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2017 DIGILAW 1702 (JHR)

Tejo Sao v. State Of Jharkhand

2017-09-22

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT Ananda Sen, J. (CAV) - This appeal has been filed by Tejo Sao, son of late Nemdhari Sao, challenging the Judgment of conviction dated 30.03.2006 and Order of sentence dated 31.03.2006 passed by learned Additional Sessions Judge, (F.T.C.-V), Hazaribagh, in Sessions Trial No. 486 of 2004, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine further sentenced to undergo simple imprisonment for 2 months. 2. The prosecution case is based on the fardbeyan of Kishori Prasad son of Nemdhari Sao recorded on 15.02.2002 at about 10.30 a.m. at Primary Health Center, Barhi stating therein that on the same day at about 9.a.m in the morning his wife was cooking meal in the Verandah of her house. In the meantime his brother Tejo Sao started quarreling on the pretext of partitioning properties. The wife of the informant told him that they had constructed the house after taking loan from the Bank, thus they will not give share of the house. The brother of the informant, Tejo Sao, took an Axe, which was cleverly concealed by him, and chased this informant who fled towards the road. Then getting an opportunity, Tejo Sao with Tangi assaulted the wife of this informant with intention to kill her. He struck her from behind and injured her. The wife of this informant started screaming and fell down. Before this informant could reach there, this appellant fled with the Tangi to the southern side. The informant found his wife unconscious. She was taken to the hospital where the doctor declared her dead. The informant alleged that in a preplanned manner this appellant has committed murder of the deceased. 3. The police, after recording the fardbeyan, registered Barhi P.S. Case No. 29 of 2002 under Section 302 of the Indian Penal Code. After investigation, charge-sheet was filed under Section 302 of the Indian Penal Code, against the appellant. The Court below after taking cognizance committed the case to the Court of Session. 4. On 17.01.2005 charge was framed against this appellant, for committing an offence under Section 302 of the Indian Penal Code. The appellant pleaded " not guilty", and claimed to be tried. 5. The Court below after taking cognizance committed the case to the Court of Session. 4. On 17.01.2005 charge was framed against this appellant, for committing an offence under Section 302 of the Indian Penal Code. The appellant pleaded " not guilty", and claimed to be tried. 5. To prove the case of the prosecution altogether 5 witnesses were examined. P.W.1 is Premlata. P.W.2 is Rabi Prabha. P.W.3 is Kishori Pd. P.W.4 is Dr. Chandra Prakash Choudhary. P.W.5 is Ramlagan Singh. 6. After closure of the evidence, the statement of accused-appellant was recorded under section 313 of the Code of Criminal Procedure, 1973. The defence had also adduced two witnesses in support of his innocence. 7. The trial Court after considering the materials on record and after hearing the arguments of the parties convicted the appellant for committing an offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. 8. Aggrieved by the said judgment of conviction and order of sentence, the appellant has preferred this appeal. 9. Mrs. Priya Shresth, Amicus Curiae, appearing on behalf of the appellant submits that there is a long delay in transmitting the F.I.R. to the Court which is fatal for the prosecution. She submits that the F.I.R. was lodged on 15.02.2002, but it was received by the Court only on 18.02.2002 which is apparent from the endorsement made by the Chief Judicial Magistrate. She submits that there is no explanation for the said delay. She submits that the entire case hinges upon the evidence of P.W. 1, P.W. 2 and P.W. 3 who are the daughters and husband of the deceased, and are the interested witnesses. She submits that on the basis of the interested witnesses the appellant cannot be convicted. It is further submitted that the defence witness nos. 1 and 2 who are, the mother and brother of this appellant and the informant, has narrated the correct version about the occurrence and the court below without assigning any reasons discarded the same. She further stated that the daughters i.e. P.W. 1, P.W.2 and P.W.3 of the deceased are tutored witnesses and thus, cannot be relied upon. It is stated that the alleged weapon of assault was not seized. She further stated that the daughters i.e. P.W. 1, P.W.2 and P.W.3 of the deceased are tutored witnesses and thus, cannot be relied upon. It is stated that the alleged weapon of assault was not seized. She stated that the story about the demand of partition has been falsified by the Defence Witnesses and thus, when the genesis of the occurrence has been demolished, the appellant could not have been convicted. 10. On the other hand, the learned Additional Public Prosecutor submits that there are three eye witnesses to the said occurrence. The evidence of the three eye witnesses are cogent and has not been shaken by the defence. It is also stated that the evidence of these eye witnesses is also corroborated by the evidence of the doctor, who had conducted the postmortem. It is stated that the motive has also been proved by the prosecution, thus, the appellant is not entitled to get any relief in this case. 11. As stated earlier, 5 prosecution witness have been examined in this case. 12. P.W.1 Premlata, is the daughter of the deceased. She states that on the date of occurrence she was there with her mother who was preparing Roti. She stated that her father, elder sister-Ravi Prabha and grand father Shri Nemdhari Sao were also there. The accused came, cleverly concealing an Axe and demanded partition of the house for which an altercation started between the informant and the appellant. The mother of this witness (deceased) told that there cannot be any share is the house as they have constructed the house by taking loan from Bank. Upon this, the deceased with the said Axe chased the informant who ran a few steps. Thereafter, the appellant turned back and struck the deceased with the Axe from behind on her head as a result of which she fell down. Then the appellant also fled towards the Southern side. This witness identified the appellant in Court. In her cross-examination she stated that they are separate in mess. She does not know whether the land has been partitioned or not amongst them. She stated that her father are five brothers and she disclosed the names of all of them. She stated that her father resides separately. She stated that except this appellant, they had no enmity with other uncles. She does not know whether the land has been partitioned or not amongst them. She stated that her father are five brothers and she disclosed the names of all of them. She stated that her father resides separately. She stated that except this appellant, they had no enmity with other uncles. She stated that her mother was preparing Roti and the assault had taken place at the said point. She stated that the assault was made by Tangi on the backside of the head. She stated that there was not much hue and cry when the appellant was quarreling with the informant. She stated that blood stains were there at the place of occurrence. She stated that she has written down the date of occurrence. 13. P.W.2 Rabi Prabha is the another daughter of the deceased and eye witness. She stated that she was there in the Verandha with her mother and sister. Their father was standing outside the Verandha and her mother was preparing Roti. She also stated that her uncle demanded share in the house which was denied on the ground that the house was constructed by the informant after taking loan. On such refusal her father was chased and when he escaped, the appellant assaulted her mother on the head by an Axe. She stated that her mother was taken to the hospital with the help of her father, where the doctor declared her dead. She stated that the property of her grand-father has not been partitioned, but they are separate in mess. She stated that her father had taken loan and she knows the said fact. She stated that Rs. 5 lacs loan was taken from the Bank of India and she had seen the document. She reiterated her statement which was recorded under section 161 of the Cr. P.C., 1973 by the police by stating that she had narrated the occurrence to the police. She stated that the police had inspected the place of occurrence. She further stated that only one blow was given by the Axe. She stated that when hue and cry was made several persons of the locality gathered. 14. P.W.3 Kishori Prasad is the informant who supported his statement in the F.I.R. He stated that he was present at the place of occurrence along with his daughter and wife, who was preparing Roti. She stated that when hue and cry was made several persons of the locality gathered. 14. P.W.3 Kishori Prasad is the informant who supported his statement in the F.I.R. He stated that he was present at the place of occurrence along with his daughter and wife, who was preparing Roti. The accused came and demanded partition of the house to which they said that they have taken loan for construction of the house so the same will not be partitioned. He stated that the appellant threatened the informant of dire consequences, if share in house is not given. The wife of this informant also objected by saying that they have taken loan so house will not be partitioned. The accused then took an Axe which he had concealed and chased the informant who fled towards the road. The informant then looked back and saw that this appellant had given Axe blow on the head of the deceased from behind. The informant then immediately came near his wife, by that time the appellant fled away. After the appellant assaulted the deceased, she fell down on the ground. The injured was taken to the hospital where she was declared dead. He stated that he went to the police station and recorded the statement and after finding the same to be correct, he put his signature on the fardbeayan. The said signature was marked as Exhibit-1. This witness has stated that his father had expired on 28th August 2004, but his mother is alive. He stated that he had no dispute with his mother. He stated that his father had given statement before the police but the statement of his mother had not been recorded. He stated that he has five brothers and he got no grievances against all other brothers, save and except this appellant. He stated that their property are joint but they are separate in mess. He stated that he had shown the document of loan to the police, but the police did not seize the said papers. He stated that his wife was preparing Roti. He further stated that when he was chased by his brother, he fled 10 to 15 steps. He stated that their property are joint but they are separate in mess. He stated that he had shown the document of loan to the police, but the police did not seize the said papers. He stated that his wife was preparing Roti. He further stated that when he was chased by his brother, he fled 10 to 15 steps. He stated that he had given statement to the police that he went towards the road and thereafter when he turned back, he saw the appellant had assaulted his wife on the head but the police has not written that in the same manner. He stated that the appellant has assaulted once by the Axe. He stated that he does not remember the name of the driver who had driven the jeep while taking the injured to the hospital. He stated that police at first taken his statement in the hospital, but has not written the same, in fact the same was written in the police station. He stated that his wife had not quarreled with any of the neigbhour. He stated that after four months of death of his wife he remarried. He stated that after the occurrence and till the time the injured was taken to the hospital, the mother of this informant did not reach the place. 15. P.W. 4 Dr. Chandra Prakash Choudhary, is the doctor, who had conducted the postmortem of the deceased. He found the following injuries on the person of the deceased. Following is his observation and finding:- "(I) On external examination:- I found eyes open, mouth closed, rigor mortis absent in both upper and lower limbs and thus there is no sign of decomposition of the dead body. Surgical dressing over head was found and so after removal of the dressing, I found non-stiched incised wound 3"X1" x brain deep, occipital bone was cut wound contained fresh blood. On dissection I found following:- lungs intact and pale, heart-both ventricles empty, livers, spleen and kidney-intact and pale, stomach contained mucoid fluid all over, stomach wall-normal, bladder-intact and empty. Uterus-normal. Skull-occipital bone cut and fractured with laceration of brain." In the opinion of the doctor the cause of death is due to hemorrhage and shock. The doctor also opined that the weapon used was heavy sharp cutting weapon may be Tangi(Axe). He proved the postmortem report as Exhibit-2. Uterus-normal. Skull-occipital bone cut and fractured with laceration of brain." In the opinion of the doctor the cause of death is due to hemorrhage and shock. The doctor also opined that the weapon used was heavy sharp cutting weapon may be Tangi(Axe). He proved the postmortem report as Exhibit-2. In his cross-examination at paragraph 9 he stated that if the head of any person is struck with brick then cut injury on the head is not possible. 16. P.W.5 Ramlagan Singh, is the Investigating Officer. He confirmed that the fardbeyan of P.W.3 was recorded at Primary Health Center, Barhi. The fardbeyan which was recorded was exhibited as Exhibit 1. The formal F.I.R. was exhibited as Exhibit-3. This witness had prepared the inquest report which was signed by Sukhdeo Sao and Jago Sao. The said inquest report was exhibited as Exhibit-4. He inspected the place of occurrence and had given details about the same. He stated that he himself carried the fardbeyan to the police station for lodging F.I.R. He stated that the formal F.I.R. was lodged at about 11.45 hours. He stated that he has not made any sketch map of the place of occurrence. He stated that he did not find any cooking pan for preparing Roti, but he found dough of wheat, but he has not stated the same in the case diary. He stated that blood was there which was smeared by steps. He also admitted that he has not recorded the said fact in the case diary. He stated that the informant has not shown the loan document, but had orally mentioned it before him. He stated that none of the villagers came forward to depose by giving an excuse that the dispute is between the brothers. He stated that Premlata did not narrate before him that at the time of occurrence, she was with her mother and elder sister Ravi Prabha. She stated that Ravi Prabha also did not say that Premlata was with her in the Verandha and his father was standing outside the Verandha. He stated that the informant has also not stated before him that he had turned and saw his wife being assaulted by an Axe. 17. As stated earlier, to controvert the allegation against the appellant the defence has also adduced two witnesses, after his statement was recorded under section 313 of the Cr. P.C., 1973 18. He stated that the informant has also not stated before him that he had turned and saw his wife being assaulted by an Axe. 17. As stated earlier, to controvert the allegation against the appellant the defence has also adduced two witnesses, after his statement was recorded under section 313 of the Cr. P.C., 1973 18. D.W.1 Smt. Joba Devi is the mother of this appellant and the informant. She admitted that the appellant has constructed the house after taking loan. She also admitted that the properties were not partitioned. She stated that because of shifting of ladder, a brick had fallen from the roof and struck the head of the deceased, as a result of which the deceased sustained injury and she died in hospital. She stated that this appellant has been falsely implicated in this case. 19. D.W.2 Ishwar Prasad is the brother of this appellant and the informant. He also stated in the same manner that a brick had fallen resulting in injury to the deceased. He stated that he also accompanied the deceased to the hospital. He stated that the property is joint and this appellant had constructed the house after taking loan from the Bank. He stated that none of the houses have been partitioned. He stated that they were not demanding any partition of the house, but they were demanding partition of the land. He denied the involvement of this appellant. 20. Thus, from analyzing the evidence, we find that there are three eye witnesses to the said occurrence. It is P.W.3, the informant from whom the appellant demanded partition of the house. He refused the demand of the appellant, stating that since the house was constructed by them after taking loan, the same would not be partitioned. The appellant became furious and chased P.W.3 with an Axe which he was concealing cleverly. The informant fled a few steps, then the appellant struck on the head of the deceased from behind with the Axe and fled away. This statement is consistent, so far as P.W. 1, P.W. 2 and P.W. 3 are concerned. These witnesses categorically stated that all of them were present at the place of occurrence and father of the informant was also present and have seen the occurrence. 21. Be it mentioned that the father of the appellant died before he could be examined in Court. These witnesses categorically stated that all of them were present at the place of occurrence and father of the informant was also present and have seen the occurrence. 21. Be it mentioned that the father of the appellant died before he could be examined in Court. All these eye witnesses stated that one blow was given with the Axe on the backside of the head, as a result of which the deceased fell down. The reason of the assault, is denial to partition the house on the ground that the informant had constructed the house by taking loan. The fact that the informant had constructed his house by taking loan, has been supported not only by P.W. 1, P.W. 2 and P.W. 3, but also by the defence witnesses. Thus, this fact is proved that the informant has constructed his house by taking loan. Three witnesses P.W. 1, P.W. 2 and P.W. 3 had also stated that the properties have not been partitioned. This fact has also been admitted by the defence witnesses. D.W.2 states that they demanded partition of the lands, but not of the house. This fact suggests that there was a demand of partition by the brothers. Thus, prosecution case to the extent that the house was constructed by this informant after taking loan and there was demand for partition has been proved. 22. Now, on the point of assault, the informant and P.W. 1 and P.W. 2, who are the eye witness, uniformly states that with an Axe, the appellant gave a blow on the head of the deceased. The postmortem report clearly supports the aforesaid version that one blow was given, which injured the deceased. The size of the wound was 3" x1" x brain deep and occipital bone was cut. The scalp was also fractured. The doctor opined that the assault was made by heavy sharp cutting weapon. Axe is definitely a heavy sharp cutting weapon. The defence in their evidence have come up with the story that a brick had fallen from the roof of the house resulting the said injury. This fact has been negated by the doctor who conducted the postmortem. In paragraph 9, he states that if the head of any person is hit with brick then cut injury on head is not possible. Thus, the version of the defence is demolished. This fact has been negated by the doctor who conducted the postmortem. In paragraph 9, he states that if the head of any person is hit with brick then cut injury on head is not possible. Thus, the version of the defence is demolished. The Investigating Officer at the place of occurrence found blood stains and also found dough of wheat. It is the prosecution case that the wife was preparing Roti at the relevant point. Thus, the presence of dough of wheat supports the prosecution case that at the time of occurrence the deceased was preparing Roti. Thus, from the evidence led by the prosecution, this Court is of the opinion that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubts. 23. So far as delay in transmitting the F.I.R. is concerned, we find that the occurrence had taken place on 15.02.2002 and immediately the fardbeyan was recorded and the F.I.R. was lodged. There is no delay in lodging the F.I.R, thus there is no chance of making any improvement in the prosecution case. Delay in transmitting the F.I.R. to the Court is not fatal to the prosecution. The Hon''ble Supreme Court in the case of Balram Singh v. State of Punjab as reported in (2003) 11 SCC 286 has held that when there are credible ocular evidence adduced by the prosecution and it is seen that the evidence of the ocular witnesses is worthy of acceptance, the element of delay in registering a complain, or sending the same to the Jurisdictional Magistrate by itself, would not in any manner, weaken the prosecution case. 24. In this case, we find that there is no delay in lodging or registering the F.I.R. So far as delay in transmitting the F.I.R. to the Court is concerned, we find that the incident had taken place on a Friday and the F.I.R was registered on Friday itself. The same was received by the Court on Monday. Thus, we find that the delay is not fatal for prosecution. 25. From the discussion made above, we hold that no ground is made out by this Court for interfering with the impugned judgment of the trial Court by which the appellant has been convicted. This appeal is thus, dismissed. 26. The Judgment of the trial Court is confirmed. Thus, we find that the delay is not fatal for prosecution. 25. From the discussion made above, we hold that no ground is made out by this Court for interfering with the impugned judgment of the trial Court by which the appellant has been convicted. This appeal is thus, dismissed. 26. The Judgment of the trial Court is confirmed. The appellant who is in custody, is to serve out the rest of sentence. 27. A copy of this judgment and the entire Lower Court records be sent to the Trial Court forthwith. 28. Before parting with the Judgment, it is to be noted that Mrs. Priya Shresth, learned amicus curiae has very ably assisted this Court. The Secretary, High Court Legal Services Committee, is hereby directed to make the payment of the prescribed remuneration to the learned amicus curiae for her able assistance. Let a copy of this judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. H.C. Mishra, J. - I agree.