the parties, by a Judgment of conviction dated 29th May, 2009, has held the appellant guilty for committing offence punishable under Sections 302/34 of the Indian Penal Code and by Order of sentence dated 30th May, 2009 sentenced him to undergo rigorous imprisonment for life and a fine of Rs. 20,000/-. 20,000/-. In default of payment of fine, it has been ordered that he will further undergo simple imprisonment for one year. It has also been ordered that the amount of fine shall be given to the wife of the deceased in lieu of compensation. 7.1. Aggrieved by the said Judgment of conviction and Order of sentence, the appellant has preferred this appeal before this Court. 8. We have heard learned counsel for the appellant and the learned A.P.P. for the State; have gone through the lower court records; and have examined the evidence recorded. 9. The counsel for the appellant submits that all the witnesses are interested witnesses and are related to the deceased. He submits that only to grab the lands of this appellant, he has been made an accused, which is supported by the fact that the witnesses have clearly stated that the lands of this appellant are now being cultivated by the informant. He submits that the witnesses are not at all reliable and there are contradictions in their statements. He stated that if the evidences of these witnesses are scrutinised properly, conclusion will be reached that none of them are eye witnesses. He stated that since none of them have seen the assault, it cannot be said that the appellant has committed the murder. He submits that the witnesses have categorically stated that the relationship between the accused and the deceased was cordial and there was no enmity between them. He further submits that the investigating officer has not been examined in this case, which has prejudiced the defence. On these grounds, the counsel for the appellant submits that there is an element of doubt in involvement of the appellant in this case and thus, he deserves to be acquitted. 10. On the contrary, learned A.P.P. submits that the evidence of all the witnesses are cogent and corroborates with each other. He submits that the medical evidence also corroborates with the evidence of occular witnesses. Deceased was pierced with a spear on his chest and the impact of injury was such that only the doctor during postmortem could remove the spear. Accused tried to flee, but they were caught and handed over to the police. He submits that the witnesses cannot be said to be partisan as the deceased and the appellants are brothers. 11. Deceased was pierced with a spear on his chest and the impact of injury was such that only the doctor during postmortem could remove the spear. Accused tried to flee, but they were caught and handed over to the police. He submits that the witnesses cannot be said to be partisan as the deceased and the appellants are brothers. 11. After hearing the parties and on going through the lower court records, and from analysing the evidence of the prosecution, we find that the informant, i.e., P.W.8 and his mother, P.W.7 (Tala Mai Marandi) are the eye witnesses to the occurrence. They stated that they were sitting in the courtyard when the verbal altercation started between the appellant and the deceased. The appellant then brought a spear and pierced the same on the chest of the deceased. After doing so, the appellant, his wife and their son who were also present there, tried to flee, but, this appellant and his wife were caught. This evidence is consistent and there is no deviation in the statement of these two witnesses. They stated that the incident occurred at such a fast pace that they could not intervene. They also stated that the reason of the occurrence is the dispute between the appellant and the deceased on the point of grazing of goat of the deceased. The P.W.1 also stated that at first there was some altercation and thereafter Manjhli Soren, the wife of the appellant told the appellant to kill the deceased, so the appellant went inside his house, brought a spear and pierced the same on the chest of the deceased, as a result of which the deceased died. He also stated that the appellant was fleeing, but, the appellant and his wife were caught and were handed over to the police. He also stated that the spear remained struck in the body. The statement of this witnesses is also corroborated by the statements of P.W.7 and P.W.8 and thus, we see that this witness is also an eye witness to the said occurrence. P.W.2 and P.W.3 reached the place of occurrence on hearing screams and saw a spear pierced in the chest of the deceased and the deceased was dead. They stated that the villagers caught hold of this appellant and his wife, who were fleeing. P.W.2 and P.W.3 reached the place of occurrence on hearing screams and saw a spear pierced in the chest of the deceased and the deceased was dead. They stated that the villagers caught hold of this appellant and his wife, who were fleeing. P.W.3 has even identified the Bhala, which is the material exhibit, to be the murder weapon. Thus, from the statement of these two witnesses, who reached the place of occurrence, instantaneously after the occurrence had taken place, saw the deceased dead and the appellant and his wife was being caught hold by the villagers as they were trying to flee. P.W.4 also reached the place of occurrence immediately after the occurrence and saw the dead body of the deceased, whose chest was pierced by a spear. But, this person has stated that the material exhibit is not the same weapon which was used in the incident. P.W.5 is Bariar Hansda, who stated that on hearing screams, he went to the place of occurrence and saw that the deceased was struck by the appellant by a spear and they tried to flee. He stated that the villagers caught hold of the appellant and his wife, but the son fled. In his cross examination, he stated that he was the person, who caught hold of the appellant and his wife. P.W.6 also reached the place of occurrence after hearing commotion and saw that Salkhu had struck the deceased with a Bhala and the villagers had caught hold of him. He also identified the spear which was struck by the appellant. Thus, from these evidences, the prosecution has been able to prove the occurrence that the deceased was struck by the appellant on his chest by the spear, which got stuck. The witnesses P.W.3, P.W.6 and P.W.7 have identified the spear (Material Exhibit 1) as the weapon of assault. P.W.3 even described the peculiar features of the spear which was used. All the witnesses have stated that the appellant and his wife tried to flee, but, they were apprehended by the villagers. P.W.5 even went to the extent of stating that he caught hold of the appellant and his wife while they were fleeing. P.W.3 even described the peculiar features of the spear which was used. All the witnesses have stated that the appellant and his wife tried to flee, but, they were apprehended by the villagers. P.W.5 even went to the extent of stating that he caught hold of the appellant and his wife while they were fleeing. All these witnesses have stated that the spear remained pierced on the chest and the doctor also found that spear was struck on the chest and the same was only taken out by the doctor while conducting postmortem and was handed over to the police. Doctor also found piercing injury on the chest. It also corroborates the evidence adduced by the prosecution through the different witnesses. 12. So far as the question of interested witnesses are concerned, we find that the deceased and the appellant are brothers. All the witnesses are related to the deceased and the appellant also, being either brother or nephews. The defence has not suggested any enmity between them. There is nothing on record to suggest that these witnesses are in an inimical terms with the appellant. Even it has come in evidence that earlier there was no dispute between the deceased and the appellant. The ground given for false implication of this appellant by the defence is as because the informant wanted to grab the lands of the appellant and in fact was cultivating the lands of the appellant, so he wants to implicate him in this case. This argument cannot be accepted because the witnesses have explained that as there is no one to cultivate the fields of the appellant, the informant is cultivating the said fields. 13. Though the counsel for the appellant have argued that non-examination of the investigating officer has prejudiced the case of the appellant, but, surprisingly, what was the prejudice caused, has not been demonstrated. During course of examination, none of the witnesses were put any question to suggest that there was a contradiction in their statement before the police under section 161 of the Code of Criminal Procedure, 1973. Even from the cross examination either the place of occurrence or the fact that the appellant was caught hold by the villagers was also not contradicted. Thus, we find that the appellant cannot take a plea that he was prejudiced due to non-examination of the investigating officer. 14. Even from the cross examination either the place of occurrence or the fact that the appellant was caught hold by the villagers was also not contradicted. Thus, we find that the appellant cannot take a plea that he was prejudiced due to non-examination of the investigating officer. 14. Thus, from the discussion made above, we find that in this case, the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt. In that view, we find that there is no merit in this appeal. This appeal is, thus, dismissed. Appellant, who is in custody is to serve out the sentence. 15. Before parting with, we find from the records of this case that there were three named accused persons in the first information report. One of them Kakda Hansda, son of this appellant, was not apprehended from the place of occurrence and he fled and he was not put on trial. This appellant and Manjhli Soren were put to trial. Manjhli Soren was granted bail and she was facing trial and was in attendance in Court till examination of P.W.8. Thereafter, Manjhli Soren absconded. Vide order dated 16.10.2008, the case of Manjhli Soren was separated. Trial of this appellant continued and he was convicted. From the records of this case, it does not transpire as to whether any separate record was at all opened in respect of Manjhli Soren or not. It is also not clear whether at a later stage Manjhli Soren was apprehended and was put to trial again. Thus, we direct the learned Trial Court to take all possible steps to procure attendance of Manjhli Soren and to conclude her trial, if she has already not been apprehended and put to trial. If she is put on trial after her apprehension, it is not necessary for the prosecution again to examine P.W.1 to P.W.8, as she was already present in Court during trial when these witnesses were examined. 16. Since this is a Jail Appeal, Mr. Lalan Kumar Singh was appointed Amicus Curiae to assist this Court. We record here that Mr. Lalan Kumar Singh, learned amicus curiae has very ably assisted this Court. The Secretary, High Court Legal Services Committee is directed to make the payment of the prescribed remuneration to the learned amicus curiae for his able assistance. Lalan Kumar Singh was appointed Amicus Curiae to assist this Court. We record here that Mr. Lalan Kumar Singh, learned amicus curiae has very ably assisted this Court. The Secretary, High Court Legal Services Committee is directed to make the payment of the prescribed remuneration to the learned amicus curiae for his able assistance. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 17. Let the Lower Court Records be sent back forthwith to the learned Trial Court along with a copy of this Judgment. Harish Chandra Mishra, J. - I agree.