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2017 DIGILAW 1813 (JHR)

Khemlal Sao v. State of Jharkhand

2017-10-30

HARISH CHANDRA MISHRA, RATNAKER BHENGRA

body2017
JUDGMENT : Heard learned Counsel for the appellant and learned counsel for the State. 2. This appeal is directed against the Judgment of conviction and Order of sentence dated 28.1.2009 passed by the learned 4th Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 48 of 2005, whereby the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The appellant is the son of the deceased and the prosecution case was instituted on the basis of the fardbeyan of Most. Mungiya Devi, the mother of the appellant, recorded at Gola Police Station on 3.9.2004 at about 11:05 hours, wherein she stated that her husband late Mallu Sao was an employee of CCL and had retired four years ago. They had two sons and three daughters, and all of them were married. After the retirement of her husband, her eldest son Khemlal Sao, who is the accused in the case, used to demand money from his father. On 3.9.2004, at about 9:30 AM, the accused was demanding money from his father and when the same was denied, he assaulted his father by tabali (a sharp cutting weapon), causing injuries on his neck. The accused made another assault by the same weapon, causing injury on the shoulder of his father. When the younger son of the informant tried to save his father, he was also assaulted by this accused, but he could manage to save himself. Her younger son Shyamlal Sao, villagers and the Chaukidar of the village apprehended the accused Khemlal Sao and they were being brought to the Police Station, when in the way, her husband died. Alleging that the accused Khemlal Sao had committed the murder of his father, he was produced in the Police Station. On the basis of the fardbeyan, Gola P.S. Case No. 50 of 2004, corresponding to G.R. No. 2121 of 2004 was instituted against the accused Khemlal Sao for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, chargesheet was submitted against the accused. 4. On the basis of the fardbeyan, Gola P.S. Case No. 50 of 2004, corresponding to G.R. No. 2121 of 2004 was instituted against the accused Khemlal Sao for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, chargesheet was submitted against the accused. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial, ten witnesses were examined by the prosecution, including the IOs and the Doctor, who had conducted the post mortem examination on the dead body of the deceased. 6. PW-3-Most. Mungiya Devi is the informant of the case, who is also the wife of the deceased and mother of the accused Khemlal Sao. She has stated that the occurrence had taken place two years ago at about 9:30 AM in the morning on a Friday. Her husband was an employee of CCL and after his retirement, he returned to his village. Out of his retiral benefits, he gave Rs. 50,000/- each to both of his sons and Rs. 30,000/- each to his three daughters. She has stated that her elder son Shyamlal Sao (the name appears to be wrongly recorded, as the evidence shows that Shyamlal Sao is her younger son) again started demanding money from his father, whereupon, her husband told that now he had no money to give him. This witness has stated that thereupon, her elder son brought a tabali from the house and assaulted her husband on his neck. Her husband fell down. Thereafter her younger son Shyamlal Sao came and the accused also tried to assault him by tabali, but Shyamlal managed to save himself. The persons, who were there, reached the place of occurrence and thereafter she was going to the Police Station along with her husband and both the sons and the villagers, but in the way her husband died. Her fardbeyan was recorded at the Police Station, whereupon, she gave her thumb impression and her son Shyamlal put his signature. The police also seized the tabali with broken handle, and prepared the seizure list, whereupon also she put her thumb impression. She has identified the accused in the Court. Her fardbeyan was recorded at the Police Station, whereupon, she gave her thumb impression and her son Shyamlal put his signature. The police also seized the tabali with broken handle, and prepared the seizure list, whereupon also she put her thumb impression. She has identified the accused in the Court. In her cross-examination, this witness has denied the suggestion that after his retirement, her husband had given the entire money to Shyamlal and no money was given to Khemlal. She has also denied the suggestion that it was her younger son, who had tried to assault his elder brother, but the assault missed and hit her husband, due to which, he died. She has also denied the suggestion that the accused Khemlal had not assaulted her husband. 7. PW-1-Shyamlal Sao is the younger son of the deceased and he is also the brother of the accused. This witness has stated that the occurrence took place on 3.9.2004. His father was an employee in CCL and after his retirement, his father gave Rs. 50,000/- each to both the brothers. Even after getting the money, his elder brother Khemlal was demanding more money from the father, which could not be given, as no money was left. On the date of occurrence, Khemlal Sao assaulted his father by tabali on his neck and on left hand. This witness went to save his father and the accused tried to assault him also, but he could save himself. The tabali, by which the father was assaulted, fell on the ground and was broken. With the help of the persons nearby, he apprehended Khemlal and he was brought to Police Station and was produced before the police. This witness has stated that his father was taken to hospital, who died in the way to the hospital. He has further stated that the fardbeyan of his mother was recorded by the police at the hospital, whereupon, she put her thumb impression and this witness put his signature. He has identified his signature on the fardbeyan, which was marked Exhibit-1. He has also identified his signatures on inquest report of the dead body of his father and the seizure list of seizing the weapon of the offence, which were marked Exhibits-2 and 3. He has identified the accused in the Court. He has identified his signature on the fardbeyan, which was marked Exhibit-1. He has also identified his signatures on inquest report of the dead body of his father and the seizure list of seizing the weapon of the offence, which were marked Exhibits-2 and 3. He has identified the accused in the Court. There is nothing of much importance in the cross-examination of this witness, except the denial of the suggestion that no money was given to the accused by the father and his father was living with this witness enjoying the entire money, due to which, there was dispute between them and he had assaulted his elder brother, which was intervened by his father, due to which, he was injured and he died. He has also denied the suggestion to have given the false evidence. 8. PW-2-Geeta Devi is the wife of Shyamlal Sao and daughter-in-law of the deceased, and PW-6-Uma Devi is the daughter of the deceased and both these witnesses have also supported the prosecution case as aforesaid, as eyewitnesses to the occurrence, stating that it was this accused, who had assaulted his father by tabali, due the fact that his demand of more money was not fulfilled. They have identified the accused in the Court. There is nothing in their cross-examinations to discredit their testimony. 9. PW-4-Manindar Chakravorty, is the co-villager and he had reached the place of occurrence, soon after the occurrence. PW-5 Birbal Mahto is also a co-villager, who had deposed as eyewitness to the occurrence. Both these witnesses have stated that it was the accused Khemlal Sao, who had committed the murder of his father. There is nothing of much importance in the cross-examinations of both these witnesses and there is nothing therein to discredit their testimony. 10. PW-10 is Chaukidar Ugan Karmali, who has stated that the occurrence had taken place on 3.9.2004 and upon hearing the noise, he went to the place of occurrence and saw that the deceased Mallu Sao was killed. He was informed that Khemlal Sao had assaulted his father by tabali, and while being brought to the hospital, the deceased died. Khemlal Sao was apprehended and produced in the Police Station. He has also produced the tabali in the Court, which was marked Material Exhibit-I. In his cross-examination, this witness has stated that he could not say whether the tabali was rusted, or blood stained. Khemlal Sao was apprehended and produced in the Police Station. He has also produced the tabali in the Court, which was marked Material Exhibit-I. In his cross-examination, this witness has stated that he could not say whether the tabali was rusted, or blood stained. He has stated that upon hearing the noise, he had visited the place of occurrence. 11. PW-8-Dr. Pranay Mohan was posted as Civil Assistant Surgeon in Sadar Hospital, Hazaribagh, who had conducted the post mortem examination on the dead body of the deceased on 3.9.2004 at about 4:50 PM, and had found the following injuries on the dead body:- Incised wound at left shoulder region 2½" below tip of shoulder size 7" x 3" x 4" in two pieces excepting fold of skin at axilla posteriorly. Incised wound left ear from pinna to tragus upto 3/4" below tragus and from there to posterior part of neck at midline 1" above occipital region. Size 4½" x 3" x bone deep. On internal Examination:- Occipital bone fractured in two pieces. Membranes of brain were ruptured on posterior part. Brain matter was damaged at occipital region with haematoma. On examination of heart-Both chamber empty. Other visceras like lung, liver, spleen, Both kidneys were pale. This witness has stated that the cause of death was due to haemorrhage and shock due to injury on the occipital region. He has also stated that 12 to 36 hours had elapsed since death. He has identified the post mortem report to be in his pen and signature, which was marked as Exhibit-8. 12. PW-7 Sudama Choudhary is the main I.O. of the case. On 3.9.2004, he was posted as Officer Incharge of Gola Police Station, on which date he had recorded the fardbeyan of Most. Mungia Devi, which he has identified to be in his pen and signature, and the same was marked Exhibit-4. He has stated that he sent the dead body for post mortem examination, after preparing the inquest report, which he has proved and the same was marked Exhibit-5. He has stated that the accused was brought to the Police Station by the villagers and the Chaukidar and he was arrested at the Police Station itself. He visited the place of occurrence and he has given the description of the place of occurrence. He has stated that the accused was brought to the Police Station by the villagers and the Chaukidar and he was arrested at the Police Station itself. He visited the place of occurrence and he has given the description of the place of occurrence. He has also stated that at the place of occurrence, Shyamlal Sao, the son of the deceased, produced the tabali with the broken handle, which was seized and the seizure list was prepared. He has proved the seizure list, which was marked Exhibit-6. He recorded the statements of the witnesses. He has also proved the formal FIR, which was marked Exhibit-7. He has stated that he handed over the charge of the investigation due to his transfer. He has identified the accused in the Court. In his cross-examination, he has stated that he had seen the dead body for the first time at the Police Station itself and the accused was also produced at the Police Station. He has stated that he did not collect the bloodstains from the place of occurrence as they could not be collected. He has also stated that the bloodstained cloth of the deceased was not seized by him and the tabali was not sent to the fingerprint expert. He has denied the suggestion to have made faulty investigation. 13. PW-9-Daud Kiro is another I.O. of the case, who had received the post mortem report and had submitted the charge-sheet. 14. The statement of the accused was recorded under Section 313 of the Cr.P.C., where he denied the evidence against him. 15. On the basis of the aforesaid evidence on record, the accused appellant was convicted and sentenced by the Trial Court below as aforesaid. 16. Learned counsel for the appellant has submitted the impugned judgment of conviction and order of sentence cannot be sustained in the eyes of law, in as much as, the prosecution has not been able to bring home charge against the appellant beyond all reasonable doubts. It is submitted that independent witnesses had not been examined in the case and the post mortem report of the deceased is absolutely doubtful, in as much as, the occurrence had taken place on 3.9.2004 at about 9:30 AM, where as the post mortem was conducted on the same day at about 4:30 PM, but the Doctor had deposed that the time elapsed since then was 12 to 36 hours. Learned counsel submits that this makes the entire prosecution case very doubtful, as the time of occurrence gets disputed by the medical evidence. Learned counsel has also submitted that there are other discrepancies also in the evidences of the witnesses, in as much as, PW-1 Shaymlal Sao has stated that after the occurrence, the deceased was taken to the hospital, where, the fardbeyan of his mother was recorded, but the fact is that, that the fardbeyan was recorded at the Police Station, as is apparent from the FIR, as also deposed by PW-3 Most. Mungia Devi as well as the I.O. PW-7 Sudama Choudhary. Learned counsel also submitted that the informant PW-3 Most. Mungia Devi has named the younger son Shyamlal Sao to have assaulted the deceased and this also makes the prosecution case doubtful. Learned counsel accordingly, submitted that the impugned judgment of conviction and order of sentence cannot be sustained in the eyes of law and the accused appellant ought to have been given at least the benefits of doubt. 17. Learned counsel for the State on the other hand has opposed the prayer and submitted that PW-1 Shyamlal Sao, PW-2 Geeta Devi, PW-3 Most. Mungia Devi, PW-5 Birbal Mahto and PW-6 Uma Devi are the eyewitnesses to the occurrence and they have fully supported the prosecution case, stating that it was this accused, who had assaulted his father by tabali. The ocular evidence of these witnesses are fully corroborated by the medical evidence of PW-8-Dr. Pranay Mohan and the post mortem report proved by him as Exhibit-8. Learned counsel accordingly, submitted that the prosecution has been able to bring home charge against the appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence. 18. Having heard learned counsels for both the sides and upon going through the record, we find that the eyewitnesses to the occurrence, particularly the family members, i.e., PW-1-Shyamlal Sao, PW-2-Geeta Devi, PW-3-Most. Mungia Devi and PW-6-Uma Devi, are the natural eyewitnesses, whose presence in the house cannot be doubted. All these witnesses including the mother of the accused, PW-3-Most. Mungia Devi have stated in unequivocal terms that it was this accused, who had assaulted his father by sharp cutting weapon causing his death. Mungia Devi and PW-6-Uma Devi, are the natural eyewitnesses, whose presence in the house cannot be doubted. All these witnesses including the mother of the accused, PW-3-Most. Mungia Devi have stated in unequivocal terms that it was this accused, who had assaulted his father by sharp cutting weapon causing his death. The veracity of these witnesses cannot be doubted, particularly, in view of the fact that the prosecution case is fully supported, even by the mother of the accused. The ocular evidence of these witnesses are fully corroborated by medical evidence of PW-8-Dr. Pranay Mohan and the post mortem report proved by him as Exhibit-8, whidi shows that injuries caused by sharp cutting weapon, were found on the deceased, which proved fatal. Though PW-8-Dr. Pranay Mohan has stated that the time elapsed since death was 12 to 36 hours, but in our considered view, this miscalculation of time by the Doctor is not fatal to the prosecution case, in view of the depositions of the eyewitnesses, including the mother of the accused appellant. The mistake by the PW-3 Most. Mungia Devi, in naming the accused, is also of no consequence, as she has identified the accused in the Court. We are of the considered view that the prosecution has been able to bring home charge against the appellant beyond all reasonable doubts and there is no illegality in the impugned judgment of conviction and order of sentence. 19. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 28.1.2009, passed by the learned 4th Additional Sessions Judge, Hazaribagh, in S.T. No. 48 of 2005, convicting and sentencing the appellant Khemlal Sao for the offence under Section 302 of the Indian Penal Code, which we, hereby, affirm. The accused is already in custody and undergoing the sentence. 20. Before parting with this Judgment, we must record that we have been ably assisted by the learned counsel for the appellant Sri Rishi Pallav, who is a panel advocate of High Court Legal Services Committee. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned counsel. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee for the needful. 21. There is no merit in this appeal and the same is accordingly, dismissed. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned counsel. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee for the needful. 21. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.