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2020 DIGILAW 286 (JHR)

Sadanand Senapati v. State of Jharkhand

2020-02-12

RATNAKER BHENGRA, S.CHANDRASHEKHAR

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JUDGMENT : S. Chandrashekhar, J. 1. The appellants; Pratham Ray @ Pratham Rai in Cr. Appeal (DB) No. 995 of 2010 and Sadanand Senapati in Cr. Appeal (DB) No. 940 of 2010, have challenged the judgment of conviction under section 386/34 of the Indian Penal Code and section 302/34 of the Indian Penal Code dated 31st August, 2010 and the order of sentence dated 1st September, 2010 for the aforesaid offences passed against them by the learned Additional Sessions Judge, Fast Track Court-Vth, Dhanbad in S.T. Case No. 381 of 2009. 2. A First Information Report vide Chirkunda (Galfarbari) P.S. Case No. 65 of 2009 was registered on 4th April, 2009 against the appellants under sections 386, 307, 323, 341, 325 r/w section 34 of the Indian Penal Code. The informant who is son of Taimuddin Ansari has alleged that the accused persons were demanding rangdari from his father and when his father refused they have assaulted him with iron rod and bricks. Taimuddin Ansari had died the next day and, accordingly, the offence under section 302 of the Indian Penal Code has been added in the report. 3. During the trial, the prosecution has examined nine witnesses; the informant is PW-6. 4. The prosecution has projected Jamil Ansari PW-3, Khalil Ansari PW-4 and the informant as the eye-witnesses. 5. In his fardbeyan, the informant has stated that on 4th April, 2009 he was working in the factory with his father. His father was a mason. In the afternoon, at about 4:30 p.m., the accused persons came there and demanded ransom and threatened his father and when his father expressed his inability to pay them, they picked up iron rod and assaulted his father on his head. The informant has further stated that when he tried to object they threatened him on the gun point and asked him to leave the place else he and his father would be killed and Sadanand Senapati has snatched Rs. 5,440/- from him. In the court, the informant has reiterated his fardbeyan. He has narrated a similar story about the occurrence which had happened in the afternoon of 4th April, 2009. He has stated that the accused persons were demanding ransom of Rs. 5000/- from his father and they have assaulted his father. He has stated that at the time of the occurrence Jamil Ansari and Khalil Ansari were also present there. He has narrated a similar story about the occurrence which had happened in the afternoon of 4th April, 2009. He has stated that the accused persons were demanding ransom of Rs. 5000/- from his father and they have assaulted his father. He has stated that at the time of the occurrence Jamil Ansari and Khalil Ansari were also present there. He has deposed that Pratham Ray whipped out a pistol and threatened him. PW-3 and PW-4 have also supported the prosecution on all material particulars. They have stated that they have seen the appellants assaulting Taimuddin Ansari with iron rod and bricks. They have also spoken about Sadanand Senapati snatching money from Sarafat Ansari and the accused persons threatening them. 6. Mrs. J. Mazumdar and Mr. Ranjan Kumar Singh, the learned counsels for the appellants have contended that: (i) PW-3 and PW-4 are not the eye-witnesses, (ii) the place of occurrence is not proved, (iii) the iron rod which was used in the crime has not been recovered, (iv) the medical evidence reveals that no cut injury was found by the doctor and, (v) there was no blood on the body of Taimuddin Ansari and, therefore, the prosecution has failed to establish the foundational facts for proving the charge of murder against the appellants. 7. PW-3, PW-4 and PW-6 are co-workers of the deceased. They have stated that they were present in the factory at the time of occurrence on 4th April, 2009. PW-3 has stated in his cross-examination that his house is near to the factory. He is distantly related to Taimuddin Ansari. PW-4 is brother of the deceased and he has stated that his statement was recorded by the police. In fact, there is no serious challenge by the defence to their presence in the factory at the time of occurrence. The informant has also remained unshaken during his cross-examination. The learned counsels for the appellants have tried to contend that they are not eye-witnesses. This contention is based on the statement of these witnesses that on hearing hulla they had gone to the place of occurrence, but, in our opinion nothing much turns on it. They were present in the factory and when they reached the place of occurrence they have seen the appellants assaulting Taimuddin Ansari. This contention is based on the statement of these witnesses that on hearing hulla they had gone to the place of occurrence, but, in our opinion nothing much turns on it. They were present in the factory and when they reached the place of occurrence they have seen the appellants assaulting Taimuddin Ansari. Minor discrepancy in testimony of PW-3, PW-4 and PW-6 would not create a doubt on complicity of the appellants in the crime. They are the related witnesses but on that count also their testimony cannot be doubted. All that is required is to scrutinize their testimony with such care and caution as has been indicated by the Supreme Court in "Raju V. State of T.N." reported in (2012) 12 SCC 701 . On a careful examination of the testimony of eye-witnesses-PW-3, PW-4 and PW-6-we find that their evidence is cogent and consistent and minor variation in their statement which may have occurred due to lapse of time would not defeat the core of the prosecution's case. They are reliable and trustworthy witnesses. 8. PW-1 is an inquest witness and PW-2 has stated that when he returned from duty he came to know that Pratham Ray and Sadanand Senapati were demanding ransom and when his father refused they killed him. He has also stated that his brother Sarafat Ansari had informed him that Sadanand Senapati and Pratham have threatened him on gun point. PW-5 has also deposed on the similar lines. PW-2 and PW-5 are not the eye-witnesses but they have supported the informant on material aspects of the case. PW-8 is the factory owner who has deposed in the court that on 4.4.2009 he has made payment to the workers. He has stated that he has paid Rs. 5,400/- to Sarafat Ansari. The Investigating Officer has been examined as PW-9. He has prepared the inquest report, requisition for the post-mortem examination and proved the documents during the trial. 9. On the basis of the aforesaid evidence the prosecution has proved presence of the appellants at the place of occurrence and at the time of occurrence. They have assaulted Taimuddin Ansari has also been proved by the prosecution. He has prepared the inquest report, requisition for the post-mortem examination and proved the documents during the trial. 9. On the basis of the aforesaid evidence the prosecution has proved presence of the appellants at the place of occurrence and at the time of occurrence. They have assaulted Taimuddin Ansari has also been proved by the prosecution. In the face of testimony of PW-3, PW-4 and PW-6 which is consistent and reliable non-examination of other factory workers or failure of the Investigating Officer to recover iron rod and to obtain FSL report on blood-stained soil would not shake the foundation of the prosecution's case against the appellants. 10. Mrs. J. Mazumdar, the learned counsel for the appellant, namely, Sadanand Senapati has contended that there is serious contradiction between the ocular evidence and the medical evidence. The learned counsel has relied on the decision in "Mahavir Singh Vs. State of M.P." reported in (2016) 10 SCC 220 . 11. Dr. Sapan Kumar Sarak who has conducted the post-mortem examination on 5.4.2009 at about 11:00 a.m. has found the following injuries on Taimuddin Ansari: "(i) Lacerated wound size 2" x 1" x muscle and cartilage deep with crushing effect over left auride with abrasion, size 2" x 3/4" in the front. (ii) Swelling with bruise all over the left and right of front head and face with abrasion, size 3" x 1½" on left side of face." 12. The doctor has detected both eye-lids swollen and black on both sides and as many as six abrasions; three of which were on the upper part of the body, one on the waist and another on the left leg. In the opinion of the doctor these injuries were caused by hard and blunt substance. The prosecution witnesses have deposed in the court that both the appellants have assaulted Taimuddin Ansari with iron rod and bricks. The lacerated wound, that is, injury No. 1 is relatable to the injury caused by the iron rod and the other injuries by the brick. 13. On such facts, we do not find any inconsistency in the medical evidence and the ocular evidence. In Mahavir Singh's case the supreme court has observed that the ocular testimony of a witness which has a greater evidentiary value vis-à-vis medical evidence can be rejected only when medical evidence makes the ocular evidence improbable. 13. On such facts, we do not find any inconsistency in the medical evidence and the ocular evidence. In Mahavir Singh's case the supreme court has observed that the ocular testimony of a witness which has a greater evidentiary value vis-à-vis medical evidence can be rejected only when medical evidence makes the ocular evidence improbable. We do not find any such improbability in the manner of occurrence as spoken by the prosecution witnesses rather the medical evidence corroborates the ocular evidence. 14. However, we find that conviction of the appellants under section 302/34 of the Indian Penal Code is not proper and sustainable in law. 15. During his cross-examination, the doctor has stated that he did not find any cut mark and bleeding on the head. In the context of the evidence of the doctor it needs to be recorded that in his opinion the cause of death was due to coma as a result of the injury caused by hard and blunt substance with force. The number of injuries on Taimuddin Ansari-mostly abrasions and swelling-would reflect that all that the appellants were intending was to assault him. From the manner of occurrence and particularly because only one lacerated wound which is relatable to the injury caused by iron rod has been found on Taimuddin Ansari, it cannot be inferred that the appellants had intended to commit his murder. The injury No. 1 which is the lacerated wound, size 2"x1", was muscle deep with crushing effect and the doctor has found blood clots inside the frontal, parietal and temporal region of the head of Taimuddin Ansari. Such injury would establish that the appellants have caused injury which was likely to cause death and, therefore, they are liable to be convicted under section 326 of the Indian Penal Code [refer, Vijay Singh and Another Vs. State of Madhya Pradesh reported in (2014)12 SCC 293 and Rama Meru and Another Vs. State of Gujarat reported in 1993 Supp (1) SCC 315]. 16. Accordingly, the judgment of conviction under section 302/34 of the Indian Penal Code dated 31.08.2010 and the order of sentence of imprisonment for life under section 302/34 of the Indian Penal Code with fine of Rs. 5,000/- each dated 01.09.2010 passed by the learned Additional Sessions Judge, F.T.C.-Vth, Dhanbad in Sessions Trial Case No. 381 of 2009 are set-aside. 17. Accordingly, the judgment of conviction under section 302/34 of the Indian Penal Code dated 31.08.2010 and the order of sentence of imprisonment for life under section 302/34 of the Indian Penal Code with fine of Rs. 5,000/- each dated 01.09.2010 passed by the learned Additional Sessions Judge, F.T.C.-Vth, Dhanbad in Sessions Trial Case No. 381 of 2009 are set-aside. 17. The charge under section 386/34 of the Indian Penal Code has not been proved by the prosecution and, accordingly, conviction of the appellants, named-above, under section 386/34 of the Indian Penal Code is set-aside. 18. The appellants, named-above, are convicted and sentenced to undergo R.I. for 10 years under section 326/34 of the Indian Penal Code. 19. Mr. Gouri Shankar Prasad, the learned Spl. P.P. states that both the appellants, named-above, have remained in jail custody for more than ten years. 20. Accordingly, the appellant, namely, Sadanand Senapati in Cr. Appeal (D.B.) No. 940 of 2010 and the appellant, namely, Pratham Ray @ Pratham Rai in Cr. Appeal (D.B.) No. 995 of 2010 shall be set free forthwith, if not wanted in connection to any other criminal case. 21. In the result, Criminal Appeal (D.B.) No. 940 of 2010 and Cr. Appeal (D.B.) No. 995 of 2010 are partly allowed. 22. Let lower court records be transmitted to the court concerned, forthwith.