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2018 DIGILAW 2731 (JHR)

Sushil Bhengra v. State Of Jharkhand

2018-12-12

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 24.11.2008 and Order of sentence dated 27.11.2008, passed by the learned Additional Sessions Judge, F.T.C., Simdega, in S.T. No. 42 of 2006, 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 with a fine of Rs. 25,000/-, for the said offence. 3. The prosecution case was instituted on the basis of written report addressed to the Incharge of Police Out Post Girda, under Bano Police Station, District Simdega, on 8.12.2005, by the informant Jageswar Nayak, stating therein that on the previous date, i.e., on 07.12.2005 at about 6:00 P.M., in the evening, his brother Mahabir Nayak was standing outside his house, when the accused Sushil Bhengra came there armed with tangi, and assaulted his brother by blunt portion of the tangi, causing his death at the spot. It is stated that few days prior to the occurrence, the accused had assaulted and injured the bull of the deceased and he was also not allowing the deceased to take water from his well, due to which there was some dispute between both of them, and for those disputes, he was killed. On the basis of the written report given by the informant, Bano P.S. Case No. 36 of 2005, corresponding to G.R. No. 363 of 2005, was instituted against the sole accused, for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted 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, thirteen witnesses were examined by the prosecution, including the I.O., and Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-1 Jageswar Nayak is the informant in the case and brother of the deceased. In course of trial, thirteen witnesses were examined by the prosecution, including the I.O., and Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-1 Jageswar Nayak is the informant in the case and brother of the deceased. He has stated that the occurrence had taken place about one year ago on a Wednesday, at about 6:00 P.M., in the evening, when Sushil Bhengra assaulted his deceased brother Mahabir Nayak by the blunt portion of tangi repeatedly, badly injuring him, due to which he died. He has stated that prior to the occurrence, the accused had assaulted and injured the bull of the informant, due to which the bull had become immobile, for which there was dispute between both of them. He gave the written report, which was written by the Choukidar, and he had put his thumb impression on the written report, after the same was read over and explained to him. He has identified the accused in the Court. In his cross examination, he has stated that he is the younger brother of the deceased, and his house is situated by the side of the house of the deceased. He has stated that at the time of occurrence, darkness was only setting in. He has stated that out of fear, he did not intervene in the occurrence. He has denied the suggestion of giving false evidence. 6. P.W.-2 Shanti Kumari is the daughter of the deceased, P.W.-3 Chandra Bhan Nayak is another brother of the deceased, P.W.-4 Chunai Devi is the wife of the informant, P.W.-5 Malawati Devi is the wife of the deceased, and P.W.-9 Bilkan Bhengra is the co-villager, and all these witnesses have fully supported the case of the prosecution as eye witnesses to the occurrence, stating that they had seen the accused assaulting the deceased by the blunt portion of tangi, due to which the deceased died at the spot. P.W.-2 Shanti Kumari, the daughter of the deceased has also stated that though evening was setting in, at the time of occurrence, but everything was quite visible. There is nothing in the cross-examinations of these eyewitnesses to discredit their testimony. 7. P.W.-2 Shanti Kumari, the daughter of the deceased has also stated that though evening was setting in, at the time of occurrence, but everything was quite visible. There is nothing in the cross-examinations of these eyewitnesses to discredit their testimony. 7. P.W.-6 Jagan Nayak is the co-villager of the deceased, and he has stated that upon hearing the noise, he rushed towards the place of occurrence and saw that due the assaults made by the accused by tangi, the deceased had fallen down in badly injured condition, who died at the spot. He has stated that it was time of Sunset when the occurrence had taken place, and by the time he reached the place of occurrence, the accused was still there with the tangi in his hand. In his cross-examination he has stated that he had not seen the accused assaulting the deceased, rather he reached when the deceased had fallen down. 8. P.W.-7 Nakul Singh and P.W.-8 Raghupati Nayak have stated that upon hearing the noise they rushed towards the place of occurrence, and saw the accused fleeing away with tangi. They saw the dead body of the deceased at the place of occurrence. 9. P.W.-11 Budhu Nayak and P.W.-12 Gokul Nayak are the hearsay witnesses, who have stated that upon hearing about the occurrence, they went there and saw the dead body of the deceased. They have supported the case as hearsay witness, stating that they were informed by the wife of the deceased that the accused Sushil Bhengra had assaulted the deceased by tangi, causing his death. Both these witnesses are the witnesses to the inquest report of the dead body, and they have identified their signatures on the inquest report, which were marked as Exts.-2 and 2/1 respectively. 10. P.W.-10 Dr. Kishore Kullu had conducted the post-mortem examination on the dead body of the deceased on 09.12.2005, and had found the following injuries:- On external examination:- (i) Abrasion 3" x 2" with bruise same over the frontal portion of neck with defuse swelling. (ii) Lacerated wound 1 " x " over posterior part of left ear. On internal examination:- (i) On opening of the skull cavity fracture base of cranial fossa with sub-dural haematoma of left temporal area of brain. (ii) Lacerated wound 1 " x " over posterior part of left ear. On internal examination:- (i) On opening of the skull cavity fracture base of cranial fossa with sub-dural haematoma of left temporal area of brain. (ii) Fracture 5th and 6th cervical vertebra with hyoid bone and fracture of tracheal cartilage with diffusion of blood over anterior neck muscles and subcutaneous tissue. (iii) Fracture 2nd and 3rd left chest ribs with collection of blood over left plural cavity and fracture 2nd rib right side of chest. (iv) Brain and meninges were intact. No laceration. Lungs, liver, spleen, kidney were congested Heart right side- empty, left side - black coloured blood was present in small amount. He has stated that all the injuries were ante-mortem in nature, caused by hard, blunt and heavy object, which could be the back portion of the tangi. He has stated that cause of death was due to asphyxia and comma due to the head injury and the above mentioned injuries. He has identified the post-mortem report to be in his pen and signature, which was marked as Ext.-1. 11. P.W.-13 Anand Gorai is the Investigating Officer of the case. This witness has stated that on 08.12.2005 he was posted as Incharge of Girda O.P. of Bano Police Station. At about 8.15 A.M., in the morning there was an information by way of rumour that someone was murdered at village Jorpunda. He proceeded to the place of occurrence along with the Choukidar, where he reached at about 9:00 A.M. He saw the dead body of the deceased in the courtyard of the house of the deceased, and the brother of the deceased Jageswar nayak gave a written report, which was written by the Choukidar. He has proved the written report, which was marked as Ext.-3. He has proved the endorsements thereon which were marked as Exts.-4 and 4/1, and has also proved the formal FIR, which was marked as Ext.-5. He prepared the inquest report of the dead body, which he has proved, and the same was marked as Ext.-6. He has stated that the place of occurrence is an open courtyard in front of the house of the deceased, where the dead body was found, and he was informed that the deceased was assaulted by the blunt portion of the tangi by the accused. He has stated that the place of occurrence is an open courtyard in front of the house of the deceased, where the dead body was found, and he was informed that the deceased was assaulted by the blunt portion of the tangi by the accused. He recorded the re-statement of the informant and the statements of the witnesses. He went to the house of the accused for arresting him, but some problem was created, and the accused was not opening the door, due to which, extra police force had to be called and thereafter the accused was arrested from his house. The accused had also sustained injuries, and he was treated for the same. The injury report of the accused has been proved by this witness, and was marked as Ext.-7. He received the post-mortem report, and after completing the investigation, he submitted the charge sheet. He has identified the accused in the Court. In his cross-examination, he has stated that he had not recorded in the case diary as to how the accused was injured, but for that another case was instituted. He has stated that the accused could be apprehended only after the extra police force was called, and the house of the accused had to be forcibly opened, as the accused was not opening his house. He has denied the suggestion that in course of that scuffle, someone had assaulted the accused by arrow, removing the thatched roof of the house of the accused. He 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. No evidence was adduced by the defence. On the basis of the evidence on record, the appellant has been convicted and sentenced by the Trial Court below, as aforesaid. 13. Learned counsel for the appellant 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, there is admitted enmity between the parties and accordingly, the evidence of the eye witnesses who are mainly family members of the deceased, are doubtful, they being the highly interested witnesses, and it is a case in which the accused ought to have been given at least the benefits of doubt. 14. 14. Learned counsel for the state on the other hand has opposed the prayer, submitting that all the prosecution witnesses have fully supported the prosecution case. Seven witnesses have supported the prosecution case as eyewitnesses to the occurrence, including the villagers who are not the family members. Two witnesses had seen the accused fleeing away from the place of occurrence, whereas two of them are the hearsay witnesses and had seen the dead body. The ocular evidence of these witnesses is corroborated by the medical evidence of P.W.-10 Dr. Kishore Kullu, and the post-mortem reported proved by him as Ext.-1. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court, worth any interference by this Court. 15. Having heard learned counsels of both the sides and upon going through the evidence on record, we find that prosecution case is fully supported by P.W.-1 Jageswar Nayak, the informant, PW-2 Shanti Kumari, the daughter of the deceased, P.W.-3 Chandra Bhan Nayak, the other brother of the deceased, P.W.-4 Chunai Devi, the wife of the informant, and P.W.-5 Malawati Devi, the wife of the deceased, as eye witnesses to the occurrence, stating that while deceased was outside his house, the accused came and assaulted him by the blunt portion of the tangi causing his death at the spot. In the evidence of these witnesses it has come that the accused had made repeated assaults upon the deceased. Though these witnesses are the family members of the deceased, and may be treated as interested witnesses, but they are the natural witnesses, who were present at their house. The prosecution case is also supported by P.W.-6 Jagan Nayak, who is not the family member of the deceased and he is only a co-villager, who had reached the place of occurrence upon hearing the noise, and had seen the accused at the place of occurrence with the tangi in his hand. He also saw the deceased fallen down in badly injured condition, who died soon thereafter. P.W.-7 Nakul Singh and P.W.-8 Raghupati Nayak are also the independent witnesses, who have stated that upon hearing the noise they rushed towards the place of occurrence, and saw the accused fleeing away with tangi, and they also saw the deceased dead at the spot. He also saw the deceased fallen down in badly injured condition, who died soon thereafter. P.W.-7 Nakul Singh and P.W.-8 Raghupati Nayak are also the independent witnesses, who have stated that upon hearing the noise they rushed towards the place of occurrence, and saw the accused fleeing away with tangi, and they also saw the deceased dead at the spot. Other two witnesses, P.W.-11 Budhu Nayak and P.W.-12 Gokul Nayak are the hearsay witnesses, who reached the place of occurrence, saw the dead body and they were informed about the occurrence by the wife of the deceased. They are the witnesses to the inquest report also. The ocular evidence of these witnesses is fully corroborated by medical evidence of P.W.-10 Dr. Kishore Kullu, and the post-mortem report proved by him, who had found several external and internal injuries on the dead body, caused by hard and blunt substance, which appear to be sufficient in the ordinary course of nature, to cause the death. The number and nature of injuries clearly show that the accused had assaulted the deceased with the intention to cause his death. We are of the considered view, that on the basis of the evidence brought on record, the prosecution has been able to bring home the charge against the accused Sushil Bhengra, beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below, worth any interference by this Court. 16. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 24.11.2008 and Order of sentence dated 27.11.2008, passed by the learned Additional Sessions Judge, Fast Track Court, Simdega, in S.T. No. 42 of 2006, convicting and sentencing the appellant Sushil Bhengra, for the offence under section 302 of the Indian Penal Code, which we hereby, affirm. The appellant Sushil Bhengra is already in custody, undergoing the sentence. 17. The appellant Sushil Bhengra is already in custody, undergoing the sentence. 17. Before parting with this Judgment, we wish to record that we find that P.W.-5 Malawati Devi, the wife of the deceased, is the victim of crime in this case, and she should be duly compensated under the Victim Compensation Scheme, under section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that due compensation may be given to this victim of crime, 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. We do not find any merit in this appeal and the same, is hereby, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.