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2017 DIGILAW 2049 (JHR)

Sahru Singh v. State of Jharkhand

2017-11-28

ANIL KUMAR CHOUDHARY, HARISH CHANDRA MISHRA

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JUDGMENT : H.C. Mishra, J. Heard learned amicus curiae, appointed by the Court for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the judgment of conviction dated 23rd June 2009 and Order of sentence dated 25th June, 2009, passed by the learned Additional Sessions Judge, FTC, Simdega, in S.T. No. 82 of 2005, whereby, the sole appellant has been found guilty and convicted for the offence under Sections 302, and 307 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- as consolidated punishment for both the offences under Sections 302 and 307 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the fardbeyan of one Shiridayal Singh, recorded on 1.6.2005 at about 7:00 a.m. in the morning, at village Koromia Balsera, P.S. Thethaitanger, District Simdega, stating that on 31.5.2005 at about 5:00 p.m., he was wish his family in his house and his cousin Jagarnath Singh (deceased) was cutting wood in the courtyard. In the meantime, the accused Sahru Singh came armed with axe and started abusing Jagarnath Singh and threatening that he shall kill all. Jagarnath tried to flee away, but the accused Sahru assaulted him by tangi on his head, causing bleeding injury and Jagarnath fell down. Thereafter, Sahru Singh chased the informant and his wife Rukmini Devi for assaulting them and when they tried to flee away, he assaulted Rukmini Devi by axe and the informant was bitten by teeth by the accused and when the villagers assembled, he fled away. The deceased died at the spot. On the basis of the fardbeyan, The thaitanger P.S. Case No. 23 of 2005, corresponding to G.R. No. 164 of 2005 was instituted against the accused for the offences under Sections 341, 323, 324, 307, 302 and 504 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Sections 302, 307 and 324 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 5. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Sections 302, 307 and 324 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, the prosecution has examined 11 witnesses including the I.O., and the Doctor who had conducted the post-mortem examination on the dead body of the deceased. The defence has net examined any witness in the case. 6. PW-6 Shiridayal Singh is the informant in the case. This witness has stated that the occurrence had taken place one year ago on a Monday. The occurrence had taken place in the evening before the sunset. He was in its courtyard and Jagarnath Singh was also sitting in the courtyard. Sahru Singh came there and without any provocation, he assaulted Jagarnath Singh by tangi on his head, due to which Jagarnath Singh died at the spot. His wife tried to save Jagarnath Singh, whereupon Sahru assaulted her also by the wooden side of the tangi on her head causing injury on her head. When this witness tried to save them, Sahru injured him biting by teeth. Upon raising alarm, the accused fled away. He has identified the accused in the Court. He has stated that the police came to the place of occurrence and recorded his fardbeyan and finding the same to be true, he put his signature thereon. He has identified his signature on the fardbeyan, which was marked Ext. 4. He has also stated that the police prepared inquest report of the dead body at the place of occurrence itself in the carbon process and he has identified his signature on the same also, which was marked Ext. 2/1. In his cross-examination, this witness has stated that the accused is his cousin, and there was no enmity between the parties. He has denied the knowledge that the accused was getting fits of mental illness. He has also stated in his cross-examination that he had not seen the accused making the assault, as he was preparing tobacco at the time of occurrence. He has denied the suggestion to have given false evidence. 7. He has denied the knowledge that the accused was getting fits of mental illness. He has also stated in his cross-examination that he had not seen the accused making the assault, as he was preparing tobacco at the time of occurrence. He has denied the suggestion to have given false evidence. 7. PW-3 is Smt. Rukmini Devi, who is the wife of the informant and the other injured in the occurrence. This witness has supported the prosecution case stating that the occurrence had taken place on a Monday evening at about 5 p.m. She was in the house and Jagarnath Singh was also sitting there after cutting wood. In the meantime, Sahru Singh came there and he took up the axe, by which Jagarnath Singh was cutting the wood and assaulted Jagarnath Singh on his head by the axe. This witness tried to save her, when the accused assaulted her also by the axe causing injury on her head. She has stated that she was assaulted by the wooden portion of the axe. She has stated that when the informant tried to save her, Sahru Singh injured him also by biting him and thereafter, he fled away from the place of occurrence. Jagarnath Singh died at the spot. This witness has also identified the accused in the Court. In her cross-examination, this witness has stated that she had not seen when the first assault was made on the deceased, rather she had seen when the second assault was made on the deceased and in the meantime, she went there and she was also assaulted. She has also denied the knowledge that the accused used to get the fits of mental illness. She has also stated that in her knowledge, there was no dispute between the parties. She has denied the suggestion to have given the false evidence. 8. PW-1 Keshwar Singh, PW-2 Nirmal Singh, PW-7 Ghuran Singh, PW-9 Smt. Ratni Devi, wife of the deceased and PW-10 Anjani Devi, the daughter of the deceased, are not the eyewitnesses to the occurrence, but hearing about the occurrence, they came to the place of occurrence and saw the dead body. They have also supported the prosecution case as hearsay witnesses. PW-10 Anjani Devi is also a witnesses to the fardbeyan of the informant and she has identified her signature on the fardbeyan, which was marked Ext. 4/2. They have also supported the prosecution case as hearsay witnesses. PW-10 Anjani Devi is also a witnesses to the fardbeyan of the informant and she has identified her signature on the fardbeyan, which was marked Ext. 4/2. She has also denied the knowledge that the accused used to get the fits of mental illness. PW-7 Ghuran Singh also is a witnesses to the fardbeyan and he has identified his signature on the fardbeyan, which was marked Ext. 4/1. PW-1 Keshwar Singh and PW-2 Nirmal Singh are also the witnesses to the seizure of the bloodstained axe from the place of occurrence and they identified their signatures on the seizure list, which were marked Exts. 1 and 1/1 respectively. PW-4 Dubraj Singh is the witness to the inquest report and he has identified his signature on the inquest report, which was marked Ext. 2. 9. PW-8 Mangleshwar Singh had stated that after hearing about the occurrence, he reached to the place of occurrence and he found the accused apprehended by the villagers. 10. PW-5 Dr. Sakil Ahmad had conducted the post-mortem examination on the dead body of the deceased on 1.6.2005 at 1:30 p.m., and had found the following ante-mortem injuries on the dead body:- External Injury : (i) Incised wound 3" x " skull cavity deep over temporal bone over left side parallel to the left ear start from 2" above to upper part of external Pinna. (ii) Incised wound 3" x " x skull cavity deep over occipital bone, part of brain matter came outside. Internal Examination : Blood was present in skull cavity, fracture of left temporal occipital bones. Brain meninges trachea larynxes including all viscera were pale. He has stated that the death was caused due to haemorrhage and shock due to the above mentioned injuries. He has identified the post-mortem report to be in his pen and signature, which was marked Ext. 3. This witness was, however, not cross-examined, as in spite of repeated calls no one appeared on behalf of the defence to cross-examine him and hence, he was discharged. 11. P.W.11 Kapildeo Prasad Keshari is the I.O. of the case. This witness has stated that on 1.6.2005, he was posted as Officer-Incharge of Thethaitangar police station and about 5:00 a.m. in the morning, he got the rumour that someone was murdered in village Koromia Balsera. 11. P.W.11 Kapildeo Prasad Keshari is the I.O. of the case. This witness has stated that on 1.6.2005, he was posted as Officer-Incharge of Thethaitangar police station and about 5:00 a.m. in the morning, he got the rumour that someone was murdered in village Koromia Balsera. The Sanha entry was made about that information and he came to the place of occurrence along with the police party, where he recorded the fardbeyan of the informant Shiridayal Singh. He has proved the fardbeyan to be in his pen and signature, which was marked Ext. 5. He has also proved the endorsements on the fardbeyan, which were marked Exts. 5/1 and 5/2. He has stated that he recorded the restatement of the informant and he has also given the details of the place of occurrence, where, he found the - dead body of the deceased. He has stated that he recovered bloodstained axe from the place of occurrence and in the presence of the witnesses, prepared the seizure list, which, he has proved and the same was marked Ext. 6. He also prepared the inquest report of the dead body of the deceased, which he proved and the same was marked Ext. 7. He also got the memo for the injury reports of injured Shiridayal Singh and Rukmini Devi, prepared, which lie has identified and the same were marked Exts. 8 and 8/1. He proved the formal FIR, which was marked Ext. 9. He recorded the statements of the witnesses, arrested the accused, received the post-mortem report, and upon completion of the investigation, he submitted the charge-sheet in the case. In his cross-examination, this witness has stated that there was no evidence before him that the accused had committed offence in the fits of mental illness. In course of apprehension of the accused by the villagers, he was injured. This witness has denied the suggestion of making faulty investigation. 12. The statement of the accused was recorded under Section 313 of the Cr.P.C, wherein, he has denied the evidence against him. Though, in his statement, he has stated that he would adduce evidence, but no defence evidence was adduced by the appellant. 13. This witness has denied the suggestion of making faulty investigation. 12. The statement of the accused was recorded under Section 313 of the Cr.P.C, wherein, he has denied the evidence against him. Though, in his statement, he has stated that he would adduce evidence, but no defence evidence was adduced by the appellant. 13. Learned amicus curiae for the appellant has submitted that the impugned judgment of conviction and order of sentence passed by the Court below cannot be sustained in the eyes of law, in as much as, there are discrepancies in the evidence on record. He has submitted that though, it is stated in the fardbeyan that the accused came armed with tangi, but the evidence of PW-3 Smt. Rukmini Devi would show that the tangi, kept in the courtyard was used by the accused. Learned counsel has also tried to submit that the accused used to get fits of mental illness, but it is admitted by the learned counsel that there is no other material to substantiate this fact. Even the I.O., in his cross-examination, has clearly stated that he did not get any evidence that the accused was getting fits of mental illness. Learned amicus curiae, however, tried to take plea of unsoundness of mind of the accused, but there is nothing on record to support his contention. 14. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by the two injured witnesses, who are PW-3 Smt. Rukmini Devi and PW-6 Shiridayal Singh, who are the eye-witnesses to the occurrence. The other witnesses, have also supported the case as hearsay witnesses, and have also stated that it was the accused, who had assaulted the deceased and injured the informant and his wife and even PW-8 Mangleshwar Singh has stated that when he came to the place of occurrence, he found that the accused was apprehended by the villagers. Learned counsel submitted that the ocular evidence of witnesses is fully supported by the medical evidence of PW-5 Dr. Sakil Ahmad, who had found two incised injuries on the head of the deceased, which were sufficient to cause death in the normal course. Learned counsel, accordingly, submitted that the prosecution has been able to bring home charge against the accused appellant beyond all reasonable doubts. 15. Sakil Ahmad, who had found two incised injuries on the head of the deceased, which were sufficient to cause death in the normal course. Learned counsel, accordingly, submitted that the prosecution has been able to bring home charge against the accused appellant beyond all reasonable doubts. 15. Having heard teamed counsels for both the sides and upon going through the record, we find that the evidence of the injured eye-witnesses, as also of the hearsay witnesses, lead only to one irresistible conclusion that the accused Sahru Singh had assaulted the deceased Jagarnath Singh by tangi without any provocation. The assault was also repeated and the deceased died at the spot. Though, these witnesses were put to cross-examination, but nothing could be taken in their cross-examination so as to discredit their testimony. Though the witnesses have stated that the informant and his wife were also assaulted and injured by the accused, and even the 1.0. has stated that both these persons were injured, but we find from the record that the Doctor treating these witnesses, has not been examined in the case and the injury reports have not been proved, though only the memo issued by the Investigating Officer have been proved in this case. As such there is no evidence on record about the nature of the injuries on these injureds. The ocular evidence of the witnesses about the murder of the deceased is fully supported by the medical evidence of PW-5 Dr. Sakil Ahmad, and even the weapon of the offence, i.e., the bloodstained axe was recovered from the place of occurrence itself. As such, we are of the considered view that the prosecution has been able to bring home charge against the accused appellant beyond all reasonable doubts for the offence under Section 302 of the Indian Penal Code. We, however, find that in view of the fact that the Doctor treating the injureds, has not been examined and the injury reports have not been proved in the case. As such, the conviction of the appellant accused for the offence under Section 307 of the Indian Penal Code cannot be sustained in the eyes of law. We, however, find that in view of the fact that the Doctor treating the injureds, has not been examined and the injury reports have not been proved in the case. As such, the conviction of the appellant accused for the offence under Section 307 of the Indian Penal Code cannot be sustained in the eyes of law. However, in view of the fact that the evidence on record would show that the an injured was assaulted by the handle of the axe and the other was injured by biting, the offence is made out against the accused under Section 324 of the Indian Penal Code. Accordingly, the conviction of the appellant from Section 307 of the Indian Penal Code is hereby, converted to the offence under Section 324 of the Indian Penal Code. 16. Except for the above, we do not find any illegality in the impugned judgment of conviction dated 23rd June, 2009 and Order of sentence dated 25th June, 2009, passed by the learned Additional Sessions Judge, FTC, Simdega, in S.T. No. 82 of 2005, convicting and sentencing the appellant Sahru Singh for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. Though we are altering the conviction of the appellant from Section 307 of the Indian Penal Code to Section 324 of the Indian Penal Code, we find that the appellant is already in custody throughout, undergoing the sentence and as such, no separate sentence is required to be passed for the same. 17. Before parting with this judgment we may record that we have been given able assistance by learned amicus curiae Sri Pradeep Kumar Deomani. Accordingly, we direct the Secretary, High Court Legal Services Committee, to make the payment of prescribed remuneration to the learned amicus curiae. Let a copy of this judgment we sent to the Secretary, High Court Legal Services Committee, for the needful. 18. We do not find any merit in this appeal and the same is accordingly dismissed with modification as stated above. Let the lower Court Records be sent back forthwith to the Court concerned, along with a copy of this judgment. Appeal dismissed.