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2018 DIGILAW 873 (JHR)

Lagan Gope v. State of Jharkhand

2018-04-18

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 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 29th May, 2006 and Order of sentence dated 30th May, 2006, passed by the learned Additional Sessions Judge, F.T.C. No.-I, Gumla, in S.T. No. 312 of 2004, whereby, the 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 for the said offence. 3. The prosecution case was instituted on the fardbeyan of the informant Pacho Devi, the wife of the deceased Dhirja Gope, recorded on 09.08.2004, at about 12.30 P.M., at her village Kalinga Karanj Toli, P.S. and District Gumla. She has stated that on the previous day, i.e., on 08.08.2004, her husband had gone to the market for selling radish at about 3.00 P.M. The informant also went to the agriculture field for sowing paddy, and she returned back to her house at about 6.00 P.M., but her husband had not returned till that time. She heard that her husband had a quarrel with his younger brother Lagan Gope. The informant searched her husband, but she could not find him and thereafter, she went to sleep as there used to be quarrel between both the brothers. At about 10.00 P.M., she heard the alarm raised by her husband, whereupon she came out of her house and saw the accused Lagan Gope assaulting her husband, giving repeated blows by axe on his head. Her husband fell down. When the accused saw the informant, he chased the informant also threatening to kill her, whereupon she entered her house and closed the door and she could not do anything due to fear. In the morning also, the accused was roaming with the axe in his hand saying that he has killed his brother. She also informed the persons, who had assembled there about the occurrence, and even at that time, whenever she wanted to go near the dead body, the accused used to threaten her. When the villagers assembled there, he was apprehended by the villagers and was kept confined near tamarind tree. Thereafter she saw the dead body of her husband with multiple injuries caused by axe, due to which he had died. When the villagers assembled there, he was apprehended by the villagers and was kept confined near tamarind tree. Thereafter she saw the dead body of her husband with multiple injuries caused by axe, due to which he had died. She has stated that there used to be quarrel between her husband and her brother-in-law and she claimed that the accused had assaulted her husband by axe causing his death at the spot. On the basis of the fardbeyan of the informant, Gumla P.S. Case No. 155 of 2004, corresponding to G.R. No. 498 of 2004, was instituted for the offence under Section 302 of the Indian Penal Code, against the sole accused Lagan Gope, and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the sole 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, eight witnesses have been examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. has not been examined in the case and as such, the fardbeyan, seizure list and the inquest report have been proved by a formal witness PW-8 Kuldeep Singh, and they were marked as Exts. 4, 5 and 6 respectively. Out of the material witnesses examined by the prosecution, PW-6 Bechu Sahu, a neighbour and PW-7 Smt. Munni Devi, the sister of the deceased and the accused both, have turned hostile and have not supported the prosecution case against the accused, though PW-6 Bechu Sahu has stated that he had seen the dead body with injuries on the neck, and PW-7 Munni Devi has stated that she had heard about the murder of her brother at her in-laws' place. 5. PW-4 Smt. Pacho Devi is the informant in the case and the wife of the deceased. This witness has stated that the occurrence had taken place about eleven months ago when in a night of Sunday, her husband was murdered at about 9.00 P.M.-10.00 P.M. The occurrence had taken place at a distance of about 10 steps from her house and at that time she was present in the house. This witness has stated that the occurrence had taken place about eleven months ago when in a night of Sunday, her husband was murdered at about 9.00 P.M.-10.00 P.M. The occurrence had taken place at a distance of about 10 steps from her house and at that time she was present in the house. Upon hearing the screams of her husband, she rushed to the place and found that Lagan Gope was assaulting her husband by axe. She tried to save her husband, but Lagan Gope chased her with the axe due to which she entered her house along with her child. She has also stated that she also raised the alarm whereupon the people nearby assembled there. In the next morning, the villagers took the axe from the accused Lagan Gope and they confined the accused near a tree. Thereafter, she went near the dead body and saw multiple injuries on the dead body caused by axe and the dead body was lying in the pool of blood. When the police arrived at the place of occurrence, she gave her fardbeyan, on which she had put her thumb impression. The police also prepared the inquest report, upon which also, she had put her thumb impression. She has stated that the accused used to quarrel with her husband. She has identified the accused in the Court. In her cross-examination, this witness has stated that she had seen the occurrence in the light of lantern. She has also stated in her cross-examination that at the time of occurrence the burning lantern was there in her house, and there was no electricity in the village. Her attention was drawn towards some statements, but those are not related to the assault made upon the deceased by the accused. She has also stated that her father-in-law and mother-in-law are still alive. She has stated that at the time of occurrence, she was inside her house and she came out of her house upon the alarm raised by her husband and she had reached near the place where her husband was being assaulted. She has also stated that in the morning the accused was behaving like an unsound person. She has denied the suggestion to have falsely implicated the accused. 6. She has also stated that in the morning the accused was behaving like an unsound person. She has denied the suggestion to have falsely implicated the accused. 6. PW-2 Mahesh Gope @ Maheshwar Gope, PW-3 Lalita Devi and PW-5 Budhwa Gope, are the hearsay witnesses who had reached the place of occurrence in the morning and they had seen the dead body of the deceased with multiple bleeding injuries. PW-2 Mahesh Gope has also stated that he had seen the accused Lagan Gope with the axe in his hand and he is also the witness to the seizure of blood stained soil and the axe from the place of occurrence. He has stated that he had put his thumb impression on the seizure list. He is also a witness to the inquest report on which also he had put his thumb impression. PW-5 Budhwa Gope is also the witness to the seizure of blood stained axe and has stated that the police had seized the blood stained axe from the place of occurrence in his presence and had prepared the seizure list. He has identified his signature on the seizure list, which was marked Ext.2. He has also proved his signature on the fardbeyan, which was marked Ext.3. These witnesses have also stated that they were informed that the accused Lagan Gope had committed the murder of the deceased and they have admitted in their cross-examination that they are not the eye witnesses to the occurrence. 7. PW-1 is Dr. Ajit Kumar Agarwal, who had conducted the post-mortem examination on the dead body of the deceased on 09.08.2004, and had found the following ante-mortem injuries on the dead body:- (i) One incised wound 4” x 2” x 2” brain deep over anterior part of right side on parietal region of head with fracture of parietal bone and laceration of brain and meninges with collection of blood inside the cranial cavity. (ii) One incised wound of about 5” x 2” x ½” brain deep in sagittal plane over right side of skull with fracture of parietal bone with laceration of brain and meninges with collection of blood inside cranial cavity. (iii) One incised wound of about 4” x 2” x 2” over right side of neck with laceration of soft tissues, great vessels, with partial cut of trachea and oesophagus. (iii) One incised wound of about 4” x 2” x 2” over right side of neck with laceration of soft tissues, great vessels, with partial cut of trachea and oesophagus. (iv) One incised wound 3” x 2”x 1” at the base of injury No.(iii) with laceration of soft tissues and blood vessels. (v) One incised wound 4” x 1 ½” x 1” vertical over right side of occipital mastoid region behind right ear with laceration of soft tissues with cutting of underlying bones. This witness has stated that Injuries Nos. (i), (ii), (iii) and (iv) were sufficient to cause the death in ordinary course of nature, either singly or in combination, and the cause of death was hemorrhage and shock due to the blood loss and brain damage. He has identified the post-mortem report to be in his pen and signature which was marked Ext. 1. 8. 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 witness was examined in the case. On the basis of the evidence on record, the Trial Court below has found the appellant guilty, and convicted and sentenced him for the offence, as aforesaid. 9. Learned counsel for the appellant has submitted that the impugned Judgment passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution case is supported by only one eye witness, i.e., PW-4 Pacho Devi, the wife of the deceased, who is a highly interested witness. Learned counsel submitted that no independent witness has supported the prosecution case, and the other witnesses who have supported the case as the hearsay witnesses, are closely related to the informant and the deceased. Learned counsel accordingly, submitted that it is a case in which the evidence of the sole interested eye witness is to be examined with due care and caution. Learned counsel accordingly, submitted that it is a case in which the evidence of the sole interested eye witness is to be examined with due care and caution. It is further submitted by learned counsel that the axe, allegedly seized at the place of occurrence, had not been produced in the Court and there is no seizure of the lantern by the police, and even the I.O. has not been examined in the case, and as such, the defence has been vitally prejudiced due to non-examination of the I.O. Learned counsel accordingly, submitted that it is a fit case in which even though the wife of the deceased has supported the prosecution case as eye witness to the occurrence, but the accused appellant ought to have been given the benefits of doubt. 10. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-4 Pacho Devi, the wife of the deceased, as an eye-witness to the occurrence and she has stated that she had seen the accused giving repeated blows on the head of the deceased. The occurrence had taken place at dead night in the village at about 9.00 P.M. to 10:00 P.M., just in front of the house of the deceased and the informant, and as such, the informant is the natural eye-witness to the occurrence. She has also stated that at the time of occurrence, she had gone up to the place where her husband was being assaulted and as such, even though it was night at the time of occurrence, but the identification of the accused, who is the own brother-in-law of the informant, cannot be doubted. Learned counsel submitted that the other witnesses have also supported the prosecution case as hearsay witness and they had also seen the dead body of the deceased with multiple bleeding injuries caused by axe. P.W.-2 Mahesh Gope @ Maheshwar Gope has stated that he had also seen the accused armed with axe at the place of occurrence in the morning. The ocular evidence of these witnesses is fully supported by the medical evidence of P.W.-1 Dr. Ajit Kumar Agarwal, who had found five sharp cut injuries on the head and neck of the dead body of the deceased, which were sufficient to cause death in ordinary course of nature. The ocular evidence of these witnesses is fully supported by the medical evidence of P.W.-1 Dr. Ajit Kumar Agarwal, who had found five sharp cut injuries on the head and neck of the dead body of the deceased, which were sufficient to cause death in ordinary course of nature. Learned counsel submitted that in the present case no prejudice has been caused to the defence due to non-examination of the I.O., and the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. 11. Having heard learned counsels for both the sides and upon going through the record, we find that though the case is supported by the sole eye-witness P.W.-4 Smt. Pacho Devi, but the fact remains that the occurrence had taken place just in front of her house in the dead night in the village and she is the natural eye witness to the occurrence. She has stated that upon hearing the alarm of her husband, she came out of the house and saw the accused assaulting her husband by axe giving repeated blows on his head. In her examination-in-chief she has not stated about the source of light, which has been taken by the defence in her cross-examination, and she has stated that she had seen the occurrence in the light of the lantern. She has also stated in her cross-examination that at the time of occurrence the burning lantern was there in her house, and there was no electricity in the village. Even otherwise, the identification of the accused, who is the own brother-in-law of the informant, cannot be doubted. There is no cross-examination of this witness regarding the statement made by her before the police about the manner of occurrence, that she had seen the accused assaulting the deceased, giving repeated blows by axe, rather, her attention was drawn only towards such statements which did not relate to the manner of occurrence of the case. As such, even if the I.O. has not been examined in the case, but no prejudice can be said to be caused to the defence due to non-examination of the I.O., as there was no cross-examination with regard to the manner of assault on the deceased by the accused, or with regard to the witness being the eye-witness to the occurrence. As the I.O. has not been examined in the case, we have also looked into the case diary and we find from the case diary that the accused had been taken into custody by the police from near the tamarind tree, where it is stated by P.W.-4 Smt. Pacho Devi that the villagers had kept the accused confined in the morning. The fact about the seizure of the blood stained axe is also stated by P.W.-5 Budhwa Gope, who is the witness to the seizure list and he has proved his signature on the seizure list, which was marked Ext. 2. As such, the non-production of the axe in the Court due to non-examination of the I.O., in our considered view, is not fatal to the prosecution. The other witnesses, namely, P.W.-2 Mahesh Gope @ Maheshwar Gope, P.W.-3 Lalita Devi and P.W.-5 Budhwa Gope had also seen the dead body on the next day morning with multiple bleeding injuries and they were also informed about the occurrence that the appellant Lagan Gope had committed the murder. P.W.-2 Mahesh Gope @ Maheshwar Gope had also seen the accused with axe in his hand. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-1 Dr. Ajit Kumar Agarwal and the post-mortem report proved by him as Ext.1, which shows that there were five sharp cut injuries on the head and neck of the dead body of the deceased, causing laceration of brain and meninges with collection of blood inside the cranial cavity, and cutting the blood vessels in the neck, with partial cut of trachea and oesophagus as well. The injuries were sufficient in the ordinary course of nature to cause the death of the deceased. 12. In the facts of this case, even though the entire prosecution story is based on the evidence of the sole eye-witness P.W.-4 Smt. Pacho Devi, but we find her evidence to be quite trustworthy, and being fully corroborated by the medical evidence of P.W.-1 Dr. Ajit Kumar Agarwal, and the post-mortem report proved by him as Ext. 1, on the basis of which conviction of the accused could safely be based. 13. Ajit Kumar Agarwal, and the post-mortem report proved by him as Ext. 1, on the basis of which conviction of the accused could safely be based. 13. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 29th May, 2006 and Order of sentence dated 30th May, 2006, passed by the learned Additional Sessions Judge, F.T.C. No.-I, Gumla, in S.T. No. 312 of 2004, convicting and sentencing the appellant Lagan Gope, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant Lagan Gope is already in custody undergoing the sentence. 14. 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.