Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2425 (JHR)

Ladura Cherwa @ Joto Cherwa v. State Of Jharkhand

2018-10-31

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT 1. Heard learned amicus curiae appointed by this Court for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 23.05.2006 and Order of sentence dated 26.05.2006, passed by the learned Additional Sessions Judge, F.T.C.-V, West Singhbhum, Chaibasa, in S.T. No. 05 of 2005 / S.T.R. No. 02 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 R.I. for life for the said offence. 3. The prosecution case was instituted on the basis of the F.I.R. lodged by the informant Rajesh Cherwa, the brother of the accused appellant, at Gua Police Station on 18.8.2004 at about 7.00 A.M., wherein he has stated that his father had two wives, he and his brother Ladura Cherwa were from the first wife, and the second wife was issueless. His father and his first wife had died earlier, but his step mother was alive. Both the brothers were living separately, and the house of the informant was at some distance. The step mother was also separate in mess. On 17.8.2004, he was informed by the villagers that his younger brother Ladura Cherwa had assaulted his step mother by tangi causing her death. Upon getting information, he went to the house and saw the dead body of his mother in front of the house and his brother was absconding. He enquired from the wife of his brother who informed him that in the last night at about 8.00 P.M., there was some quarrel between his brother and step mother, in course of which Ladura Cherwa had assaulted his step mother Ruibari by tangi, causing her death. As it was raining on 17.8.2004, the informant could not come to the Police Station in absence of any means of transport, and on 18.8.2004 the informant along with Gusa Cherwa, the Munda of the village, went to the Police Station and gave his statement about the occurrence. On the basis of the statement of the informant Rajesh Cherwa, Gua P.S. Case No. 30 of 2004 corresponding to G.R. No. 357 of 2004, was instituted against the accused, for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. On the basis of the statement of the informant Rajesh Cherwa, Gua P.S. Case No. 30 of 2004 corresponding to G.R. No. 357 of 2004, was instituted against the accused, for the offence under Section 302 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, 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. In course of trial, seven witnesses were examined by the prosecution, including the I.O., and Doctor, who had conducted post-mortem examination on the dead body of the deceased. 5. During trial, however, the informant P.W.-5 Rajesh Cherwa, the brother of the accused, and P.W.-6 Pundi Cherva, the wife of the accused, turned hostile and have not supported the prosecution case. PW-5 Rajesh Cherwa, the informant, however, has stated that wife of the appellant had informed him that this accused had assaulted the deceased by tangi, and he had seen the dead body, but he had not seen any injury on it. He has stated that he had not given any information to the police, rather the information was given by the Munda of the village. He had not given any statement before the police. 6. The prosecution case is supported by P.W.-4 Sorai Sundi, as an eyewitness to the occurrence, who is also a seizure list witness relating to the tangi recovered from the house of accused, and has stated that he had put his thumb impression on the seizure list. To the Court''s question this witness has stated that he had seen the quarrel between the accused and the deceased and had also seen the accused assaulting the deceased by tangi, but his attention has been drawn towards his statement made before the police, wherein though he has stated that he had given the statement before the police as eye witness to the occurrence but, the evidence of the I.O., shows that no such statement was given by this witness before the police. As such, the evidence of this witness, being the eyewitness to the occurrence, cannot be relied upon. 7. P.W.-2 Gusa Munda is the Munda of the village, and he is an important witness. As such, the evidence of this witness, being the eyewitness to the occurrence, cannot be relied upon. 7. P.W.-2 Gusa Munda is the Munda of the village, and he is an important witness. This witness has stated that the accused himself came to his house and told him that he had assaulted his aunt by tangi and killed her. This witness went to the place of occurrence along with accused and found the dead body, with injuries. The informant and one Budhu Cherwa were also present there. He has stated that on Tuesday there was heavy rains and, they could not go to the Police Station, and as such they went to the Police Station on the next day, wherein the informant Rajesh Cherwa gave his statement before the police, upon which the informant had put his thumb impression, and this witness had put his signature. This witness has identified his signature on the statement of the informant given at the Police Station, which was marked as Ext. 2. He is also witness to the inquest report of the dead body and has proved his signature on the inquest report, which was marked as Ext. 3. He has identified the accused in the Court. This witness has stated in his cross-examination that he had seen five cut injuries on the dead body and he has also stated that the accused himself had come to his house at about 7.00 A.M. in the morning, and the accused had confessed his guilt before some villagers also, who were present there. He has denied the suggestion of giving false evidence. 8. P.W.-3 is Budhu Cherwa, who is the witness to the seizure of tangi and blood stained soil from the house of accused. He has not stated anything about the occurrence. 9. P.W.-1 Dr. Binod Kumar Pandit had conducted the post-mortem examination on the dead body of the deceased on 19.8.2004 at about 10:30 A.M., and found the following ante-mortem injuries on the dead body:- (i) Incised wound on right occipital area 6" x 4"x bone deep. (ii) Incised wound on left cheek 2"x1" x ". (iii) Lacerated wound on forehead just above right eye. (iv) Incised wound on left thigh 2"x1 "x1/2". C.N.S. - Brain and meninges were lacerated with blood, and blood clots were inside the cranial cavity. Stomach - empty. Heart - right full, left empty. (ii) Incised wound on left cheek 2"x1" x ". (iii) Lacerated wound on forehead just above right eye. (iv) Incised wound on left thigh 2"x1 "x1/2". C.N.S. - Brain and meninges were lacerated with blood, and blood clots were inside the cranial cavity. Stomach - empty. Heart - right full, left empty. He has stated that cause of death was due to head injury and shock caused thereby. The injuries were caused by sharp and heavy object such as tangi, and also by hard and blunt object. Injury Nos. (i), (ii) and (iv) could be caused by tangi, whereas injury No. (iii) could be caused by reverse side of tangi or lathi, and all the injuries were ante-mortem in nature. He has stated that rigor mortis was present and accordingly, the time since death was between 6 hours to 48 hours, and he has also stated that the maximum age of injuries may extent up to 72 hours. He has proved post-mortem report to be in his pen and signature, which was marked as Ext.1 10. P.W.-7 Akshay Kumar Ram is the I.O. of the case. This witness has stated that on 18.8.2004 he was posted as Officer-Incharge of Gua Police Station. On that day Rajesh Cherwa had given his statement at the Police Station, which he had recorded. He has proved the same which was marked as Ext.4. He has also stated that the village Munda, Gusa Cherwa had put his signature on the statement of the informant. He has also proved formal FIR which was marked as Ext. 5. He took over the charge of investigation and he recorded the restatement of the informant and the statement of the village Munda. He inspected the place of occurrence, situated in village Duiya. He found the dead body and prepared inquest report, which he had proved and the same was marked Ext. 6. He has stated that he inspected the place of occurrence, which is the house of the accused Ladura Cherwa. He had found the dead body in front of the house at a distance of about 50 yards which was kept in a ditch covered by soil, but the dead body was visible. The dead body was identified by Rajesh Cherwa and the village Munda. He had found the blood stains near the door of the house and also near the dead body. The dead body was identified by Rajesh Cherwa and the village Munda. He had found the blood stains near the door of the house and also near the dead body. He recovered the blood stained tangi and soil from the house of the accused, and prepared the seizure list, which he has proved and the same was marked as Ext. 7. He arrested the accused on the same day through the Munda. He recorded the statements of the witnesses and sent the dead body for post-mortem examination, and he also sent the blood stained soil and tangi for forensic examination, but the report was not sent by the Forensic Lab. Completing the investigation, he submitted in the case. He has identified the accused in the Court. In his cross-examination, this witness has stated that he had not prepared the sketch map of the place of occurrence and Sorai Sundi had not given statement before him as an eyewitness to the occurrence. He has denied the suggestion of making faulty investigation. 11. The statement of the accused was recorded u/s 313 Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the evidence on record the appellant has been found guilty, convicted and sentenced for the offence as aforesaid. 12. Learned amicus curiae appearing for the appellant submitted that there is undue delay in lodging of the FIR, inasmuch as, the occurrence had taken place on 16.8.2004 at about 8.00 P.M., whereas FIR was lodged on 18.8.2004 and the only explanation given for delay is that it was raining on 17.8.2004. Learned counsel also submitted that the informant and the wife of the accused had turned hostile and have not supported the prosecution case and even time of death as proved by PW-1 Dr. Binod Kumar Pandit, to be between 6 to 48 hrs., is not supported by the evidence on record, as admittedly the occurrence had taken placed on 16.8.2004 at about 8.00 P.M., whereas the post-mortem examination was done on 19.8.2004 at about 10:30 A.M., which is more than 60 hrs. Binod Kumar Pandit, to be between 6 to 48 hrs., is not supported by the evidence on record, as admittedly the occurrence had taken placed on 16.8.2004 at about 8.00 P.M., whereas the post-mortem examination was done on 19.8.2004 at about 10:30 A.M., which is more than 60 hrs. Learned counsel accordingly, submitted that it is a case in which there is no evidence against the accused and the appellant ought to have been acquitted by the Trial Court below, and the impugned Judgement of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 13. Learned counsel for the State on the other hand has opposed the prayer, and has submitted that the prosecution case is supported by PW-2 Gusa Munda, who has stated that accused had made extra-judicial confession before him, as also by one witness PW-4 Sorai Sundi and their evidence is fully corroborated by medical evidence of PW-1 Dr. Binod Kumar Pandit, and the post-mortem report proved by him as Ext. 1, which shows that three incised wounds and one lacerated wound were found on the dead body of the deceased which were on the vital parts, and the injuries were sufficient in the ordinary course of nature to cause the death. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused person beyond all reasonable doubts and there is no illegality in the impugned Judgement of conviction and Order of sentence passed by the Trial Court below. 14. Having heard, learned counsels for both the sides and upon going through the record, we find that the informant PW-5 Rajesh Cherwa, who is the own brother of the accused, has turned hostile stating that he had not given any statement before the police. Even according to FIR, he is not an eye witness to the occurrence. In his evidence, however, he has stated that he was informed by the wife of the appellant that that this accused had assaulted the deceased by tangi, and he had seen the dead body. He has however, stated that he did not see any injury on the dead body. The fact, however, remains that the hostile witnesses are the brother and wife of the appellant and there are reasons for them to become hostile. 15. He has however, stated that he did not see any injury on the dead body. The fact, however, remains that the hostile witnesses are the brother and wife of the appellant and there are reasons for them to become hostile. 15. Pw-2 Gusa Munda is the Munda of the village, and he has stated that this accused had himself come to his house and had informed him that he had assaulted the deceased by tangi, causing her death. This is an extra-judicial confession made by the accused before the village Munda and it is voluntarily in nature, inasmuch as, the accused himself had gone to his house and had informed him. There is no cross-examination by the defence about this extra-judicial confession that such statement was not given by the Munda before the police. He has also stated that upon the confession made by the accused, he came to the place of occurrence along with accused, and saw the dead body with injuries. 16. The other important evidence against the appellant is of the I.O., who has stated that he had seized the blood stained tangi and blood stained soil from the house of the accused and he has also stated that he arrested the accused on the same day through the Munda. The submission of learned amicus curie, that the time gap between the death and the post-mortem examination, does not match with the time of occurrence, is not correct. The evidence of P.W.-1 Dr. Binod Kumar Pandit, shows that he has clearly stated that the maximum age of injuries may extend up to 72 hours, which is well within the gap between the time of occurrence and the date and time of post-mortem examination of the dead body. The other submission of learned the learned amicus curie, about the delay in lodging the FIR, is also well explained, as the FIR shows that the distance between the Police Station and the village of occurrence is about 30 kms., and due to heavy rains and in absence of any means of transport, there was delay of one day in lodging the FIR. We are of the considered view that even though the informant and the wife of accused had turned hostile, but the voluntary extra judicial confession made by the accused before P.W. 2 Gusa Munda, and the recovery of blood stained soil and tangi from the house of the accused, proved beyond all reasonable doubts that the accused had committed the murder of his step mother. We find, that on the basis of the evidence on record, the prosecution has been able to bring home the charge against the accused appellant beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed the Trial Court below, worth any interference by this court. 17. For the foregoing reasons, as there is no illegality in the impugned Judgment of conviction dated 23.05.2006 and Order of sentence dated 26.05.2006, passed by the learned Additional Sessions Judge, FTC-V, West Singhbhum, Chaibasa, in S.T. No. 05 of 2005 / STR No. 02 of 2005, convicting and sentencing the appellant Ladura Cherwa @ Joto Cherwa for the offence under section 302 of the Indian Penal Code, we hereby, affirm the same. The appellant is already in custody undergoing his sentence. 18. Before parting with this Judgment, we must record our satisfaction that we have been given able assistance by the learned amicus curiae Ms. Amrita Banerjee, and we direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 19. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgment.