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2018 DIGILAW 658 (JHR)

Suleman Kullu @ Mangra v. State of Jharkhand

2018-03-21

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. Heard learned amicus curiae appointed by the Court for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 24th April, 2009 and Order of sentence dated 29th April, 2009, passed by the learned Additional Sessions Judge, Fast Track Court, Simdega, in S.T. No. 80 of 2007, 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. 20,000/- for the said offence. 3. The prosecution case was instituted on the fardbeyan of the informant Mariam Kiro, the wife of the deceased Matias Kiro, recorded on 18.04.2007 at 9.20 hours near village Sikariatand, P.S. and District Simdega, wherein it is stated that on 16.04.2007 at about 6.00 p.m. in the evening, the informant was sitting in the courtyard of her house with her husband Matias Kiro, who had returned after the day's work. One Flora Kullu was also sitting there and all of them were talking. In the meantime, the accused Suleman Kullu @ Mangra came there armed with tangi, which he was concealing behind his back, and he gave an assault upon Flora Kullu, but the assault missed and Flora Kullu was not injured. Thereafter, he assaulted her husband by tangi on his back and as soon as her husband turned back to see him, he assaulted her husband by tangi near his ear causing bleeding injury, whereupon her husband fell down writhing in pains. The informant tried to apprehend the accused, but he managed to flee away leaving the axe embedded in the injury of her husband. Her husband died at the spot. She had also brought the axe with her, while she was taking the dead body of her husband to the Police Station. On the basis of the fardbeyan, Simdega P.S. Case No. 60 of 2007, corresponding to G.R. No. 147 of 2007, was instituted for the offence under Section 302 of the India Penal Code, against the sole accused Suleman Kullu @ Mangra, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. On the basis of the fardbeyan, Simdega P.S. Case No. 60 of 2007, corresponding to G.R. No. 147 of 2007, was instituted for the offence under Section 302 of the India Penal Code, against the sole accused Suleman Kullu @ Mangra, 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, the prosecution has examined in all twelve witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. Out of the material witnesses examined, PW-1 Boronica Kullu, is the wife of the accused himself, and she was only tendered by the prosecution. PW-2 Balasius Kiro, PW-3 Jodhan Nayak, PW-4 Agastus Kullu, PW-5 Johnsan Kiro, PW-6 Marshal Bilung, PW-7 Channu Baa and PW-8 Bhimsent Kiro, are only the hearsay witnesses, who were informed about the occurrence. PW-3 Jodhan Nayak and PW-7 Channu Baa are also the witnesses of the production-cum-seizure list of producing the axe, on which signature of PW-3 Jodhan Nayak was marked as Ext.-1 on his identification, whereas PW-7 Channu Baa had only put his LTI on it. PW-8 Bhimsent Kiro is also the witness to the inquest report of the dead body, on which he has proved his signature, which was marked Ext.-1/1. 6. PW-10 is Mariam Kiro, the informant and the wife of the deceased, as also an eye witness to the occurrence. She has fully supported the prosecution case stating that the occurrence had taken place about one year eleven months ago on a Monday at about 6.00 p.m. in the evening. She was sitting along with her husband and Flora Kullu, at her house and they were talking, when the accused Suleman Kullu @ Mangra came there and first he assaulted Flora Kullu, but the assault missed and thereafter, he assaulted her husband by tangi on his back, and he again assaulted her husband near his ear and the axe was embedded in the jaws of her husband. When she tried to save her husband, she was pushed away and the accused fled away towards the forest. When she tried to save her husband, she was pushed away and the accused fled away towards the forest. Her husband died at the spot. She has stated that as it was becoming night, she could not go to the Police Station and on the next day also, in the absence of any transportation facility, she could not go to the Police Station. On Wednesday, she was bringing the dead body of her husband to Simdega, when in the way she met the police at Sikariatand village, where her fardbeyan was recorded, which was read over to her and she put her signature on the fardbeyan. She had identified her signature on the fardbeyan, which was marked Ext.-1/2. She had also identified her signature on the inquest report of dead body, which was marked Ext.-1/3. She has stated that she had produced the blood stained axe to the police and she has proved her signature on the production-cum-seizure list, which was marked Ext.-1/4. She has identified the accused in the Court. In her cross-examination, she has stated that the accused is her brother-in-law (dewar) in the village relationship, and his house is situated at a distance of about 10 to 15 steps from her house. He is also the own elder brother-in-law of Flora Kullu, but their houses are separate. She had no enmity with the accused from before. At the time of occurrence the night was setting in, but it was still not dark. She has also stated that there was no injury on the back of her husband due to the assault made on his back. She has denied the suggestion of giving false evidence. 7. PW-9 Flora Kullu is the other eye witness to the occurrence, who was present in the courtyard at the time of occurrence. She has stated that the occurrence had taken place few months less than two years, on a Thursday at about 6.00 p.m. She was in the house of Mariam Kiro, when Suleman Kullu @ Mangra came there and he assaulted her by axe, but she was not injured. Thereafter, he assaulted Matias Kiro near his ear, causing bleeding injury. The axe was embedded in the injury and the accused fled away leaving the axe there. Matias Kiro died at the spot. She has identified the accused in the Court. Thereafter, he assaulted Matias Kiro near his ear, causing bleeding injury. The axe was embedded in the injury and the accused fled away leaving the axe there. Matias Kiro died at the spot. She has identified the accused in the Court. In her cross-examination, she has stated that the accused is her elder brother-in-law. She has also stated that at the time of occurrence the night was setting in, but it was not dark yet and everything was visible. She has also stated that she had no enmity with the accused and she has no knowledge as to why the accused wanted to assault her and had committed the murder of the deceased. She has denied the suggestions that she is not the eye witness to the occurrence and to have given the false evidence. 8. PW-11 is Dr. Christ Anand Xaxa, who had conducted the post-mortem examination on the dead body of the deceased on 18.04.2007, and had found the following injuries:- (i) One sharp cut injury 4” x 2” x bone deep present on left side of head. The injury extending from lower part of left ear pinna to left side of Maxillary bone. (ii) On internal examination, there was fracture of left side of Mandible and Maxillary bone and left temporal bone. There was hematoma present, brain matter was seen from left temporal area. Heart both chamber empty. Lungs pale, stomach contained small food particles. Small intestine contained digested food and gasses, large intestine contained fecal matter and gasses. Liver, spleen and kidney pale. Urinary bladder empty. 9. This witness has stated that the time elapsed since death was within 3 to 4 days and in his opinion, the injury was ante-mortem in nature, caused by sharp cutting object like tangi. The death was caused due to the head injury. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.-2. 10. PW-12 is Laliteswar Chawdhary, who is the I.O. of the case. This witness has stated that on 17.04.2007 he was posted at Simdega Police Station and in the night at about 10.10 p.m. there was an information that in the village Haldibera one person was murdered. The information was entered into the Station Diary and thereafter, they proceeded towards the place of occurrence. This witness has stated that on 17.04.2007 he was posted at Simdega Police Station and in the night at about 10.10 p.m. there was an information that in the village Haldibera one person was murdered. The information was entered into the Station Diary and thereafter, they proceeded towards the place of occurrence. In the morning, they reached near village Sikariatand, when they saw the dead body of the deceased being brought by the villagers. The Officer-in-charge of the Police Station recorded the fardbeyan of the informant Mariam Kiro at that place and he has identified the fardbeyan to be in the handwriting and signature of the Officer-in-Charge of the Police Station, which was marked Ext.-3. He has also proved the signature and the endorsement made by the Officer-in-charge on the fardbeyan, which were marked Ext.-3/1 and 3/2. The inquest report of the dead body was prepared at that place itself, in the presence of the witnesses and he has proved the inquest report also, which was marked Ext.-4. He has stated that Mariam Kiro also produced a blood stained tangi and a production-cum-seizure list was prepared, which also he has proved and the same was marked Ext.-5. He has also proved the dead body challan which was marked Ext.-6. The dead body was sent for post-mortem examination. He has also proved the formal F.I.R., and the same was marked Ext.-7. He has stated that he had visited the place of occurrence at about 1.00 p.m. in the afternoon, where he had again recorded the re-statement of the informant. He inspected the place of occurrence and he has detailed the place of occurrence in his evidence. He has stated that the place of occurrence is situated in a forest surrounded by hills and it is difficult to reach there. A river is also required to be crossed for reaching the place of occurrence and there is no means of transportation for reaching the place of occurrence, which could be reached only on foot. He recorded the statements of the other witnesses. He received the post-mortem report and he submitted the charge-sheet against the accused. He had also arrested the accused on 19.04.2007. He has identified the accused in the Court. He recorded the statements of the other witnesses. He received the post-mortem report and he submitted the charge-sheet against the accused. He had also arrested the accused on 19.04.2007. He has identified the accused in the Court. In his cross-examination, he has stated that for going to the place of occurrence, first they had gone to Kishalpur and from there they crossed the river and then reached the place of occurrence on foot. He has denied the suggestion of making faulty investigation. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No defence evidence was adduced in the case. On the basis of the evidence on record, the sole appellant has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code. 12. Learned amicus curiae appearing for the appellant has submitted that the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts. It is pointed out by the learned amicus curiae that even though the occurrence had taken place on 16.04.2007 and the post-mortem examination was conducted on 18.04.2007, but the Doctor has stated that the time elapsed since death was 3 to 4 days, which is not matching with the time of occurrence. Learned amicus curiae has also pointed out that the case is supported by only two eye witnesses, who are the close relatives of the deceased and they are highly interested witnesses. Still, there are discrepancies in their evidence, in as much as, PW-9 Flora Kullu has stated that the occurrence had taken place on a Thursday, whereas PW-10 Mariam Kiro has stated that the occurrence had taken place on a Monday. Learned amicus curiae further submitted that though there is allegation of making two assaults on the deceased, but the fact remains that only one injury was found on the dead body of the deceased. It is also submitted by learned amicus curiae that even though the occurrence is said to have taken place on 16.04.2007, but the F.I.R. was lodged belatedly on 18.04.2007 and the false implication of the accused cannot be ruled out. Learned amicus curiae accordingly, submitted that due to these discrepancies in the evidence, the appellant was entitled for the benefits of doubt. 13. Learned amicus curiae accordingly, submitted that due to these discrepancies in the evidence, the appellant was entitled for the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer submitting that the prosecution has been able to establish the charge against the accused beyond all reasonable doubts, in as much as, the case is fully supported by the two eye witnesses, PW-9 Falora Kullu and PW-10 Mariam Kiro, who were present at the place of occurrence. The other witnesses were not present at the place of occurrence, but they reached the place of occurrence upon hearing about the occurrence and they have also supported the prosecution case stating that they were informed that the accused had assaulted the deceased causing his death. Some of them are also the witnesses to the seizure list of the blood stained axe and the inquest report of the dead body. Learned counsel submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-11 Dr. Christ Anand Xaxa, who had found the injury on the head of the deceased, caused by the sharp cutting weapon such as axe, which was sufficient in the normal course of nature to cause the death. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment 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 occurrence had taken place on 16.04.2007 in the village at about 6.00 p.m. The village is surrounded by forest and hills and it is difficult to reach the place of occurrence. The F.I.R., which is proved as Ext.-7, clearly shows that the place of occurrence is situated at a distance of 40 k.m. from the Police Station. The I.O. has also stated that it is difficult to reach the place of occurrence in absence of any means of transportation. The informant PW-10 Mariam Kiro has also stated that on 16.04.2007, as it was night, she could move out from the village and on 17.04.2007 also, she could go to the Police Station in absence of any means of transportation, and she could go only on 18.04.2007, when her fardbeyan was recorded in the way. The informant PW-10 Mariam Kiro has also stated that on 16.04.2007, as it was night, she could move out from the village and on 17.04.2007 also, she could go to the Police Station in absence of any means of transportation, and she could go only on 18.04.2007, when her fardbeyan was recorded in the way. From this evidence we find that the delay in lodging the F.I.R. is fully explained. PW-9 Flora Kullu and PW-10 Mariam Kiro have fully supported the prosecution case as eye witnesses to the occurrence, stating that it was this accused who had assaulted the deceased by axe causing injuries near his ear. The informant PW-10 Mariam Kiro has also stated that one blow was given on the back of the deceased, but no injury was caused thereby. We thus, find from the evidence on record that there was repetition of blow on the deceased by the accused and ultimately he was assaulted by the sharp edge of the axe, causing the injury extending from lower part of the left ear pinna to left side of Maxillary bone. This clearly shows that the deceased was assaulted by the accused with the intention to cause his death. The Maxillary, Mandible and left Temporal bones were found fractured and the brain matter could be seen from the left temporal area, having full of hematoma. The injury was sufficient in the ordinary course of nature to cause the death. Though the motive is not proved in this case, but in view of the fact that two eye witnesses have supported the prosecution case stating that it was this accused who had assaulted the deceased by axe, and there being nothing in the cross-examinations of these eye witnesses to discredit their testimony, the motive becomes immaterial. The submission of learned amicus curiae that the time of occurrence is not supported by the post-mortem report, is also not of much importance in the present case, as the occurrence had taken place in the month of April, and two days had already elapsed. The Doctor has stated that the time since death was within 3 to 4 days, which fully supports the time of occurrence. The Doctor has stated that the time since death was within 3 to 4 days, which fully supports the time of occurrence. The discrepancy in the evidence of PW-9 Flora Kullu and PW-10 Mariam Kiro, in as much as, one of them has stated that the occurrence had taken place on Thursday and the other has stated that the occurrence had taken place on Monday, is also not of much importance, as both of them are village ladies and there may be some difficulty in remembering the exact day. However, the fact that the occurrence had taken place on Monday, is also supported by the F.I.R., which shows that it was recorded on Wednesday, after two days. Both these witnesses, i.e., PW-9 Flora Kullu and PW-10 Mariam Kiro are consistent in their evidence that the accused first tried to assault Flora Kullu which assault was missed, and thereafter the deceased was assaulted by the accused. There is no inconsistency in the manner of occurrence as described by both these witnesses. Since their evidence is also supported by other hearsay witnesses and is also fully corroborated by the medical evidence of PW-11 Dr. Christ Anand Xaxa and the post-mortem report proved by him as Exhibit-2, 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 passed by the Trial Court below, finding the appellant guilty, and convicting and sentencing him for the offence under Section 302 of the Indian Penal Code. 15. For the foregoing reasons we do not find any illegality in the impugned Judgment of conviction dated 24th April, 2009 and Order of sentence dated 29th April, 2009, passed by the learned Additional Sessions Judge, Fast Track Court, Simdega, in S.T. No. 80 of 2007, convicting and sentencing the appellant Suleman Kullu @ Mangra, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant is already in custody undergoing the sentence. 16. Before parting with this Judgment, we must record that we have been given able assistance by Mrs. Alpana Verma, learned amicus curiae in the case. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. The appellant is already in custody undergoing the sentence. 16. Before parting with this Judgment, we must record that we have been given able assistance by Mrs. Alpana Verma, learned amicus curiae in the case. 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, for the needful. 17. We also recommend that the victim PW-10 Mariam Kiro, who is the widow of the deceased, if alive, be appropriately compensated under the victim compensation scheme, under Section 357-A of the Cr.P.C., for which appropriate steps be taken by the Member Secretary, Jharkhand State Legal Services Authority, with the help of concerned District Legal Services Authority. Let a copy of this Judgment be also 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 accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. Appeal dismissed.