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2018 DIGILAW 49 (JHR)

Willium Kir v. State Of Jharkhand

2018-01-06

ANANDA SEN, RAJESH SHANKAR

body2018
JUDGMENT Rajesh Shankar, J. - The present appeal has been filed against the judgment of conviction and order of sentence dated 19.06.2008 and 20.06.2008 respectively passed in Sessions Trial No. 33 of 2006, whereby the appellant has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs. 5,000/- and in default thereof further S.I for two months. 2. The brief facts of the case as stated in the fardbeyan of the informant-Etwa Manjhi (PW-1) recorded on 07.11.2005 at about 9.00 am is that on 05.11.2005, his wife Gomati Manjhiyain PW-3) alongwith Beronica Kiro (deceased) had gone to harvest paddy crops. At about 3 pm, Gomati Manjhiyain and Beronica Kiro were sitting in the field. In the meantime, the husband the deceased namely, Willium Kiro (appellant) came there holding a Tangi and assaulted tree-four times on the head of his wife Beronica Kiro with the intention to kill her and consequently, she became unconscious. Thereafter. Kewas taken to the hospital. On 06.11.2005, she was referred to I.G.H. Hospital Rourkela for letter treatment. 3. On the basis of the fardbeyan, an F.I.R being Jaldega (Bansjore O.P.) P.S Case No. 44 of 2005 was registered on 07.11.2005 under Sections 324, 326 and 307 IPC. However, in course of treatment, Beronica Kiro died on 08.11.2005 at I.G.H. Hospital, Rourkela and thus, Section 302 IPC was added, vide order dated 11.11.2005. After investigation, the charge-sheet was submitted and the charge was framed against the appellant under Section 302 IPC and tried accordingly. 4. Mr. Naveen Kumar Jaiswal, the learned counsel appearing for the appellant while assailing the impugned judgment submits that there is delay in lodging of the F.I.R. In present case, the occurrence took place on 05.11.2005 at about 3.00 pm, however, the F.I.R was lodged on 07.11.2005 at about 9.00 am and as such, there is inordinate delay in lodging of the F.I.R which is a vital lapse on the part of prosecution. It is further submitted that there are discrepancy and variance in the number of injuries mentioned in the injury report vis-a-vis the post-mortem report. Though in the injury report, the doctor found altogether four incised wounds and one bruise, however, as per the post-mortem report, the doctor found only three incised wounds. It is further submitted that there are discrepancy and variance in the number of injuries mentioned in the injury report vis-a-vis the post-mortem report. Though in the injury report, the doctor found altogether four incised wounds and one bruise, however, as per the post-mortem report, the doctor found only three incised wounds. The learned trial court committed an error in convicting the appellant on the basis of the testimony of the sole eye-witness i.e., PW-3. The learned trial court also did not appreciate that the informant i.e., the husband of PW-3 had previous enmity with the appellant and as such, he was falsely implicated in the present case and the PW-3 out of her personal vengeance, claiming herself to be the eye-witness to the occurrence, has implicated the appellant as the assailant of the deceased. 5. Mrs. Vandana Bharti, the learned A.P.P, while supporting the impugned judgment of conviction and sentence submits that during the trial, the prosecution witnesses have fully supported the prosecution case. It is further submitted that PW-3 is the eyewitness to the occurrence who has consistently narrated the manner of occurrence and the defence, during the cross-examination, could not draw any major contradiction in her deposition. 6. Heard the learned counsel appearing for the parties and perused the trial court''s record including the evidences adduced during the trial. The prosecution in support of its case, examined altogether nine witnesses. PW-1 - Etwa Manjhi is the informant of the case. Though, he is the hearsay witness on the point of commission of the offence, he has properly supported the contents of the fardbeyan which has been marked as Exhibit-1. PW-2 - Kishore Kullu is a hearsay witness on the point of manner of occurrence. However, during the cross-examination, he deposed that he had seen the appellant fleeing from the place of occurrence. PW-3 - Gomati Manjhiyain is the only eye-witness to the occurrence. She deposed that She alongwith the deceased had gone to harvest paddy. At about 3 pm, she alongwith the deceased was taking rest under the shadow of a tree. In the meantime, the appellant came and gave three-four blow by means of Tangi upon the head of the deceased and consequently, she became unconscious. She further deposed that she raised alarm and then the villagers came. Thereafter, the appellant fled away from the place of occurrence. In the meantime, the appellant came and gave three-four blow by means of Tangi upon the head of the deceased and consequently, she became unconscious. She further deposed that she raised alarm and then the villagers came. Thereafter, the appellant fled away from the place of occurrence. PW-4 - Sudhir Dungdung is also a hearsay witness on the point of manner of occurrence, however, he also deposed that he had seen the appellant fleeing from the place of occurrence from a distance of about 50 feet. PW-5 - Vinay Tete is a hearsay witness. PW-6 - Rajesh Bilung and PW-7 - Mariyanus Soreng are also hearsay witnesses, however, they have proved their signatures on-the inquest report which have been marked as Exhibit-2 & 2/ 1. PW-8 - Sudhir Prasad is the Investigating Officer of the case. He has proved the formal F.I.R and his endorsement for registration of the F.I.R which have been marked as Exhibit-5 & 5/1 respectively. PW- 9-Dr. Sudhir Ranjan Samal is the doctor who conducted the post-mortem on the dead body of the deceased. He has proved the requisition sent by the police which has been marked as Exhibit-7. The post-mortem report has further been proved by him as Exhibit-8. As per the post-mortem report, the PW-7 found three incised wounds on the scalp of the deceased each of 3" in length, one on the parietal region, one on the temporoparietal region and one behind the head. All the injuries were brain deep and anti-mortem in nature. No mark of ligature was detected around the neck. All the viscera were found to be pale and intact. One 7 months female foetus (baby) was also detected in the womb of the deceased. In his opinion, the death occurred due to coma caused by those three head injuries. Time elapsed since death was recorded as 36 hrs to 72 hrs. As per the opinion of PW-9, the said three external head injuries were caused by sharp cutting heavy weapon which might be Tangi (Axe). 7. PW-3 is the main witness to the occurrence. She is the only eye-witness of the case who has consistently narrated the time and manner of occurrence. During her cross-examination also, the PW-3 has specifically deposed that she had seen the alleged occurrence. 7. PW-3 is the main witness to the occurrence. She is the only eye-witness of the case who has consistently narrated the time and manner of occurrence. During her cross-examination also, the PW-3 has specifically deposed that she had seen the alleged occurrence. Though, the defence put suggestion to the PW-3 that due to enmity between her husband (informant) and the appellant, she has falsely deposed against the appellant, yet in support of the above suggestion, the convict/appellant could not draw any major contradiction in her deposition made in examination-in-chief. As per the evidence of the ocular witness (i.e., PW-3), the place of occurrence was the paddy field of the informant where PW-3 and deceased had gone to harvest paddy crops, which also finds support from the evidence of the Investigating Officer (PW-8). There appears to be no reason to disbelieve the testimony of PW-3, who is the sole eye-witness of the offence. Moreover, the doctor (PW-9), who conducted post-mortem has also found three injuries on the head which in his opinion were caused by the sharp cutting weapon that might be a Tangi (axe). PW-9 in his post-mortem report has also corroborated the manner of the occurrence, as has been narrated by PW-3. Moreover, PW-2 and PW-4 are the independent witnesses who have also deposed that they had seen the appellant fleeing away from the place of occurrence. Thus, the said witnesses have also supported the case of the prosecution. It is a settled principle of law that the conviction can be based on the testimony of sole eye-witness, if the evidence of the sole eye-witness is found consistent with the medical evidence. 8. In the case of "Kathi Bliarat Vajsur v. State of Gujarat", reported in (2012) 5 SCC 724 , the Hon''ble Supreme court held as under: 31. This Court in Rakesh v. State of M.P. held: "13. It is a settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved. (Vide State of U.P. v. Hari Chand, Abdul Sayeed v. State of M.P. and Bhajan Singh v. State of Haryana)" 32. When the medical evidence is in consonance with the principal part of the oral ocular evidence thereby supporting prosecution story, there is no question of ruling out the ocular evidence merely the ground that there are some inconsistencies or contradictions in the oral evidence. We are not inclined to agree with Shri Dholakia on this count. 9. In our opinion, the learned trial court rightly came to the conclusion that since the deceased was undergoing treatment from one place to mother, the delay caused in lodging the F.I.R. cannot be fatal to the case of the prosecution. So far as the other argument of the learned counsel for the appellant regarding variance in the injuries mentioned in the injury report and the post-mortem report is concerned, it has rightly been observed by the learned trial court that since the time gap between the two reports were five days, it is quite possible that the bruise might have vanished or the two injuries adjacent to each other might have merged together which were counted as one injury by the doctor (i.e., PW-9), who conducted the post-mortem. We, therefore, do not find any infirmity in the findings of the learned trial court. 10. In the facts and circumstances of the case, we are of the considered view that the learned court below has rightly held the appellant guilty tor the offence punishable under Section 302 IPC. Thus, the impugned judgment of conviction dated 19.06.2008 and the order of sentence dated 20.06.2008 passed by the learned Additional Sessions Judge, F.T.C., Simdega in S.T. No. 33 of 2006 do not warrant interference by this Court. 11. The instant appeal being devoid of merit is accordingly dismissed.