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2018 DIGILAW 2312 (JHR)

Kano Baski v. State of Jharkhand

2018-10-23

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. Appellants are aggrieved by the impugned Judgement of conviction dated 31.05.2007 and Order of sentence dated 01.06.2007, passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 57 of 2000/21 of 2003, whereby, the appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo rigorous imprisonment for life and fine of Rs.5000/- each for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Munna Prasad, the brother of the deceased Shivlal Prasad, recorded on 23.06.1999, near a pond in village Jabardaha, P.S. Nala (Bindapathar), District Jamtara, near the dead body of the deceased. The informant and his deceased brother were the residents of State of West Bengal, and the deceased was a Truck Driver. It is stated in the fardbeyan that on 21.06.1999, at about 9 A.M., the deceased had gone along with one Babujan Tudu on his motorcycle to Kundahit Police Station in connection with some case. While, they were returning back, at the request of the deceased, the deceased and Babujan went to the house of Kano Baski at village Jabardaha, where they took liquor. When they were returning back, Kano Baski and 5 to 6 persons surrounded their motorcycle and took both of them in the house on the pretext of some meeting. In the meantime, Shivlal Prasad went to the house of Labeshwar Baski, the Pradhan of the village, but Babujan remained in the house of Kano Baski. On 22.06.1999, Shivlal Prasad along with the village Pradhan Labeshwar Baski came to the house of Kano Baski and there was a meeting with Kano Baski, his father-in-law Chando Marandi, brothers-in-law Dilip Marandi and Ishwar Marandi, with respect to some affair of the deceased with the daughter of Chando Marandi, and it was decided that the deceased shall not meet and keep any relationship with the said girl. In the course of meeting all of them took liquor and then Kano Baski, Chando Marandi, Dilip Marandi and Ishwar Marandi told that they would kill Shivlal Prasad and they started dragging Shivlal Prasad towards the pond. In the course of meeting all of them took liquor and then Kano Baski, Chando Marandi, Dilip Marandi and Ishwar Marandi told that they would kill Shivlal Prasad and they started dragging Shivlal Prasad towards the pond. While they were taking Shivlal Prasad toward the pond, Babujan Tudu fled away on his motorcycle to save himself. On 23.06.1999 Labeshwar Baski informed the informant that his brother has been murdered, whereupon the informant asked Babujan Tudu, who informed him about the aforesaid facts. Thereafter they went towards the pond in village Jabardaha, where dead body of deceased was found with injuries. The informant claimed that the accused persons, namely, Kano Baski, Chando Marandi, Dilip Marandi and Ishwar Marandi had committed the murder of his deceased brother, assaulting him by stones, due to the fact that his deceased brother was having affair with the daughter of Chando Marandi, and he had gone to meet her. On the basis of the fardbeyan of the informant, Nala (Bindapathar) P.S. Case No. 37 of 1999 was instituted for the offence under sections 302/34 of the Indian Penal Code, against the named accused persons and the 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, charge was framed against the accused persons for the offence under sections 302/34 of the Indian Penal Code, and upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, prosecution has examined seven witnesses, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-5 Munna Prasad is the informant in the case, who has supported the case as hearsay witness, stating that he was informed about the occurrence by Labeshwar Baski and also by Babujan. He has supported the case as given in the FIR which was informed to him by Babujan Tudu, who was accompanying the deceased. He has also stated that he had given the fardbeyan to the police, upon which he had put his signature and Babujan Tudu had also put his signature. He had identified both the signatures on the fardbeyan, which were marked as Exts. 1 and 1/1. 6. He has also stated that he had given the fardbeyan to the police, upon which he had put his signature and Babujan Tudu had also put his signature. He had identified both the signatures on the fardbeyan, which were marked as Exts. 1 and 1/1. 6. P.W.-4 is Babujan Tudu, who was accompanying the deceased at the time of occurrence, and he has supported the case partly as eye witness to the occurrence, stating that on 21.06.1999, he had gone to Kundahit Police Station in connection with a case, and when he was returning back, he met Shivlal Prasad, who asked him to accompany him to village Jabardaha. He went to Jabardaha along with Shivlal Prasad, who was having some affair with the daughter of Chando Marandi, and they had gone to meet the girl. When Chando Marandi had learnt about the affairs between his daughter and Shivlal Prasad, he had kept his daughter at the house of Kano Baski at Jabardaha, as Kano Baski was his son-in-law. They took liquor near the house of Kano Baski and when they were returning back, Kano Baski and some persons surrounded them and took them to the house. Shivlal slipped away from there and went to the house of Labeshwar Baski, who was the Pradhan of the village. This witness remained at the house of Kano Baski. On the next day, there was a meeting in connection with the affair between the daughter of Chando Marandi and Shivlal, and all these accused persons were there in the meeting. After the meeting, they took liquor and thereafter Chando Marandi, Kano Baski, Dilip Marandi and Ishwar Marandi started dragging Shivlal towards the pond stating that they would kill him. Thereafter, this witness fled away due to fear. On the next day, Labeshwar informed him that the dead body was lying near the pond. This witness has stated that he had seen the dead body and the brothers of the deceased had also seen the dead body. He has identified the accused persons in the Court. In his cross examination, this witness has stated that he was the friend of the deceased Shivlal, as they were living nearby, and the motorcycle was his own. This witness has stated that he had seen the dead body and the brothers of the deceased had also seen the dead body. He has identified the accused persons in the Court. In his cross examination, this witness has stated that he was the friend of the deceased Shivlal, as they were living nearby, and the motorcycle was his own. He was knowing about the affairs between the deceased and the daughter of the accused for about one year, but he did not use to accompany the deceased to the house of the girl. He has stated that on the date of occurrence, he remained in the house of Kano Baski in the night, but he did not go towards the pond. In the meeting 8 to 10 villagers had assembled and after the meeting, they also took meal and liquor. Thereafter when the accused persons starting dragging the deceased for committing his murder, he kept quite due to fear and thereafter he fled away. He returned back to his house at about 3 A.M. in the night, and had not informed the family members of the deceased. In the morning, he had accompanied the brothers of the deceased to the place where the dead body was found. He has denied the suggestion to have stated before the police that he had slept due to the fact that he had taken liquor. He has denied the suggestion of giving false evidence. 7. P.W.-1 Labeshwar Baski is the Pradhan of the village. This witness has turned hostile on the point of identification of the accused persons, but he has supported the fact that the deceased had gone to his house requesting to get the motorcycle released and he had accompanied the deceased to the place where the motorcycle was kept. 8. P.W.-2 Prashant Ghosh and P. W.-3 Paltu Prasad are the hearsay witnesses and upon getting the information, they had seen the dead body. P.W.-2 Prashant Ghosh has stated nothing about the occurrence. P.W.-3 Paltu Prasad is the brother of the deceased. He has supported the prosecution case as hearsay witness and he has identified the accused persons in the Court. 9. P.W.-6 Dr. Shambhu Nath Singh had conducted the post-mortem examination on the dead body of the deceased on 24.6.1999, and had found the following injuries on the dead body:- External appearance- face swollen due to injuries. He has supported the prosecution case as hearsay witness and he has identified the accused persons in the Court. 9. P.W.-6 Dr. Shambhu Nath Singh had conducted the post-mortem examination on the dead body of the deceased on 24.6.1999, and had found the following injuries on the dead body:- External appearance- face swollen due to injuries. Rigor Mortis absent, Body was undergoing decomposition with bad smell. Maggots crawling inside the mouth, teeth exposed, eyes closed, eyelids swollen pupil- dilated. Bleeding from mouth present. Face disfigured, faeces coming out of anus, colon- congested, mandible fractured into pieces, tongue protruded. Mouth- Open and swolen due to multiple fractures. Liver and spleen - pale and dark blood oozed from surface on cutting. Eyelid and eye swollen due to extensive injuries of left cheek muscles and bone and blood vessels congested. Multiple fracture of Mandible-Maxilla and zygomatic arch extending to left side of left eye. Face yielded on palpation due to absence of intact bone and muscles. Mandible dislocated and freely mobile. Piercing wound by sharp pointed weapon inflicted on left side of left eye and other similar wound of size 1”x 1”x5” caused on left side of chin. These wounds were caused with sharp cutting weapon. This witness has stated that other injuries were caused by hard and blunt objects like stone and the cause of death was due to shock and haemorrhage due to extensive facial injuries including bony, muscular and vascular injuries. He has stated that all the injuries were ante-mortem in nature. He has identified the post-mortem to be in his pen and signature, which was marked as Ext.2. 10. P.W.-7 is Alakh Niranjan Choudhary, the I.O. of the case. This witness has stated that on 23.06.1999 he was posted as Officer-In-charge of Bindapathar Police Station. He has proved the fardbeyan of the informant to be in his pen and signature, which was marked as Ext. 3. This witness has also stated that he took over the charge of investigation and he prepared the inquest report of the dead body, which he has proved and the same was marked as Ext. 4. He has given the details of the place of occurrence, where the dead body was found which was an uncultivated agricultural field. The blood mixed water was also found there and there was stone also lying nearby. The said field was near a pond. 4. He has given the details of the place of occurrence, where the dead body was found which was an uncultivated agricultural field. The blood mixed water was also found there and there was stone also lying nearby. The said field was near a pond. He recorded the statements of the witnesses and after completing the investigation, he has submitted charge-sheet in the case. In his cross examination, this witness has stated that he had not seized stone and the blood from the place of occurrence. He had not made any investigation about the affair of the deceased with the girl. He has also admitted that the witness Babujan had stated that upon getting inebriated he had slept. He has denied the suggestion of making faulty investigation. 11. The statements of the accused persons were recorded under section 313 of the Cr.P.C., wherein they have denied the evidence against them. Two witnesses have been examined by the defence, who were D.W.-1 Hemlal Murmu and D.W.-2 Mangal Soren, who have only stated that the accused persons, Chando Marandi, Dilip Marandi and Ishwar Marandi are their villagers and there was a marriage in the village in which these accused persons were also working. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below, as aforesaid. 12. Learned counsel for the appellants has submitted that impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, according to the prosecution case the informant was informed by Labeshwar Baski, who has been examined as P.W.-1, but he has turned hostile and he has not supported this fact. It is further submitted by the learned counsel that the prosecution case is supported only by P.W.-4 Babujan Tudu, who had also not seen the occurrence of murder, as he has stated that while the deceased was being dragged by the accused persons, he fled away due to fear. It is submitted that his conduct is very doubtful, inasmuch as, even though he was accompanying the deceased, and he was a friend of the deceased, but he did not inform the family members of the deceased. It is submitted that his conduct is very doubtful, inasmuch as, even though he was accompanying the deceased, and he was a friend of the deceased, but he did not inform the family members of the deceased. It is also submitted that P.W.-7 Alakh Niranjan Choudhary, the I.O., has admitted in his cross examination that this witness had stated before him that after taking liquor he had slept. As such the evidence of this witness cannot be relied upon. Learned Counsel accordingly, submitted that there is no other material on the record to support the conviction of the accused persons and it is a fit case in which the appellants ought to have been given the benefits of doubt. 13. It is further submitted by the learned counsel for the appellants that in the statements of the accused persons recorded under section 313 of the Cr.P.C., no question was put to them regarding the fact that the accused persons were dragging the deceased towards the pond and on the next day, the dead body was recovered, rather the only question that was put to them was that they had committed the murder of the deceased. Learned counsel submitted that this has also caused prejudice to the defence, and on this score also, the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below cannot be sustained in the eyes of law. 14. Learned counsel for the State, on the other hand, has submitted that the prosecution case is fully supported by P.W.- 4 Babujan Tudu, who was accompanying the deceased at the time of occurrence. He has given the vivid details about the meeting which was attended by all the accused persons and in which the deceased was prohibited to meet the girl. They took liquor and thereafter they started dragging the deceased towards the pond stating that they would kill him. Out of fear, this witness fled away and on the next day the dead body of the deceased was found. The other witnesses, the informant and the other brother of the deceased, have also supported the prosecution case fully as hearsay witnesses, and they had seen the dead body of the deceased with injuries, and the ocular evidence of these witnesses is fully corroborated by medical evidence of P.W.-6 Dr. Shambhu Nath Singh, and the post-mortem report proved by him as Ext. Shambhu Nath Singh, and the post-mortem report proved by him as Ext. 2, who found several injuries on the dead body caused by hard and blunt object such as stones, as also by sharp cutting weapon. The IO has also stated that stone was lying nearby where the dead body was found. Learned counsel accordingly, submitted that prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 15. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by P.W.-4 Babujan Tudu, who was the friend of the deceased and was accompanying the deceased at the time of occurrence. This witness has given the vivid details of the occurrence, right from the meeting that was held and attended by the accused persons for the affair with the girl, in which the deceased was prohibited from meeting the girl, to the fact that after taking liquor, the accused persons started dragging the deceased towards the pond in the village, stating that they would kill him. This witness, thereafter fled away due to fear and on the next day, the dead body of the deceased was found in a field near the pond, with the injuries, which were proved by the medical evidence of P.W.-6 Dr. Shambhu Nath Singh, and the post-mortem report proved by him as Ext. 2, who had found several ante-mortem injuries on the dead body which were sufficient in the ordinary course of nature to cause the death. Though it is taken from the IO that this witness had stated before him that after taking liquor, he had slept, but in the interest of justice we have looked the case diary also, which clearly shows that this witness had given vivid details of the occurrence even before the police, and had stated that after fleeing away from the place of occurrence, he came to his own house and he slept. It is not the fact that he had not seen the occurrence as he had slept, rather he had seen the entire occurrence till the deceased was taken away by the accused persons stating that they would kill him, and thereafter he had fled away due to fear, came to his house in the dead night and slept. These details of occurrence is also supported by P. W.-5 Munna Prasad, and P.W.-3 Paltu Prasad, who are the brothers of the deceased, stating that these details were informed to them by P.W.-4 Babujan Tudu. These witnesses, along with P.W.-2 Prashant Ghosh had gone to the place of occurrence, where they had seen the dead body with injuries. Though P.W.-1 Labeshwar Baski had turned hostile on the point of identification of the accused persons, but he has also supported the fact that the deceased had gone to his house requesting him to get the motorcycle released, and he had accompanied the deceased to the place where the motorcycle was kept. 16. The contention of the learned counsel for the appellant that all the circumstances were not put to the accused persons under section 313 of the Cr.P.C., is not of much importance, in view of the fact that the accused persons were asked about their involvement in the murder of the deceased which they had denied. Learned counsel failed to convince us that any material prejudice, resulting in any miscarriage of justice, was caused to the accused persons by not asking them about the evidence that they were dragging the deceased stating that they would kill him. The law in this regard is well settled by the Hon’ble Supreme Court of India in Nar Singh v. State of Haryana, reported in (2015) 1 SCC 496 , as follows:- “16. Undoubtedly, the importance of a statement under Section 313 Cr.P.C., insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 Cr.P.C. statement is taken at the earliest stage, the court can make good the defect and record additional statement of the accused as that would be in the interest of all. If an objection as to Section 313 Cr.P.C. statement is taken at the earliest stage, the court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 Cr.P.C. statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 Cr.P.C., failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. …………... *** *** *** 18. Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, this Court in Santosh Kumar Singh v. State, has held as under: “92.… the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him.” 19. In Paramjeet Singh v. State of Uttarakhand, this Court has held as under: “30. Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.” 20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance with Section 313 Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that the accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him ………….” (Emphasis supplied). 17. The fact remains that on the basis of the evidence brought on record, the prosecution has been able to prove that all these four accused persons had prohibited the deceased to meet, and continue his affair with the girl, and after taking liquor, they were dragging the deceased towards the pond stating that they would kill him, and on the very next day, the dead body of the deceased was found at the same place. This leads to one and the only conclusion that the deceased was murdered by these accused persons, in furtherance of the common intention of all of them, for the reason that he was having an affair with the girl. This leads to one and the only conclusion that the deceased was murdered by these accused persons, in furtherance of the common intention of all of them, for the reason that he was having an affair with the girl. We are of the considered view that the prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts for the offence under sections 302/34 of the Indian Penal Code, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 18. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 31.05.2007 and Order of sentence dated 01.06.2007 passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 57 of 2000/21 of 2003, convicting and sentencing the appellants Kano Baski, Chando Marandi, Dilip Marandi and Ishwar Marandi, for the offence under sections 302/34 of the Indian Penal Code, which we hereby, affirm. The appellants Kano Baski, Dilip Marandi and Ishwar Marandi are already in custody undergoing the sentence. The appellant Chando Marandi is on bail. His bail is hereby, cancelled, and he is directed to surrender in the Trial Court below forthwith, for serving out the sentence. The Trial Court below is also directed to issue process forthwith, compelling the surrender/production of the appellant Chando Marandi for serving out the sentence. 19. We do not find any merit in this appeal, which is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. Appeal dismissed.