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2019 DIGILAW 360 (JHR)

Rimish @ Ramesh Kandulna v. State Of Jharkhand

2019-02-04

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard learned Amicus Curiae and the learned Additional Public Prosecutor. 2. The sole appellant stands convicted by the impugned judgment dated 04.10.2012 passed by the learned court of Additional Sessions Judge, Simdega in Sessions Trial No. 113/2009 for offence committed and punishable under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 25,000/- and to suffer rigorous imprisonment for two years in default in payment of fine, vide order of sentence dated 05.10.2012. The amount of fine was directed to be paid to the informant / widow of the deceased. 3. Investigation started under Jaldega P.S. Case No. 09/2009 against the sole accused Sebastian Kandulna for the offence under section 302 of the Indian Penal Code on the basis of the fardbeyan of Flora Kandulna, wife of late Sebastian Kandulna, village Lamdega, Pahan Toli, P.S. Jaldega, District-Simdega, recorded by the Sub Inspector S. Paswan, Officer-in-Charge, Jaldega P.S. at 16.00 hrs. on 13.03.2009. The informant alleged that her brother-in-law Rimish @ Ramesh Kandulna, son of late Johan Kandulna, village-Lamdega Pahan Toli, had left his house ten years back along with his wife for work in Delhi. He had returned in the previous week on Wednesday (04.03.2009) and started living with them. He started asking for share in the property both residential and agricultural of her husband. On Thursday 12.03.2009, she prepared food in the evening and served both her brother-in-law accused Rimish @ Ramesh Kandulna and her husband and thereafter, went inside the house to sleep along with her children. Her husband Sebastian Kandulna (deceased) and the accused both slept on veranda. At about 3.00 am in the night, on hearing shout, she came out and saw that her brother-in-law, the accused Rimish @ Ramesh Kandulna was assaulting her husband Sebastian Kandulna (deceased) with a ''tangi'' on his neck. She tried to save him and also raised shout, then her brother-in-law also chased her and she had to flee away. After sometime, she returned to find that her husband had been killed by the assault made by her brother-in-law on the neck of her husband. The reason for assault was the dispute for share in the property both residential and agriculture between her brother-in-law and her husband (deceased). The fardbeyan was recorded in presence of Sahiya Kunwari. 4. After sometime, she returned to find that her husband had been killed by the assault made by her brother-in-law on the neck of her husband. The reason for assault was the dispute for share in the property both residential and agriculture between her brother-in-law and her husband (deceased). The fardbeyan was recorded in presence of Sahiya Kunwari. 4. On completion of investigation, charge sheet was submitted against the sole accused under section 302 of the Indian Penal Code bearing no. 14/2009 dated 30.04.2009. Cognizance was taken and case was committed to the court of Sessions. Charges were framed against the sole accused under section 302 of the Indian Penal Code by order dated 29.10.2009. It was read over and explained to him in Hindi, to which the accused pleaded not guilty and claimed to be tried. Thus, trial commenced. 5. In order to prove its case, prosecution examined seven prosecution witnesses: PW-1: Flora Kandulna is the informant and widow of the deceased. She claims to be an eyewitness. PW-2: Sukra Soren is an Agriculturist of the same village. He had heard shouts at around 3.00 am in the night on the date of occurrence i.e. 12.03.2009 and reached the place of occurrence where he was told by the informant that her brother-in-law had killed her husband. He is a witness to the seizure of ''tangi''. PW-3: Stanisalash Surin has stated that he came to know about the occurrence early in the morning when informant (PW-1) told him about the occurrence. He had seen the dead body. PW-4: Buddhu Pahan has also stated in similar fashion. He belongs to the same village. PW-5: Jimi Surin @ Jimi Soren also belongs to the same village. He has also stated that he came to know about the occurrence in the morning that Sebastian Kandulna have been killed. He had seen the dead body. PW-6: Dr. Prabhu Sahai Linda is the Medical Officer who performed postmortem on the dead body of Sebastian Kandulna on 14.03.2009 at 1.00 pm. He has proved the postmortem report, marked as Ext.1 containing the following ante mortem injuries: (i) A sharp cut wound in front of neck below mandible slightly left lateral to mid line 5"x2"x bone deep. (ii) A sharp cut wound posterior side of mid neck 5"x2"x bone deep. (iii) A sharp cut wound on left side of mid neck 3"x1"xbone deep. (ii) A sharp cut wound posterior side of mid neck 5"x2"x bone deep. (iii) A sharp cut wound on left side of mid neck 3"x1"xbone deep. According to him, all the above mentioned injuries were ante mortem in nature and caused by sharp heavy cutting object. Their age was within 15-25 hours of duration. Death was caused due to cardiovascular failure, as a result of severe external hemorrhage. These injuries were sufficient to cause death in ordinary course. In cross-examination, he has stated that all the injuries were in ''V'' shape. PW-7: Dheerak Deo Manjhi is the Investigating Officer of this case. On the date of occurrence, he was posted as Sub Inspector at Jaldega P.S. He identified the signature and handwriting of the Sub Inspector S. Paswan on the fardbeyan which was marked as Ext.2; the formal FIR in the handwriting of Literate Constable Murli Singh has been marked as Ext.3. He was handed over the investigation by the Officer-in-Charge on 13.03.2009. This witness in his statement, has stated that he took the statement of the informant and visited the place of occurrence and examined it. The place of occurrence has been proved with the following boundaries i.e.: North and South Kachcha Road East and West - House of someone He seized the blood stained ''tangi'' and prepared the seizure list, which however was not available with him at the time of deposition. He had sent the dead body of the deceased for postmortem examination. Upon finding the case true, charge sheet was submitted by him upon instruction of senior police officials. In his cross-examination, he denied having not gone to the place of occurrence or not prepared the seizure list. He has further stated that the informant had told that the accused Rimish @ Ramesh Kandulna cut the deceased by ''tangi''. He denied having committed any lapses in the investigation. A perusal of the deposition of all the seven prosecution witnesses shows that PW-1 was examined as eyewitness and PWs-2 to 5 were hearsay witnesses, PW-6 is the Medical Officer who had performed the postmortem on the dead body and proved the postmortem report as Ext.1 and PW-7 is the Investigating Officer who proved the fardbeyan and formal FIR as Ext.2 & 3. 6. 6. Upon closure of the prosecution evidence, accused was examined under cHis case was of complete denial and did not say any word in his defence. No defence witness or documentary evidence were adduced on behalf of the accused. 7. Learned Trial Court on the basis of the entire material evidence on record, found that the prosecution has been able to prove the charge beyond shadow of all reasonable doubt. Therefore, it convicted the accused for the charge of murder under section 302 of the Indian Penal Code and sentenced him accordingly, as above. 8. During hearing of this appeal, learned Amicus Curiae has questioned the findings of the learned Trial Court inter alia on the ground; that statement of PW1 Flora Kandulna, who was examined as a sole eye witness, is not reliable and trustworthy. There are no other witnesses who have seen the occurrence. All other prosecution witnesses no. 2 to 5 are hearsay witness who came to know about the incidence from the informant and in the morning. No children of the deceased and the informant have come forward to depose about the incidence, though according to the informant, she was sleeping inside the house with them. Learned Amicus Curiae has suggested that the manner of occurrence is not believable as both brothers were sleeping together which is unlikely in case of dispute or grudge between them. The accused admittedly was living away at Delhi along with his wife for ten years and had returned only in the previous week. No evidence has been brought on record by the prosecution to show existence of any dispute about the share of the property both residential and agricultural land - between the deceased and the accused. As such, the prosecution case has not been able to stand on its own legs. The impugned judgment deserves to be set aside. 9. Learned Additional Public Prosecutor has submitted in defence of the findings recorded by the learned Trial Court. According to him, the informant Flora Kandulna, widow of the deceased, is the most natural witness to narrate about the incidence which occurred in the night in the house, when no other villagers or any independent witness were expected to be awake to witness it. She has graphically described the assault. She also had to run away as the accused tried to chase her and assault. She has graphically described the assault. She also had to run away as the accused tried to chase her and assault. She has also given adequate reason for such a murderous assault on her husband i.e., the dispute about share in the residential and agricultural property being agitated by the accused against her husband Sabastian Kandulna. The fardbeyan has been duly proved by the Investigating officer Dheerak Deo Manjhi in his examination as PW-7, so is the formal F.I.R as Ext. 2 and 3 respectively. Injuries which have been found during autopsy on the dead body of the deceased by the Medical Officer Dr. Prabhu Sahai Linda (PW-6) are ''V'' shaped and caused by an axe, which fact corroborates the statement of PW-1. These injuries are sufficient in ordinary course of nature to cause death as they resulted in cardiovascular failure due to severe external hemorrhage. Both the mens rea and actus reus have been duly established by the prosecution. The prosecution case is fully proved and does not suffer from any lapses or loopholes. Therefore, the conviction of the accused / appellant is not vulnerable to any challenge on any legal or factual grounds. 10. We have considered the submissions of learned Amicus Curiae and learned Additional Public Prosecutor; gone through the entire material evidences on record and also perused the impugned judgment. 11. On perusal of the evidences on record, we are in a position to say that the case of the prosecution hinges on the deposition of PW-1 Flora Kandulna, the informant and widow of the deceased Sebastian Kandulna and the testimony of PW-6 the Medical Officer, Dr. Prabhu Sahai Linda. PW-6 conducted autopsy on the dead body and found three sharp cutting injuries on the neck which, in his opinion, may be caused by an axe and were sufficient to cause death in ordinary course. Testimony of PW-6 corroborates the statement of PW-1 who is an eye witness to the occurrence. We have also able to gather from the evidence on record that there was sufficient intention or mens rea on the part of the appellant in the commission of the act. PW-1 has truthfully supported the story set up in the first information report about the dispute between the accused and deceased on the claim of share in the property - both residential and agricultural. The incidence took place around 3.00 am in the night. PW-1 has truthfully supported the story set up in the first information report about the dispute between the accused and deceased on the claim of share in the property - both residential and agricultural. The incidence took place around 3.00 am in the night. As such, no other independent witness and / or co-villagers could be expected to be awake to witness it. Learned Additional Public Prosecutor has rightly submitted that apart from PW-1, widow of the deceased, who was sleeping inside the house and awoke on hulla (shout), no other independent witness could have seen the occurrence by his own eyes at the dead hours of the night. We also find that the defence has not been able to make any holes in the prosecution story by suggesting or eliciting any other hypothesis of crime other than the direct involvement of the accused / appellant in the murder of his own brother on account of dispute or grudge relating to share in the property. Medical injuries as described above, duly corroborates the nature of assault on the neck of the deceased by a ''tangi'', a sharp cutting weapon which has led to cardiovascular failure as a result of severe external hemorrhage and has precipitated death of Sebastian Kandulna. 12. Having minutely scanned the entire material evidence on record, we do not find any shadow of doubt in the prosecution story for the appellant to claim any benefit of doubt and escape conviction. The impugned judgment and order of sentence are well reasoned and based upon proper appreciation of evidences. In the totality of facts and circumstances and for the reasons discussed herein above, we do not find any merit in this appeal. The instant appeal is dismissed. Let the Lower Court Record be sent to the Court below immediately. 13. While parting, we record our appreciation for the assistance accorded by the learned Amicus Curiae during hearing of this case. Her admissible legal remuneration should be borne by the Secretary, High Court Legal Services Committee on production of a certified copy of the judgment along with an application within a period of four weeks therefrom.