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2020 DIGILAW 330 (JHR)

Vir Singh Sidhu @ Chara v. State of Jharkhand

2020-02-17

AMITAV K.GUPTA, RAJESH KUMAR

body2020
JUDGMENT : 1. This appeal is directed against the judgment dated 28.04.2017 and order of sentence dated 29.04.2017, passed by learned Additional Sessions Judge-III, West Singhbhum, at Chaibasa in Sessions Trial Case No. 23 of 2009, whereby the appellants have been found guilty and convicted for the offence under Sections 302 read with 34 of Indian Penal Code. The appellants have been sentenced to undergo imprisonment for life and a fine of Rs-5000/-, in default, thereof, to undergo S.I. for 6 months. 2. The case of the prosecution as narrated in the fardbeyan, dated 28.08.2008, of Chandro Sidu (P.W.-4) is that on 27.08.2008, after having meals, he and his wife were sleeping on the verandah of their house. At around 8:00 p.m. his younger brother Lakhan Sidu @ Motka alongwith villagers Vir Singh Sidhu @ Chara and Uday Sidu @ Urdan came and woke him up, whereafter Lakhan Sidu @ Motka stated that he was not partitioning the land and gave orders to kill him and LakhanSidu @ Motka inflicted injury over his eye with a knife, whereafter the informant ran away from his house and hid nearby. He has alleged that the appellants caught hold of his wife and after inflicting knife-blows on her they ran away. An hour, thereafter, he came back to his house and found his wife lying dead with her neck slashed. It is alleged that his younger brother LakhanSidu @ Motka alongwith the accused persons had killed his wife due to non-partitioning of the ancestral land. On the basis of the fardbeyan Tonto P. S. Case No. 14 of 2008 was registered under Section 302/34 of Indian Penal Code (for short IPC). On completion of investigation charge-sheet was submitted and cognizance was taken, and the case was committed to the court of Sessions. The case was transferred to the court of Additional Sessions Judge for trial and disposal. The trial court read over and explained the charge to the accused persons to which they pleaded not guilty and claimed to be tried. On closure of the prosecution evidence the statement under Section 313 Cr.P.C, of the accused was recorded. The defence of the accused persons was of complete denial. 3. The trial court read over and explained the charge to the accused persons to which they pleaded not guilty and claimed to be tried. On closure of the prosecution evidence the statement under Section 313 Cr.P.C, of the accused was recorded. The defence of the accused persons was of complete denial. 3. The prosecution has examined altogether five witnesses namely, P.W.1-Harish Hansda -the village Munda who identified and proved his signatures Ext-1, 1/1 and 1/2 on the inquest report, the seizure list of blood-stained earth and on the fardbeyan, respectively. P.W.2-Dulu Sidu-is the son of the deceased and he has identified and proved his signature-Ext.-1/1 on the inquest report. P.W.3-Ramsingh Lamay is a hearsay witness. P.W.4-Chondro Sidu is the informant, P.W.-5, Doctor Marshal Lugun, has proved the post-mortem report, i.e. Ext.-2. 4. On the basis of the evidence and materials on record the court below found the appellants guilty and convicted them by the impugned judgment. 5. Learned counsel for the appellants has submitted that P.W.-4, the informant, has stated that he sustained knife injury but the prosecution has not adduced any medical evidence regarding the injury of P.W.-4. It is argued that P.W.-2, the son of P.W.-4, has stated that he was sleeping in the room adjacent to the room, in which his father (P.W-4) and mother Shanti Sidu (the deceased) were sleeping, whereas PW-4 has stated that he and his wife (the deceased) were sleeping on the verandah. It is submitted that there are material contradictions in the testimony of P.Ws.-4 and P.W.-2. It is argued that non-examination of the Investigating Officer has prejudiced the defence, as they have been deprived of the opportunity to draw attention to the contradictions in the testimony of P.W.-2 and PW-4 vis-a-vis their statement recorded under Section 161 Cr.P.C. It is argued that P.Ws. 1 and 3 are hearsay witnesses. It is contended that the material contradictions in the testimony of the witnesses creates a doubt regarding the veracity of the prosecution's case consequently the appellants deserve to be acquitted of the charges by giving them the benefit of doubt. 6. Learned APP has submitted that it is well settled proposition that it is not quantity of witnesses but the quality of evidence which is to be considered by the court. It is contended that P.Ws. 2 and 4 are the inmates of the house. 6. Learned APP has submitted that it is well settled proposition that it is not quantity of witnesses but the quality of evidence which is to be considered by the court. It is contended that P.Ws. 2 and 4 are the inmates of the house. P.W.-2 has stated that on hearing cries and shouts of his mother he opened the door of his room and saw the appellants inflicting knife-blow on the neck of his mother. It is submitted that P.W.-2 was aged about 8 years on the day of the occurrence, as it would be evident that on 10.02.2012, i.e., on the date of examination of P.W.-2, the court has assessed the age of P.W.-1 as 14 years, whereas the occurrence is of 2008. It is argued that considering that PW-2 was of tender age, he must have been in a state of shock and fear on witnessing the gruesome murder of his mother and out of fear he had shut the door of his room, and not raised any alarm. PW-4, has stated that he was sleeping alongwith his wife on the verandah, therefore, the discrepancy is not vital, as no material contradictions has been elicited in cross-examination to discredit the testimony of P.W.-2 and P.W.-4 who are the eye witnesses to the crime committed by the appellants. It is submitted that PW-4 in cross-examination has clarified that he had run away and hid himself in the bushes, situated 50 meters from his house, and saw the appellants killing his wife. It is submitted that P.W. 1, the village Munda, in cross-examination has stated that on the next day at 5:30 a.m., P.W.-4 had come and told him that the accused-appellants had killed his wife. P.W.-3, the 'dakua' of the village, has corroborated that he was informed by P.W-1 about the incident. P.W.-1 has stated that while he and P.W.-4 were going to report the matter to the police, they met the police officer on the way. The police had come to the house of P.W.-4 and prepared the inquest report and recorded the fardbeyan of P.W.-4 and P.W.-1 had also signed on the fardbeyan. It is argued that P.Ws. 2 and 4 are rustic and illiterate villagers. The discrepancies in the testimony of P.W.-2 and P.W.-4 are minor and such minor contradictions does not discredit their testimonies as P.Ws. It is argued that P.Ws. 2 and 4 are rustic and illiterate villagers. The discrepancies in the testimony of P.W.-2 and P.W.-4 are minor and such minor contradictions does not discredit their testimonies as P.Ws. 2 and 4 have categorically testified that they had seen the appellants assaulting P.W.4's wife with a knife. P.W.-5-the Doctor, who conducted post-mortem on the dead body of deceased (P.W.4's wife) found sharp cutting injuries on the neck of the deceased as per Ext.-2. 7. To buttress his argument, learned APP has placed reliance on the decision rendered by Supreme Court in Ram Swaroop v. State of Rajasthan (2008) 13 SCC 515 and the observation made in paras 8 and 9 of the aforesaid judgment. Learned APP has argued that in the instant case the ocular testimony of P.Ws.-2 and 4 is corroborated by medical evidence and the well-settled legal proposition is that credibility of witnesses cannot be impeached on account of minor discrepancies in their testimony. Learned APP has also relied on the decision rendered in State of Uttar Pradash v. Krishna Master & Ors. (2010) 12 SCC 324 ; Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 and submitted that Hon'ble Supreme Court has held that the evidence of a witness cannot be discarded or disbelieved just because the witness is a close relative of the victim or the deceased. It is argued that P.Ws. 2 and 4 are natural witnesses as they were inmates of the house. It is submitted that non-examination of Investigating Officer is not fatal to the case of the prosecution, as it would be evident, that no material contradictions has been elicited in cross-examination of P.W.-2 and P.W.-4, therefore no prejudice has been caused to the defence due to non-examination of the Investigating Officer. It is canvassed that the learned court below, on meticulous examination and discussion of the evidence on record, has found the appellants guilty for committing the murder of P.W-4's wife, therefore the impugned judgment does not require any interference by this Court. 8. Heard. For appreciating the rival submissions, the examination and evaluation of the testimony of witnesses and the material evidence is necessary to determine whether the impugned judgment is sustainable in law and on facts or does it require any interference by this Court? 9. 8. Heard. For appreciating the rival submissions, the examination and evaluation of the testimony of witnesses and the material evidence is necessary to determine whether the impugned judgment is sustainable in law and on facts or does it require any interference by this Court? 9. On perusal of the evidence on record it appears that P.W.-1, Harish Hansda (the village Munda) in cross-examination has testified that on the next day, at 5:30 a.m. in the morning, PW 4 came and told him that the accused-appellants had killed his wife, whereafter he along with P.W.-3 -Ram Singh Lamaya (the 'dakua' of the village) had gone to the house of PW-4 and seen the dead body of P.W.4's wife. 10. PW-1 has stated that he along with PW-4 were going to the police station and on the way they met bara babu (Officer-in-Charge). They returned with the police officer to the house of P.W.-4. The police had prepared the inquest report of P.W.4's wife and seized blood-stained earth and he had signed on the inquest report and the seizure list. He has identified his signature on the fardbeyan. He has deposed that the cause of the occurrence was due to land dispute between P.W.-4 and appellant Lakhan Sidu. In cross-examination, he has stated that 'panchayti' was held in connection with the land dispute but no document was prepared in the 'panchayti'. PW-1 has admitted that he does not have any knowledge about any other dispute between the deceased and the appellants. He has stated that there was no dispute between P.W.-4 and appellants Vir Singh Sidhu @ Chara and Uday Sidu @ Urdan. 11. P.W.-2 (Dulu Sidu) the son of PW-4 has deposed that his parents were sleeping in the verandah and he was sleeping inside the house. He woke up on the shouts of his mother and opened the door of his room, and saw the accused-appellants cutting/assaulting his mother and out of fear he had shut the door and went off to sleep. The police had come in the morning. He had put his signature on the inquest report. He has deposed that he does not know the cause or reason for killing of his mother. In cross-examination, he has stated that the appellants namely Lakhan Sidu @ Motka and Vir Singh Sidu @ Chara are his own uncles. His uncles reside separately and their lands are also separate. He had put his signature on the inquest report. He has deposed that he does not know the cause or reason for killing of his mother. In cross-examination, he has stated that the appellants namely Lakhan Sidu @ Motka and Vir Singh Sidu @ Chara are his own uncles. His uncles reside separately and their lands are also separate. In para-8, he has stated that there was no dispute between his father and his uncles. There was cordial relation between them and they were on visiting terms to each other's house. In para-9, he has stated that there are two rooms in his house. On the day of occurrence he was in one room and his father and mother were in the other room. There is an intervening door between the two rooms. He has stated that he was awake and aware when the accused persons arrived at his house at 8:00 p.m., but he did not come out of the room. The accused-persons remained for half-an-hour in his house and during this period he did not hear any shouts. He did not shout for help when the accused were assaulting his mother. He has stated that when he opened the door, he saw his mother lying in the room and, at that time, except for his mother no one was present in the room. His father (P.W.-4) came home at 7 a.m. in the morning. In para 14 he has admitted that his father had told him that the accused persons had killed his mother. He had not informed anyone about the occurrence. 12. P.W.-3 (Ram Singh Lamay) is a formal witness. He has stated that on being informed by P.W.-1, he had gone to the house of PW-4 and seen P.W-4's wife lying dead with cut injury on her neck. In cross-examination, he has stated that the partition of land had taken place in presence of panches. 13. P.W.-4 (Chondro Sidu) the informant has stated that the occurrence took place 3-4 years ago. At 8:00 p.m. Lakhan Sidu, Vir Singh Sidu and Uday Singh came to his house and inflicted a knife blow above his right eye whereafter he ran away from his house. He has deposed that his son (P.W.-2) was sleeping inside the house and the accused-appellants had cut his wife with a knife. He had hid himself in the bushes. At 8:00 p.m. Lakhan Sidu, Vir Singh Sidu and Uday Singh came to his house and inflicted a knife blow above his right eye whereafter he ran away from his house. He has deposed that his son (P.W.-2) was sleeping inside the house and the accused-appellants had cut his wife with a knife. He had hid himself in the bushes. He returned home at around 7:00 a.m in the morning and saw the dead body of his wife. He has deposed that the cause of occurrence was on account of land dispute. In cross-examination, he has stated that he and his wife were sleeping in the verandah. The door was locked. The accused persons had called out, whereafter he had opened the door then the accused persons entered his house and at that time no quarrel took place and he was assaulted by the accused after 10 (ten) minutes. The appellants Lakhan Sidu @ Motka and Vir Singh Sidu @ Chara are his own brothers. Lakhan Sidu @ Motka had inflicted a knife-blow on his right eye-brow. Vir Singh Sidu @ Chara and Uday Sidu @ Urdan had not assaulted him. He had shouted but no one had come to his help, thereafter he ran away and hid himself in the bushes situated 50 meters from his house, and from there he had seen the accused persons killing his wife and a lantern was burning in the verandah. He has stated that the accused persons had remained for half-an-hour in his house. Out of fear, he did not return home that night. He has stated that on two occasions panchayati had taken place for the land dispute and the land was partitioned. He has denied the suggestion that he himself had committed the murder of his wife and falsely implicated the appellants. 14. P.W.-5 (Dr. Marshal Lugun)-conducted the post-mortem on the dead body of the deceased and found (i) Incised wound on mid of neck to left shoulder -6”x 2” cutting all sutures (nerve, vein and bone). (ii) Incised wound on right arm medial part, 3” x muscle deep. In his opinion the cause of death was shock and haemorrhage due to the aforesaid injuries. 15. (ii) Incised wound on right arm medial part, 3” x muscle deep. In his opinion the cause of death was shock and haemorrhage due to the aforesaid injuries. 15. On analysis of the testimony of the witnesses it appears that P.W.-2, i.e. the son of P.W.-4, in cross-examination has stated that he was sleeping in the room adjacent to the room in which his father (P.W-4) and mother Shanti Sidu (the deceased) were sleeping, whereas PW-4 has stated that he and his wife (the deceased) were sleeping on the verandah. PW-2 has stated that the appellants remained for half-an-hour in his house and during the said period P.W.-2 did not hear any shouts, whereas PW-4 in cross-examination has stated that the appellants had struck him with the knife after 10 minutes of their arrival, and he had shouted. In the fardbeyan and during deposition P.W.-4 has stated that accused Lakhan Sidu inflicted a knife blow due to which he sustained injury above his right eye, but P.Ws. 1, 2 and 3 have not testified about any injury on the person of P.W.-4. 16. In the fardbeyan P.W.-4 has narrated that on being assaulted by the accused he had run away from his house and hid himself nearby. He had seen the accused fleeing after killing his wife, and he returned to his house, after an hour, and saw his wife lying dead. However, in his deposition and cross-examination he has stated that, out of fear, he did not return home that night and he came home in the morning at 7:00 a.m., on the next day. 17. At this juncture it is pertinent to mention that the settled legal position is that the F.I.R is not a substantive piece of evidence and it can only be used to corroborate and contradict the maker of the statement. It is noticed that though the defence has not drawn the attention of P.W.-4 vis-a-vis the narration made by him in the fardbeyan, but during cross-examination material contradictions have been elicited in the testimony of P.W-4. 18. On scrutiny of the testimony of P.W.-2 and P.W.-4, it is amply clear that they have made contradictory statement regarding the manner and sequence of occurrence. 18. On scrutiny of the testimony of P.W.-2 and P.W.-4, it is amply clear that they have made contradictory statement regarding the manner and sequence of occurrence. The Hon'ble Supreme Court in S. Govindaraju v. State of Karnataka, (2013) 15 SCC 315 has observed that where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. 19. At this stage it will not be out of place to state that even if, PW-4's testimony is presumed to be true that he came home on the next day, then it does not appeal to reason as to why he did not inform or seek the help of villagers or PW-1-the village Munda or PW-3-the dakua of the village immediately after the accused had left his house. 20. It is pertinent to note that in the fardbeyan and in examination-in-chief PW-4 has stated that the reason and cause of the occurrence was land dispute, whereas PW-1 in cross-examination has admitted that a panchyati was held for the land dispute. PW-3 in cross-examination has stated that on two occasions panchayti was held for the land dispute and the land was partitioned. PW-2-the son of P.W.-4-has stated that he does not know the reason or cause for killing of his mother and has admitted that there was no dispute between his uncles and his father (P.W.-4). His uncles were residing and cultivating their land separately. There was cordial relation between them and they used to visit each other's house. P.W.-4 in cross-examination has admitted that in the panchyati the land was partitioned. It would be evident from the testimony of P.Ws. 1, 2, 3 that partition of the land had taken place which is admitted by P.W.-4 and this creates a grave doubt regarding the prosecutions case that the motive for commission of the crime was due to non-partitioning of the land by the informant. 21. It would be evident from the testimony of P.Ws. 1, 2, 3 that partition of the land had taken place which is admitted by P.W.-4 and this creates a grave doubt regarding the prosecutions case that the motive for commission of the crime was due to non-partitioning of the land by the informant. 21. In this context it is pertinent to point out that if the accused persons had an intention to kill P.W.-4 due to the land dispute then they could have easily chased and run after P.W.-4, as it is evident that no material has been brought on record to show that there was any intervening circumstance which prevented the accused persons in fulfilling their object and intention to kill P.W.-4. No material evidence has been brought on record to show that the deceased (wife of P.W.-4) was objecting or causing any hinderance to partitioning of the land or the accused had any grievance against her. Moreover, killing of P.W.-4's wife would not have served the purpose of putting an end to the land dispute. 22. P.W.-4 in cross-examination has stated that a lantern was burning in the verandah of his house but P.W.-2 has not corroborated the testimony of P.W.-4 on this aspect. In fact, P.W.-2 in his cross-examination has stated that when he came out of the room he saw his mother lying in the room and, except for his mother, no one else was present in the room and P.W.-4 had come home in the morning at 7 a.m on the next day. P.W.-2 has admitted in cross-examination that he was awake and aware about the arrival of the accused-appellants who had remained for half-an-hour in his house and during the said period no quarrel had taken place. P.W.-2 has not supported P.W.-4's version that the appellant Lakhan Sidu had assaulted P.W.-4 with a knife neither P.W.-2 has stated that P.W.-4 had shouted for help on being assaulted by the appellants. P.W.-2 has admitted that P.W.-4 had told him that the appellants had killed his mother. In Jaishree Yadav v. State of U.P. (2005) 9 SCC 788 , it has been observed by the Supreme Court that for judging credibility of a witness, the main criterion would be whether their physical presence at the place of occurrence was possible and probable. P.W.-2 has admitted that P.W.-4 had told him that the appellants had killed his mother. In Jaishree Yadav v. State of U.P. (2005) 9 SCC 788 , it has been observed by the Supreme Court that for judging credibility of a witness, the main criterion would be whether their physical presence at the place of occurrence was possible and probable. It is well-settled that conviction can be recorded on the basis of sole witness provided the evidence of such a witness is of a high quality and caliber. The creditworthiness of such witness should be assessed and evaluated on the touchstone whether the version of the witness on core spectrum of the crime has remained intact and is corroborated by other material evidence on record. 23. On evaluation of the testimony of P.W.-2 and P.W.-4 it is abundantly clear that there are material contradictions in the testimony of P.W.-2 and P.W.-4 with respect to the room in which the crime was committed and the manner and sequence of the occurrence. As discussed P.W.-2 has admitted that P.W.-4 had told him that the appellants had killed his mother. Such admission by P.W.-2 is demonstrative of the fact that P.W.-2 had not seen the appellants killing his mother. In fact, P.W.-2 in his cross-examination has stated that when he came out of the room he saw his mother lying in the room and no other person was present in the room. The testimony of P.W.-2 demolishes the presence of the P.W..4 in the house at the time of the occurrence. P.W.-2 has not corroborated P.W.-4's version that P.W.-4 had run away from the house on being assaulted by the appellant-Lakhan Sidu. 24. There is no plausible explanation by the prosecution for non-examination of the Investigating Officer. Taking into account the exposited facts and the evidence adduced by the prosecution, the examination of the Investigating Officer was essential to bring on record the objective findings gathered by the Investigating Officer during investigation with respect to the exact place or room in which the crime was committed and the site plan of the house about the number of rooms in the house. In Ravishwar Manjhi v. State of Jharkhand, (2008) 16 SCC 561 it has been observed by the Apex Court that in cases where the site plan or place of occurrence has not been identified and ascertained then non-examination of the Investigating Officer will tantamount to prejudicing the defence and is a lacuna which is fatal to the prosecution case. In the attending facts and circumstances of the case in hand, it is our firm view that non-examination of Investigating Officer is a lacuna which is fatal to the case of the prosecution. In the backdrop of the discussion made, hereinabove the testimony of P.W.-2 and P.W.-4 does not inspire confidence. As the versions of P.W.-2 and P.W.-4 are replete with material contradictions which demolishes their creditworthiness and reliability. 25. For the foregoing reasons, it is held that prosecution has not been able to prove the charge, under Section 302 read with Section 34 of the Indian Penal Code against the accused-appellants beyond all reasonable doubts, accordingly the appellants namely Vir Singh Sidhu @ Chara, Uday Sidu @ Urdan & LakhanSidu @ Motka are, hereby, acquitted of the charges. The judgment of conviction dated 28.04.2017 and order of sentence dated 29.04.2017 passed by learned Additional Sessions Judge-III, West Singhbhum at Chaibasa, in Sessions Trial Case No. 23 of 2009, is, hereby, set aside. 26. The appellants are directed to be released forthwith from the jail custody, if not wanted in any other case. 27. In the result the criminal appeal is, hereby, allowed and I.A. No.6797 of 2019 stands disposed off.