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2018 DIGILAW 2692 (JHR)

Wakil Hansda v. State Of Jharkhand

2018-12-08

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 27.01.2015 and Order of sentence dated 29.01.2015, passed by the learned Addl. Sessions Judge-I, Pakur, in Sessions Case No. 65 of 2009, whereby, the appellant has been 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 rigorous imprisonment for life and fine of Rs. 25,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Sonoti Murmu, the wife of deceased Babudhan Marandi, in her village Banskendri (Latartola), P.S.- Maheshpur, District- Pakur, on 12.2.2009, at 9.40 A.M. in the morning, wherein, she has stated that on the previous day, i.e., 11.2.2009 in the evening, at about 7.00 PM, her husband had visited her maternal aunt''s (Mousi''s) place on the occasion of the festival (Sohrai), and thereafter, he had gone to the house of Wakil Hansda (the appellant), where there was a hearth with fire in the courtyard and he sat warming himself at the said fire along with other members of that family. Wakil Hansda was inside his house. He came out of his house and assaulted her husband by wooden shaft near his ear, due to which he died at the spot. On the basis of the fardbeyan given by informant, Maheshpur P.S. Case No. 14 of 2009, corresponding to G.R. No. 102 of 2009, was instituted for the offence under Section 302 of the Indian Penal Code, against the sole accused, 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 appellant 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, the prosecution has examined ten witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-6 Saip Hembram has turned hostile, and has not supported the prosecution case at all. 5. In course of trial, the prosecution has examined ten witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-6 Saip Hembram has turned hostile, and has not supported the prosecution case at all. 5. P.W.-10 Sonoti Murmu is the informant of this case, and the wife of the deceased. She has supported the prosecution case as eyewitness to the occurrence, stating that the occurrence had taken place about four years ago, at about 7.00 P.M. She had gone along with her husband to her relative''s house in a festival and from there, they went to the house of Wakil Hansda. They were sitting in the courtyard where there was a hearth with fire, and the family members of the Wakil Hansda were also sitting near the hearth. Wakil Hansda was inside the house. He came out from the house with a wooden shaft and assaulted her husband near his ear, due to which, he fell down and died at the spot. She has stated that her statement was recorded by the police, on which she had put her thumb impression. She has identified the accused in the Court. In her cross-examination, she has stated that her house is situated in Latartola in the village, whereas the occurrence had taken place in Churitola, which was at a distance of 500 yards. Her husband had first gone to his maternal aunt''s place, and from there, he had gone the house of Wakil Hansda. In her cross-examination, she has also stated that she was informed about the occurrence and when she saw her husband, he had already died, but she has again stated that she is the eyewitness to the occurrence. She has stated that there was no enmity between the accused and her husband, and she has also denied the suggestion of giving false evidence. 6. P.W.-1 Bhola Tudu, P.W.-2 Sritan Tudu and P.W.-3 Chhita Tudu, the maternal aunt of the deceased, have supported the case as eyewitnesses to the occurrence, stating that it was the time of Sohrai festival, in which, the deceased had gone to his maternal aunt''s place, and from there, he had gone to Wakil Hansda''s house, where, he was sitting in the courtyard near the hearth, where the other family members were also sitting. They have stated that Wakil Hansda was inside the house. He came out from his house with a wooden shaft and assaulted the deceased near his right ear, due to which, he fell down and died at the spot. P.W.-1 Bhola Tudu has stated that the police had recovered the bloodstained wooden shaft, one Machiya and Peerha from the place of occurrence, and prepared the seizure list, on which, he had put his signature, which he has proved and the same was marked as Exhibit-1. He is also the witness to the fardbeyan of informant, on which also, he has proved his signature, and the same was marked as Exhibit-2. These witnesses have identified the accused in the Court. P.W.-3 Chhita Tudu, the maternal aunt (Mousi) of the deceased, has stated that the deceased had come to her house and thereafter he had gone to Wakil Hansda''s house, where the occurrence had taken place and she has also supported the case as eyewitness to the occurrence. 7. P.W.-4 Dhena Hembram and P.W.-7 Fochang Hansda have only stated that they had heard that Wakil Hansda had committed the murder of the deceased. P.W.-5 Kalidas Marandi is also a hearsay witness, who has stated that he had heard that the accused had committed the murder of the deceased. He has also stated that he went to the place of occurrence, where he saw the dead body, the bloodstained earth and wooden shaft. He is the witness to the inquest report also, and he has also identified the accused in the Court. 8. P.W.-8 Dr. Dr. S.K. Jha had conducted the post-mortem examination on the dead body of the deceased on 12.02.2009, and had found the following injuries on the dead body:- External:- Incised wound over right ear, length and width 4 X 1 , clinical fractured of right temporal bone. Internal on dissection:- Brain - Massive extra and intra cranial hemorrhage. Heart - Left empty and right full with blood. Lungs - Pale, Liver - Pale, Stomach - Liquid material present. Small and large intestine - Full with liquid and gases. Spleen - Congested, Bladder- empty. He has stated that cause of death was due to hemorrhage and shock due to head injury, caused by sharp cutting substance. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-3. Small and large intestine - Full with liquid and gases. Spleen - Congested, Bladder- empty. He has stated that cause of death was due to hemorrhage and shock due to head injury, caused by sharp cutting substance. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-3. In his cross-examination, he has stated that injury could not be caused by hard and blunt substance. 9. P.W.-9 is Satyendra Narayan Singh, the I.O. of the case. This witness has stated that on 12.2.2009 he was posted as Officer-Incharge of Maheshpur Police Station. He was informed by the Chowkidar that one person was murdered in village Baskendri, whereupon, he proceeded to the place of occurrence. He recorded the statement of the informant Sonoti Murmu and he prepared the inquest report, as also the seizure list of the wooden shaft, by which, the offence was committed. He recorded the re-statement of the informant and he also inspected the place of occurrence. He arrested the accused Wakil Hansda. He has also stated that he received the post-mortem report. The place of occurrence is the courtyard of the house of accused Wakil Hansda, where there was an earthen hearth, in which the remains of fire were still there. The dead body of the deceased was near the earthen hearth and there were bloodstains. Wooden shaft was also there, by which the offence was committed. There was a Peerha and Machiya also, in which, there were bloodstains, and he had seized all these articles and prepared the seizure list. He has proved the fardbeyan, formal FIR and the seizure list, which were marked Exhibits-4, 5 and 1/A respectively. He has produced the wooden shaft, which was marked Material Exhibit-I. After completing the investigation, he submitted the charge-sheet in this case. In his cross-examination, he has admitted that he had not sent the material exhibit for forensic examination. His attention was drawn towards the statement of P.W.-1 Bhola Tudu, and he stated that Bhola Tudu had supported the prosecution case as hearsay witness. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the materials on record, the accused appellant has been found guilty, convicted and sentenced for the offence as aforesaid. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, the medical evidence on record does not support the prosecution case, as according to the prosecution case, the offence was committed by the wooden shaft, whereas P.W.-8 Dr. S.K. Jha, who had conducted the post-mortem examination on the dead body of the deceased, had found incised wound on the dead body. Alternatively, it is submitted by learned counsel that there is no allegation of repeating the blow against the accused Wakil Hansda, and there was no enmity between the parties from before. It is submitted that the offence, if any, is made out only under Section 304 Part-II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. It is submitted that the appellant is in custody from the month of February, 2009 itself, and as such he has sufficiently been punished for the same. 12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution witnesses have fully supported the prosecution case, stating that this accused has assaulted the deceased by wooden shaft, due to which, the deceased died at the spot. It has also been submitted that there was no provocation by the deceased and as such, the offence is clearly made out under Section 302 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. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the case is supported by the eyewitness P.W.-10 Sonoti Murmu, who is wife of the deceased, and also by P.W.-3 Chhita Tudu, the maternal aunt (Mausi) of the deceased, as also by P.W.-1 Bhola Tudu and P.W.-2 Sritan Tudu. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the case is supported by the eyewitness P.W.-10 Sonoti Murmu, who is wife of the deceased, and also by P.W.-3 Chhita Tudu, the maternal aunt (Mausi) of the deceased, as also by P.W.-1 Bhola Tudu and P.W.-2 Sritan Tudu. All these witnesses have stated that the deceased was sitting in the courtyard of the accused Wakil Hansda, along with other family members of the said accused. The accused came out of the house and assaulted the deceased by wooden shaft, due to which he fell down and died at the spot. There is no allegation of repeating the blow against this accused. However, the fact remains that the evidence of P.W.-9 Satyendra Narayan Singh, the I.O. of the case, shows that P.W.-1 Bhola Tudu is not the eyewitness to the occurrence. Be that as it may, the dead body of the deceased had been found in the courtyard of the accused Wakil Hansda, and as such, the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts that the deceased was assaulted by this accused, which proved fatal to the deceased. 14. The evidence of P.W.-8 Dr. S.K. Jha shows that he had found only one external injury on the dead body over the right ear of the deceased. This shows that there was no repetition of blow by the accused. Though the wound had caused massive extra and intra cranial hemorrhage, we are of the considered view that taking into consideration the nature of single injury on the dead body of the deceased, as also the fact that there was no repetition of blow, it cannot be said that the assault was made with the intention to cause the death of the deceased. As such, the prosecution has not been able to bring home the charge against the accused for the offence under Section 302 of the Indian Penal Code beyond all reasonable doubts, but the offence is made out under Section 304 Part-II of the Indian Penal Code. 15. We find from the charge-sheet available on record, that the appellant was remanded in this case on 12.2.2009 itself, and he has remained throughout in custody for little less than ten years. 15. We find from the charge-sheet available on record, that the appellant was remanded in this case on 12.2.2009 itself, and he has remained throughout in custody for little less than ten years. As such, we are of the considered view that the interest of justice would be served, if the appellant is sentenced to the period already undergone by him, for the offence under Section 304 Part-II of the Indian Penal Code. 16. For the forgoing reasons, the impugned Judgment of conviction dated 27th January, 2015, passed by the learned Addl. Sessions Judge-I, Pakur, in Sessions Case No. 65 of 2009, is hereby, modified to the extent that the appellant Wakil Hansda is convicted for the offence under Section 304 Part-II of the Indian Penal Code, instead of Section 302 of the Indian Penal Code, and Order of sentence dated 29th of January, 2015, is hereby, set aside, and the appellant is sentenced to undergo R.I. for the period already undergone by him. The appellant Wakil Hansda is in custody, undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 17. Before parting with this judgment, we wish to record that P.W.-10 Sonoti Murmi, who is the wife of the deceased, is the victim of crime in this case, and she is entitled to be duly compensated under the Victim Compensation Scheme under Section 357-A of the Code of Criminal Procedure. We, accordingly, direct the Member Secretary, Jharkhand State Legal Service Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that P.W.-10 Sonoti Murmu is duly compensated under the Victim Compensation Scheme at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 18. This appeal is accordingly dismissed, with the modification in the Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.