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2018 DIGILAW 62 (JHR)

Sona Nayak v. State of Jharkhand

2018-01-09

H.C.MISHRA, K.P.DEO

body2018
JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 21.11.2006 and Order of sentence dated 23.11.2006, passed by the learned Additional Sessions Judge, F.T.C.-II, Seraikella, in Sessions Trial No. 180 of 2005, whereby the sole accused 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 imprisonment for life and fine of Rs. 5,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Rukhi Nayak, the mother of the deceased, Madhuri Nayak, a female child aged about 6 years, in which she has stated that on 9.10.2005 in the morning, she saw the accused Sona Nayak, who is her neighbour, plucking the Neem twigs (Datun) from her Neem tree, which was objected. Thereafter, the informant was going to take ration at the P.D.S. shop and when she was in her way to the shop, one Sadai Nayak, who is the husband of her sister, came running and informed that the accused, Sona Nayak was cutting his daughter by bhujali, whereupon she ran towards her house and saw the accused fleeing away with the bloodstained bhujali. She saw the dead body of her daughter with sharp cut injuries on her neck. In her fardbeyan, the informant claimed that the accused Sona Nayak had committed the murder of her daughter by bhujali, as he was objected from plucking the Neem twigs in the morning. On the basis of the fardbeyan of the informant, Gamharia P.S. Case No. 103 of 2005, corresponding to G.R. No. 834 of 2005, was instituted for the offence under Section 302 of the Indian Penal Code against the sole accused. 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 Sona Nayak 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. 5. In course of trial, the 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. 6. 5. In course of trial, the 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. 6. P.W. 1-Sadai Nayak is the only eyewitness to the occurrence. This witness has stated that on 9.10.2005 at about 7 A.M. he was going towards the pond and saw the accused present in the house of the informant with bloodstained bhujali and he also saw the daughter of the informant, injured. Thereafter; he ran towards the village and informed the people and he also informed the mother of the deceased, who was going to bring ration, and she returned back. He has stated that by the time, the people assembled, the accused had fled away. He was informed that in the morning there was some altercation for plucking the Neem twigs from the Neem tree. He has also stated that the police visited the place of occurrence. He has identified the accused in the Court. In his cross-examination he has stated that he had not seen the accused making the assaults on the deceased, nor had he seen the altercation between the informant and the accused. There is nothing in his cross-examination to discredit his testimony. 7. All the other material witnesses, P.W.2-Arun Nayak, P.W.3-Rukhi Nayak, the mother of the deceased and the informant of the case, P.W.4-Punnu Nayak and P.W.5-Nando Nayak are the hearsay witnesses and they have stated that the accused Son a Nayak had committed the murder of the deceased child and upon the alarm raised by the Sadai Nayak, they reached the place of occurrence and saw the dead body and they were informed about the occurrence. P.W.3-Rukhi Nayak, the informant has also stated that in the morning, there was some altercation for plucking the Neem twigs (Datun) from her Neem tree. She has also stated that she gave the fardbeyan to the police, whereupon, she had put her thumb impression. She has also identified the accused in the Court. 8. P.W. 7-Akhilesh Kumar Choudhary, who was posted as Tutor, Forensic Medicine, in M.G. Medical College, Jamshedpur, had conducted the post mortem examination on the dead body of the deceased on 9.10.2005 at about 12:45 P.M., and had found the following injuries on the dead body:- Sharp cut:- (1) 7½ cm x 2½ cm x lower jaw line along left lower jaw. (2) 9 cm x 4 cm x bone deep along with upper most neck, front and side. All the tissues in the line of wound inclusive of food pipe severed and 3rd cervical vertebra having sharp cut fracture over body. (3) 6 cm x 2 cm x tracheal lumen over front of mid neck. (4) Oblique superficial bevelled sharp cut over front of upper chest right side 2½ cm x ¼ cm x partial skin thickness and 2 cm x ¼ cm x partial skin thickness. (5) 3 cm x 1 cm x muscle deep, over front of right shoulder. (6) 1 cm x 1/6 cm x 2½ cm x 1/8 cm x ¼th cm x 2½ cm x 1/8th cm all up to partial thickness depth and 2½ cm linear x partial skin thickness depth. This witness has stated that all the injuries were ante mortem in nature caused by sharp cutting weapon and the death was caused due to cut of the throat. He has identified the post mortem report to be in his pen and signature which was marked Exhibit-1. 9. P.W. 6-Nehmiyas Sara is the Investigating Officer of the case. He has stated that on 9.10.2005, he was posted in Garmharia Police Station and he got the rumour that some occurrence had taken place at Raibasa village. He went to the place of occurrence at the house of Rukhi Nayak, along with the Officer-in-charge of the Police Station and the police party, and saw her daughter, Madhuri Nayak, aged about 6 years, dead. There were cut injuries on her neck. The fardbeyan of the mother of the deceased was recorded by the Officer-in-charge of the Police Station and the charge of investigation was given to him. He has given the details of the place of occurrence. He has also stated that he arrested the accused and received the post mortem report and submitted the chargesheet. In his cross-examination, this witness has stated that by the side of the house of the informant, there is a Neem tree, but this fact is not recorded in the case diary. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him and stated that he has been implicated in this case due to enmity. However, no enmity has been proved by the accused in the case. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him and stated that he has been implicated in this case due to enmity. However, no enmity has been proved by the accused in the case. On the basis of the evidence on record, the accused has been 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 cannot be sustained in the eyes of law, in view of the fact that this is the case of the sale eyewitness, who had also stated that he had not seen the accused making assaults on the deceased. It is submitted that P.W.1-Sadai Nayak had only seen the accused, present at the place of occurrence with bloodstained bhujali. It is submitted that all the other witnesses are only the hearsay witnesses and the false implication of the accused cannot be ruled out. It is also submitted by the learned counsel for the appellant that in the present case, the F.I.R. and the inquest report of the dead body have not been proved. Even the weapon of offence has not been recovered. Learned counsel accordingly, submitted that it is a fit case, in which, the appellant ought to have been given the benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that P.W.1-Sadai Nayak has clearly stated that he saw the accused with bloodstained bhujali and the deceased was lying injured at the place of occurrence. Thereafter, the accused fled away. All the witnesses have stated that they were informed by P.W.1-Sadai Nayak about the occurrence and they saw the dead body of the deceased. The oral evidence of these witnesses is fully corroborated by the evidence of P.W.7 Akhilesh Kumar Choudhary, who had found sharp cut injuries on the dead body of the deceased, including on the neck, which was the cause of the death of the deceased. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. 13. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. 13. Having heard the learned counsels for both sides and upon going through the record, we find that the prosecution case is fully supported by P.W.1-Sadai Nayak, who has stated that he had seen the accused with bloodstained bhujali and the deceased child was lying injured there. By the time he called the people, the accused fled away and the deceased died. The other material witnesses have also supported this fact and the evidence of P.W.7-Akhilesh Kumar Choudhary, shows that six ante mortem sharp cut injuries were there on the child, including the sharp cut injuries on her neck. The injuries proved by the Medical Officer are sufficient to cause death in the normal course of nature. Though the I.O. P.W.6-Nehmiyas Bara has not proved the FIR and the inquest report in• the case, but he has clearly stated that the fardbeyan of the mother of the deceased was recorded in his presence by the Officer-in-charge at the place of occurrence, on which the informant had put her thumb impression. This fact is also proved by the informant herself, who was examined as P.W. 3. Though there is no recovery of the weapon of offence, but that is not fatal to the prosecution case. In the facts and circumstances of the case, we are of the considered view that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence, convicting and sentencing the appellant for the offence under Section 302 of the Indian Penal Code. 14. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 21.11.2006 and Order of sentence dated 23.11.2006, passed by the learned Additional Sessions Judge, F.T.C.-II, Seraikella, in Sessions Trial No. 180 of 2005, convicting and sentencing the appellant Sona Nayak for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. The appellant is already in custody undergoing his sentence. 15. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.