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Jharkhand High Court · body

2017 DIGILAW 725 (JHR)

Puras Sahu v. State of Jharkhand

2017-04-20

ANANDA SEN, PRADIP KUMAR MOHANTY

body2017
JUDGMENT : Ananda Sen, J. Both these appeals, arising out of the common impugned judgment, were heard together and are being disposed of by this common judgment. 2. Both these appeals are directed against the judgment of conviction and order of sentence dated 27.07.2005 and 29.07.2005 respectively, passed in Sessions Trial No. 152 of 2004, arising out of Karra P.S. Case No. 43 of 2003 (G.R. No. 362/03), whereby all the appellants, having been found guilty for committing offence under Sections 302/34 of the Indian Penal Code, have been convicted and thereby, they were sentenced to undergo imprisonment for life. 3. The case of the prosecution, as per the informant Somani Devi (PW10), is that on 03.08.2003 at about 18.30 hours she, alongwith her husband (deceased) was standing in front of her house when the accused persons namely, Domna Sahu armed with Balua, Basu Sahu armed with Balua, Puras Sahu armed with Sword and Andud @ Anirudh Sahu armed with Sword, came there and attacked her husband. The informant tried to save her husband but she was also assaulted by them and she was dashed as a result of which she fell down and her hearing aid dropped from her ear due to which she could not hear anything. All the four accused persons assaulted her husband with their respective weapons, resulting into his death. The informant raised alarm. On hearing her alarm, Yugeshwar Sahu (PW1), Fulchandra Sahu (PW2) reached at the place of occurrence. The informant could not narrate the reasons as to why this occurrence has taken place. 4. The matter was informed to the police and on the basis of the said written report, Karra P.S. Case No. 43 of 2003 was registered, against the aforesaid named accused persons for committing the offence punishable under Sections 302/34 of the Indian Penal Code. 5. The police investigated the case and on completion of investigation, charge sheet was filed under Section 302/34 of the Indian Penal Code, firstly against Puras Sahu. Subsequently, supplementary charge sheet was filed against Domna Sahu, Basu Sahu and Andud @ Anirudh Sahu. After complying with all the provisions of law, the case was committed to the Court of Sessions for trial. Charges were framed against all the appellants and they were put on trial as they pleaded not guilty of the charges. 6. Subsequently, supplementary charge sheet was filed against Domna Sahu, Basu Sahu and Andud @ Anirudh Sahu. After complying with all the provisions of law, the case was committed to the Court of Sessions for trial. Charges were framed against all the appellants and they were put on trial as they pleaded not guilty of the charges. 6. The prosecution, in order to prove its case, examined altogether 13 witnesses. Out of them, PW1 is Jageshwar Sahu, PW2 is Fulchand Sahu, PW3 is Murlidhar Mishra, PW4 is Krishna Sahu, PW5 is Sarwan Kumar Gupta, PW6 is Dr. Prince Pingwa, PW7 is Jayant Kumar Gupta, PW8 is Arun Chandra Gupta, PW9 is Krishna Murari Gupta, PW10 is Somani Devi the informant, PW11 is Devendra Prasad (SI of Police), PW12 is Chhote Lal Paswan (SI of Police) and PW13 is Natwar Mishra. 7. PW1 Jageshwar Sahu, in his evidence, has stated that on 03.08.2003 at about 01.30 PM he, alongwith Fulchand Sahu (PW2) was walking in the village and when he heard sound of screaming of one lady, they immediately rushed and found that the lady was the wife of one Fulchand, S/o Fakir Chand and the said Fulchand was lying dead and his throat was slit and there was sharp cutting injury on the face of the deceased. The wife of the deceased told them that Domana Sahu, Puras Sahu, Basu Sahu, Anirudh Sahu assaulted her husband by means of Balua and Sword due to which her husband died and after committing murder they fled away. This witness further stated that after fifteen minutes they left the place of occurrence and in the meantime, one Natwar Mishra and Murlidhar Mishra also reached at the place of occurrence. He further stated that in the Garden of the deceased Fulchand, the maternal grandson of the deceased was found crying. In his crossexamination, he submitted that the brother of Fulchand (PW2) is involved in some criminal case and is lodged in Khunti Jail. He further deposed that on the date of occurrence while walking he came near the house of the deceased and was 100 feet away from the house of the deceased, when he heard the cry. He described the location of the house of the deceased and narrated that the dead body was lying in the drain in front of a flour mill. He described the location of the house of the deceased and narrated that the dead body was lying in the drain in front of a flour mill. He further stated that the house of the nephew of the deceased was just in front of the place of occurrence. He further stated that he had stated before the police that the wife of the deceased told him that four accused persons have committed murder of the deceased. He further stated that the relative of the deceased were not found at the place of occurrence. He admitted that he had not taken any step to take out the body of the deceased from the drain. 8. PW2 Fulchand Sahu, in his evidence, has stated that on 03.08.2003 at about 01.30 P.M. he, alongwith Jageshwar Sahu (PW1), was walking in the village and on hearing the sound of cry of a lady, he went and saw that the deceased was lying and his throat was cut by sharp weapon and there was sharp cut injury on the face of the deceased and the blood was oozing out from the body. He further stated that the wife of the deceased (informant) told them that four named accused persons with the help of Baluwa and Sword have assaulted and committed murder of the deceased. He stated that on their hulla, no one turned up but he saw the maternal grandson of the deceased was crying in the garden. He further stated that they were present there at the place of occurrence till evening and the son of the deceased reached there at about 4-5 P.M. In his cross-examination, he admitted that his brother Raj Kumar Sahu is in jail in connection with a case of murder. He stated that due to the death of Dr. Surendra Sahu, Arun Chandra Gupta, Pawan Gupta, Shailendra Nath Sahdeo and Raj Kr Sahu had enmity with the Dr. Surendra Sahu and Raj Kr. Sahu had threatened the said Doctor. He admitted that Arun Chandra Gupta and Pawan Gupta are the sons of the deceased Fulchand. He further stated that normally he used to leave his house at 11 O' Clock for the market but on that particular date he had not gone to the market. He admitted that he had given statement before the police that he saw the maternal grandson of the deceased was crying in the garden. He further stated that normally he used to leave his house at 11 O' Clock for the market but on that particular date he had not gone to the market. He admitted that he had given statement before the police that he saw the maternal grandson of the deceased was crying in the garden. He gave the detail description of the place of occurrence and the houses, which were there in the said area. He further stated that on their alarm, Natwar Mishra and Murlidhar Mishra (PW3) came at the place of occurrence. He further stated that he could not remember whether there was any injury on the person of the informant or not and he was unaware as to who informed the police but he stated that he saw two injuries on the person of the deceased. 9. Pw3 Murlidhar Mishra, in his evidence, has stated that on 03.08.2003 on hearing hue and cry of Natwar Mishra, he reached near the old house of the deceased Fulchand. He further stated that when he reached, he found that Jageshwar Sahu (PW1) and Fulchand Sahu (PW2) were already present there at the place of occurrence and the wife of the deceased informed him that four accused persons have assaulted and committed murder of the deceased. He further stated that Basu and Domna assaulted on the neck of the deceased by Balua and Puras and Anirudh assaulted with Sword. He stated that before he reached, the deceased Fulchand had already expired. He stated that when he reached at the place of occurrence, Jageshwar, Fulchand Sahu (PW2), wife of the deceased and grandson of the deceased were already present there. He named the neighbours of the deceased. He stated that all the accused persons are of Lower Tola. He stated that he was there till evening and several other persons were also there. He further stated that he had not informed the police. The son of the deceased came in the evening but he could not say about the time when they reached at the place of occurrence. In his crossexamination, he could not say the exact time of occurrence but stated that school children were returning home and thus he guessed the time to be around 01.30 P.M. He stated that the deceased was wearing white vest and check shirt. He stated that there was wound on the hand of the deceased. In his crossexamination, he could not say the exact time of occurrence but stated that school children were returning home and thus he guessed the time to be around 01.30 P.M. He stated that the deceased was wearing white vest and check shirt. He stated that there was wound on the hand of the deceased. He stated that the wife of the deceased narrated him and Natwar about the incident. He stated that on that day Dr. Surendra Sahu was also murdered but there was no protest of murder of Dr. Surendra Sahu. He stated that when he reached at the place of occurrence he saw Fulchand and Jageshwar were looking at the body of the deceased and they narrated to him that they reached 57 minutes ago. He denied the suggestion that Pawan Gupta and Arun Gupta and others used to threaten Dr. Surendra Sahu. 10. PW4 is Kishore Sahu, He deposed that on hearing hue and cry, he reached near the house of the deceased and saw that the deceased was lying in the Nala. He stated that Jageshwar Sahu, Fulchand Sahu and Raghubar Sahu, Murlidhar Mishra, Natwar Mishra, wife of the deceased and the maternal grandson of the deceased were present. He further deposed that the maternal grandson Murari was weeping near the garden. He stated that the wife of the deceased told him that these appellants have murdered the deceased. In cross-examination, he confirmed that he has heard the voice of Jageshwar and Fulchand making hue and cry. He also stated that he had told the I.O that Murari (grand son of deceased) was crying near the garden. 11. PW5 is Shrawan Kumar Gupta, who is the son of the deceased. He stated that he received telephonic information about the murder of his father and came to the place of occurrence and saw the dead body of his father, lying near the flour mill. He stated that his mother and his nephew Krishna Murari told him that the appellants have murdered his father. In cross-examination, he told that he had told police that his mother and nephew has informed him that these appellants have murdered his father. 12. PW6 is Dr. He stated that his mother and his nephew Krishna Murari told him that the appellants have murdered his father. In cross-examination, he told that he had told police that his mother and nephew has informed him that these appellants have murdered his father. 12. PW6 is Dr. Prince Pinguwa, who conducted the postmortem examination of the dead body of the deceased and found the following injuries: (i) Incised wound over the upper lip of mouth cutting the muscles above the a angle of mouth extending and cutting the maxillary bone both sides. Length from angle of mouth 3 c.m. each side and 5 c.m. deep. Artificial denture wound in the upper jaw. (ii) Incised wound lower lip 3 cm long. (iii) Chopped wound throat 8 cm long gapping 1 cm cutting trachea, arteries and muscles. Above three injuries are antemortem and caused by sharp cutting heavy weapon such as Sword and Baluwa. Death is possible by injury no. (iii). (iv) Abrasion leftsupra mammary area 1 cm x ¼ cm x skin deep. 13. PW7 is Jayant Kumar Gupta. He deposed that on hearing hue and cry, he went to the place of occurrence where the wife of the deceased informed him that these appellants have committed murder of the deceased. He stated that there was sharp cutting injuries on the neck and face of the deceased. In cross-examination, he stated that he had seen the dead body of the deceased, who was wearing check shirt, white vest and white stripped underwear. 14. PW8 is Arun Chandra Gupta, who is another son of the deceased. He stated that he was in Ranchi and received telephonic information about the occurrence and on receiving such information, he came to the village, to the place of occurrence and saw the dead body of his father. 15. PW9 Krishna Murari Gupta is the maternal grandson of the deceased. He is a child witness aged about 11 years and is one of the eyewitness to the occurrence. He stated that when he was in the garden suddenly, he heard scream of his maternal grandmother. Then he saw Doman and Basu with Baluwa and Anirudh and Puras with Sword were assaulting the deceased and his maternal grandmother was lying beside. He stated that on seeing this, he concealed himself in the garden. This witness also identified the accused in the dock. Then he saw Doman and Basu with Baluwa and Anirudh and Puras with Sword were assaulting the deceased and his maternal grandmother was lying beside. He stated that on seeing this, he concealed himself in the garden. This witness also identified the accused in the dock. In cross-examination, he gave details of the incident. He stated that on the next day his father came and took him to his native village and he returned after five months. He stated that the drain, where his maternal grandfather was lying, was not a sewerage drain and rain water only passes through the said drain. In his cross-examination, he further stated that his maternal grandfather was wearing check shirt, white vest and underwear and was wearing one slipper in one feet only and was not wearing any dhoti. 16. PW10 is the wife of the deceased. She narrated that while she and her husband were in front of their old house, Domna and Basu came with Baluwa, Puras and Anirudh came with Sword and started assaulting the deceased. They pushed her due to which she fell down. The appellants after committing murder of the deceased, fled away from the place of occurrence. She also identified the appellant in the dock and she started weeping in the Court while identifying them. In crossexamination, she stated that Jageshwar and Phulchand came there after hearing her cry and her maternal grandson also came from the garden. She stated that in the garden there were no other workers working. She denied the suggestion that her eyesight is weak. 17. PW11 Devendra Prasad was the Officer-in-Charge of Karra Police Station, who investigated the case and had taken statements of the witnesses. He stated that he could not complete the investigation and on 26.08.2003, handed over the investigation to Chotelal Paswan. In crossexamination, he stated that the informant did not tell him that her husband was pushed in the drain and, thereafter, was killed. 18. PW12 is Chotelal Paswan, who completed the investigation. He stated that he had recorded the statement of Krishna Murari during investigation and submitted charge sheet under Section 302/34 of the Indian Penal Code. 19. PW13 is Nartwar Mishra, who reached the place of occurrence after the incident and heard about the incident from the wife of the deceased. 20. 18. PW12 is Chotelal Paswan, who completed the investigation. He stated that he had recorded the statement of Krishna Murari during investigation and submitted charge sheet under Section 302/34 of the Indian Penal Code. 19. PW13 is Nartwar Mishra, who reached the place of occurrence after the incident and heard about the incident from the wife of the deceased. 20. After closure of the evidence, the accused were examined under Section 313 Cr.P.C. After hearing the arguments, vide judgment dated 27.07.2005 and 29.07.2005, respectively the appellants were convicted and sentenced as aforesaid. 21. Challenging the said judgment of conviction and order of sentence, learned counsel appearing for the appellants submits that the appellants are absolutely innocent and the prosecution miserably failed to prove the charge against them. He further submitted that the informant, i.e. PW10 is not a reliable witness and her evidence cannot be taken into consideration. He further submits that in fact there are no eyewitnesses to the occurrence and PWs9 & 10 though claimed themselves to be the eyewitnesses but, in fact, they are not. From perusal of the evidence adduced, it can be safely concluded that they have not seen the occurrence. He further submits that there are serious dispute between the parties which resulted into false implication of these appellants. He further submits that all the other witnesses save and except PWs9 & 10, are admittedly hearsay witnesses and if the evidence of PWs9 & 10 is discarded, nothing remains in this case to convict these appellants. He further submits that PW9, was examined by the police after six months of the occurrence, which creates doubt about his presence at the time of occurrence. He further submits that no other witnesses have stated about the presence of this PW9 at the place of occurrence which suggests that PW9 was not even present at the place of occurrence, and cannot be termed as an eyewitness. Counsel for the appellants further submits that the prosecution has failed to prove the motive of the occurrence. He lastly submits that only on the basis of the evidence of PWs9 & 10, the appellants cannot be convicted and thus the appellants are liable to be acquitted. 22. On the other hand, learned Addl. Counsel for the appellants further submits that the prosecution has failed to prove the motive of the occurrence. He lastly submits that only on the basis of the evidence of PWs9 & 10, the appellants cannot be convicted and thus the appellants are liable to be acquitted. 22. On the other hand, learned Addl. P.P., supporting the evidence of the informant, submits that the evidence in the entire case is consistent and the appellants have failed to bring out any material to discredit the evidences laid by the prosecution. He submits that PWs9 & 10 are the eyewitnesses to the occurrence and there depositions are consistent and the appellants have failed to demolish their evidences. He further stated that immediately after the occurrence, the other witnesses went to the place of occurrence and saw the dead body of the deceased and heard from PW10 that the appellants have committed murder of the deceased. He submits that the postmortem report also corroborates the factum of assault as narrated by the witnesses. On this background, he submits that the appeals, preferred by these appellants, are liable to be dismissed. 23. We have heard learned counsel for the parties and have gone through the entire lower court records. Altogether 13 witnesses have been examined on behalf of the prosecution to prove its case alongwith the documents. PWs9 & 10 are the eyewitnesses to the occurrence and PWs1, 2, 3, 4 and 13 are the witnesses, who reached the place of occurrence immediately after the deceased was murdered. PW10, who is the informant, has stated that these appellants came, pushed her and assaulted the deceased with sharp cutting weapons, i.e. Baluwa and Sword. She clearly gave the description that the appellants Doman and Basu were having Baluwa in their hands and Puras and Anirudh were having Sword in their hands. She stated that on hearing her cry Jageshwar Sahu (PW1) and Phulchand Sahu (PW2) came to the place of occurrence. She stated that she informed them that these appellants have committed murder of her husband by Baluwa and Sword. She also identified the appellants, who were present in the Court. She also stated that her maternal grandson (PW9) also came to the place of occurrence from the garden. Her statement finds corroboration from the evidence of PWs1, 2 & 9. PW9 who is the maternal grandson of the deceased, is another eyewitness. She also identified the appellants, who were present in the Court. She also stated that her maternal grandson (PW9) also came to the place of occurrence from the garden. Her statement finds corroboration from the evidence of PWs1, 2 & 9. PW9 who is the maternal grandson of the deceased, is another eyewitness. He stated that he was in the garden and after hearing the cry of PW10, he saw that Doman and Basu were armed with Baluwa and Anirudh and Puras were armed with Sword. He stated that he saw that these persons were assaulting his maternal grandfather with the deadly weapons, which they were carrying. He further stated that when PWs1 & 2 came to the place of occurrence then this witness came out from his hiding place. This witness described the apparels, which the deceased was wearing. His statement about apparels of the deceased, matches with the inquest report and with the statement of the witnesses. He stated that the deceased was wearing only one slipper and this fact also matches with the inquest report as only one slipper was found on the person of the deceased. He also explained the reason for his delayed examination by the Investigating Officer as he stated that immediately after the occurrence his father had taken him to his native place. This witness also stated that immediately after the occurrence PWs1 & 2 reached at the place of occurrence. 24. Similar is the statement of PWs1 & 2, who stated that on hearing cry of the informant they reached at the place of occurrence and had seen the dead body. The informant told these witnesses that these appellants have committed murder of the deceased. In fact, these appellants also confirmed the presence of PW9 at the place of occurrence. They stated that after they reached at the place of occurrence, Natwar Mishra and Murlidhar Mishra also reached there. These Murlidhar Mishra and Natwar Mishra are PWs3 and 13 respectively. Both these PWs3 & 13 also deposed that on hearing hue and cry they reached at the place of occurrence and found that PWs1 & 2 already present there. They also stated that the informant narrated that these appellants have committed murder of the deceased by sharp cutting weapons. These Murlidhar Mishra and Natwar Mishra are PWs3 and 13 respectively. Both these PWs3 & 13 also deposed that on hearing hue and cry they reached at the place of occurrence and found that PWs1 & 2 already present there. They also stated that the informant narrated that these appellants have committed murder of the deceased by sharp cutting weapons. PW6 the Doctor, who conducted the postmortem of the deceased, has stated that the injuries on the person of the deceased were caused by sharp cutting heavy weapons such as Sword and Baluwa, corroborating the evidence of the eyewitnesses, i.e. PWs9 & 10, who also stated that the appellants were armed with Baluwa and Sword. PW6 further stated that the death is possible by injury No. (iii), which is chopping wound on throat cutting trachea, arteries and muscles. He further stated that the injury no. (I) & (ii) are not possible by the single blow which also corroborates the evidence of the eyewitnesses, who stated that all of them gave blows on the deceased. 25. From the aforementioned submissions, it is crystal clear that these two eyewitnesses, i.e. PWs9 & 10 are consistent and each of their depositions corroborate with each other. Further the evidences of PWs1, 2, 3 & 13 are consistent. Evidence of none of these witnesses could be shaken by the defence in crossexamination. There is nothing on record to suggest that PWs9 & 10, who are the eyewitnesses, are unreliable witnesses. Even if, PWs9 & 10 are related to each other and with the deceased, there is nothing on record to suggest that they are unreliable. Evidences of these witnesses about the nature of injuries and the weapons used in the assault, get corroboration from the postmortem report. The argument advanced on behalf of the appellants that PW9 is not an eyewitness, cannot be accepted in view of the findings arrived at herein above. The defence could not elicit anything in their favour from the depositions of these witnesses. Their credibility cannot be doubted. 26. So far as the motive is concerned, this Court feels that when there are eyewitnesses to the occurrence of murder, it is not necessary in each and every cases to prove the motive. The defence could not elicit anything in their favour from the depositions of these witnesses. Their credibility cannot be doubted. 26. So far as the motive is concerned, this Court feels that when there are eyewitnesses to the occurrence of murder, it is not necessary in each and every cases to prove the motive. The Hon'ble Supreme Court, considering several other judgment, in the case of “Saddik @ Lolo Gulam Hussein Shaikh and Others versus State of Gujrat, reported in (2017) ACR 79” has already held in para 22 that it is settled legal position that even if the absence of motive, as alleged, is accepted, that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. In this case there is nothing to discredit the testimony of both the eyewitnesses. 27. Thus, in view of the findings arrived at herein above, we find no reason to interfere with the impugned judgment. 28. In the result, both these appeals are hereby dismissed.