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2022 DIGILAW 711 (JHR)

Durlabh Pradhan v. State of Jharkhand

2022-06-23

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 02.03.2005 passed by the learned 1st Additional Sessions Judge, Seraikella in S.T. Case No.290 of 1996, arising out of Rajnagar P.S. Case No.40 of 1991, corresponding to G.R. Case No.279 of 1991, whereby the sole appellant has been convicted for the offence punishable under Sections 201/34 of IPC and sentenced to undergo R.I. for three years and fine of Rs.5,000/- (Rupees five thousand) and in default of payment of fine of Rs.5,000/-, (Rupees five thousand) he was further directed to undergo R.I. for three months. 2. The allegations against the appellant arose in the wake of the statement of informant PW – 4, who stated that his daughter-in-law Bale Majhian on 01.05.1991 went and informed her father in law that her husband Vikram Majhi on 01.05.1991 had gone to the market with her but her husband joined Sidha Mardi of village Richituka and did not return with her. It is stated that the next day on 02.05.1991 Sidha Mardi came and informed her that her husband had gone with some another woman and from this date onwards, the son deceased was missing and frantic searches were made, in which course Sidha Mardi allegedly told that Pitho Murmu and two others along with Vikram Majhi were seen by him taking hariya liquor. The informant then came across the dead remains of a body allegedly identified as that of his son Vikram Manjhi. 3. On the basis of the statement, the FIR Ext-1 was registered vide Rajnagar P.S. Case No. 40 of 1991 under sections 302/201/34 of IPC and the investigation was carried on and after completion of investigation charge sheet was submitted against the accused persons. Learned trial court after framing the charge against the appellant along with other accused persons for the offence punishable under Sections 304/34 and 201/34 of IPC, conducted the trial of the case and after conclusion of the trial, the impugned judgment of conviction and order of sentence is passed against the sole appellant Durlabh Pradhan and another co-accused Pitho Murmu was acquitted from the charges levelled against him and the said impugned judgment of conviction and order of sentence passed by the court below is under challenge in this appeal. 4. Heard learned counsel Mr. R.C.P. Sah appearing on behalf of the sole appellant and learned APP Mr. 4. Heard learned counsel Mr. R.C.P. Sah appearing on behalf of the sole appellant and learned APP Mr. Jitendra Pandey appearing on behalf of the State. 5. Learned counsel appearing on behalf of the appellant submitted that the impugned judgment of conviction and order of sentence is bad in law in absence of examination of the I.O. and the doctor and there is no eyewitness in this case. Further it has been contended that no DNA test was conducted and therefore the dead body of the deceased Vikram Manjhi could not be ascertained and determined. It has further been pointed out that from the deposition of PW – 4 Singhu Majhi, it is clear that he identified the dead body of the deceased as stated in the cross-examination. It has further been pointed out that PW – 2 Sagar Hansda was not examined under Section 161 of Cr.P.C. and one Sidha Mardi, who informed the informant PW- 4, but her husband was also not examined and the learned court below in para 10 of the impugned judgment has observed that last seen is also not established by the evidences of eyewitness PW – 2 Sagar Handa and PW – 3 Karn Mardi, as their evidences are not reliable because PW – 2 Sagar Hansda has stated that he had seen the appellant carrying the dead body of deceased at a distance of 50 to 60 feet and due to fear, he did not raise any alarm, which is not practically possible. 6. Learned counsel appearing on behalf of the appellant pointed out that the deposition of PW – 5 Raju Hansda, by which it appears that the possibility of causing murder of the deceased was disclosed by this witness PW – 5 to the father-in-law of the deceased because the deceased is said to have in illicit relationship with the elder sister of his wife. Further it has been pointed out that the learned judicial Magistrate – PW -10 (who recorded confessional statement) has stated in para 8 that he could not say that the person standing outside can hear the statement of person and also he cannot say that the person giving statement are real person and therefore relying upon versions of these witnesses and passing the order of conviction on the basis of versions of these witnesses are bad in law and fit to be set-aside. 7. 7. On the other hand, learned APP appearing on behalf of the state opposed the contentions raised on behalf of the appellant and submitted that the learned trial court below has rightly appreciated the evidences adduced on behalf of the prosecution, particularly PW -3 Karan Mardi and PW – 2 Sagar Hansda, who have categorically stated about the involvement of this appellant in the commission of the offence, which has been duly corroborated by the PW-10. Further it has been submitted that the non-examination of the I.O. and the doctor has not caused any prejudice to the defence of the appellant and therefore the learned trial court has rightly passed the impugned judgment of conviction and order of sentence based on the legal evidences and there is no legal point to interfere in the impugned judgment of conviction and order of sentence and as such, this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 8. Having heard learned counsels for both the sides, perused the record of the case including the lower court records. 9. It is found that in order to substantiate this case, the prosecution has been able to examine altogether 10 witnesses, who are PW – 1 Bharat Kant Sarangi, PW – 2 Sagar Hansda, PW – 3 Karn Mardi, PW – 4 Singhu Majhi, PW – 5 Raju Hansda, PW – 6 Pitho Tudu, PW -7 Kamleshwar Mahato, PW -8 Guru Charan Mahato, PW – 9 Umakant and PW -10 Hira Prasad Pandy, J.M. 10. It is found that the initially the charge was framed for the offence punishable under Section 302/201/34 of IPC, but after the conclusion of the trial, this appellant was acquitted for the offence punishable under Section 302/34 of IPC and he has been convicted for the offence punishable under Section 201/34 of IPC for causing the disappearance of the evidence of the offence of murder in order to screen the offender. In this view of the matter, this Court confines the discussion of the evidence only on the point that as to whether this accused appellant had been involved in the commission of the offence punishable under Sections 201/34 of IPC in order to cause the disappearance of the evidence, i.e. the dead body of the deceased in order to screen the offender or not, vis-a-vis, the appreciation of the evidences available on record by the learned court below. 11. PW – 1 Bharat Kant Sarangi is a formal witness, who has proved Ext. – 1, which is the FIR in the handwriting of the officer in-charge of Rajnagar police station. 12. PW – 2 Sagar Hansda is the important witness, who is the eyewitness and his earlier statement was also recorded under Section 164 of the Cr.P.C. before the learned Judicial Magistrate (PW -10), upon which, he has proved the signature, which has been marked as Ext.- 2 and the statement recorded under Section 164 of Cr.P.C has been marked Ext. – 6. He has categorically deposed that the sole appellant Durlabh Pradhan along with the co-accused persons was seen by him carrying the dead body of the deceased Vikram Manjhi and also in Examination-in-Chief he categorically supported this version that the appellant was carrying the dead body of the deceased along with co-accused persons and therefore this witness has fully supported the case of the prosecution. 13. PW – 3 Karan Mardi during his examination in Chief has admitted that his statement was recorded earlier by the Judicial Magistrate under Section 164 of Cr.P.C. and he had deposed that he had seen the appellant carrying the dead body along with co-accused persons. His statement recorded by the Judicial Magistrate PW -10 has been proved, which has been marked as Ext. 6/2. These two witnesses PW – 2 Sagar Hansda and PW – 3 Karan Mardi have substantiated the case of the prosecution and both of them had seen the appellant carrying the dead body and their depositions recorded during the course of trial are falling in line with the statements recorded under Section 164 Cr.P.C. by the PW – 10, which has been marked as Ext. 6 & 6/2. 6 & 6/2. From perusal of the Ext.6 and 6/2, it is found that there is no discrepancies in their earlier statements and the subsequent statements and they have uniformly and consistently deposed that this appellant was carrying the dead body and therefore the charges levelled against the sole appellant has been substantiated by both of them without any discrepancies. 14. PW – 4 Singhu Majhi is the father of the deceased and he has proved his signature on the FIR, which has been marked as Ext. – 3. This witness had identified the dead boy of his son in a very bad condition and he stated in his deposition that it was very difficult to identify the dead body and thus the depositions of two witnesses PW – 2 and PW- 3 that the appellant was carrying the dead body in order to disappear the same is in conformity with the deposition of PW – 4. 15. PW – 5 Raju Hansda is the maternal uncle of the deceased and he did not depose any relevant fact with respect to causing disappearance of the dead body, although he had stated about the commission of the offence of murder of the deceased and therefore the learned court below has rightly appreciated his evidence. 16. PW – 6 Pitho Tudu has been declared hostile and he has admitted his signature on the seizure list, which has been marked as Ext. -4. 17. PW -7 Kamleshwar Mahato has also been declared hostile. 18. PW -8 Guru Charan Mahato has admitted his signature as Ext- 5 & 5/1 on the two seizure lists one being the blood stained soil and basuli, alleged to have been recovered and secondly one full pant (trouser) allegedly recovered at the instance of Ramai Pradhan, accused (since deceased.) 19. PW – 9 Umakant has also been declared hostile. 20. The learned Magistrate has been examined, as P.W. 10, who recorded the statement of the witnesses PW – 2 and PW – 3 under Section 164 of Cr.P.C., and he has proved the earlier statement of the witnesses, which have been marked as Ext. – 6, 6/1 and 6/2 under Section 164 of Cr.P.C. by Sagar Hansda PW – 2, Umesh Basuki and PW - 3 Karan Mardi respectively. 21. – 6, 6/1 and 6/2 under Section 164 of Cr.P.C. by Sagar Hansda PW – 2, Umesh Basuki and PW - 3 Karan Mardi respectively. 21. From the depositions and testimonies of the witnesses as discussed elaborately in foregoing paragraphs, it is found that the prosecution has been able to establish that the appellant along with other co-accused persons were seen carrying the dead body and PW – 10 explicitly stated in para 3 & 5 that there was no police officer with the witnesses , who came in person and the defence taken on behalf of the appellant that the statements were not recorded in the way, as it has been prescribed in Section 164 of Cr.P.C. because of the fact that all the witnesses were examined simultaneously, but this witness PW – 10 had clarified in para 7 that the statement of the witnesses have been recorded separately and he has also proved the statement of the witnesses recorded particularly PW – 2 and PW – 3, which have been exhibited as Ext. -6 and 6/2, and thus the testimonies of the witnesses PW – 2, PW -3 & PW -10 along with the documentary evidences of their earlier statements vide Ext.6 & 6/2, it is well founded that the dead body of the deceased Bikram Manjhi was being carrying out by this appellant along with co-accused persons. 22. Leaned trial court had rightly appreciated the evidences available on record and came to the conclusion that the appellant Durlabh Pradhan was in full knowledge that the offence of murder was committed and it was only thereafter he intended to screen the offender and thereafter he disappeared the dead body so that the dead body could not be known to others and therefore the charges levelled against the appellant for the offence punishable under Section 201 of IPC is substantiated and accordingly he was rightly convicted for the offence punishable under Sections 201/34 of IPC by the learned court below. 23. In the result, this Court upholds the conviction of the sole appellant for the offence punishable under Sections 201/34 of IPC passed by learned 1st Additional Sessions Judge, Seraikella in S.T. Case No.290 of 1996, arising out of Rajnagar P.S. Case No.40 of 1991, corresponding to G.R. Case No. 279 of 1991. 24. 23. In the result, this Court upholds the conviction of the sole appellant for the offence punishable under Sections 201/34 of IPC passed by learned 1st Additional Sessions Judge, Seraikella in S.T. Case No.290 of 1996, arising out of Rajnagar P.S. Case No.40 of 1991, corresponding to G.R. Case No. 279 of 1991. 24. On the point of sentence the learned counsel appearing on behalf of the appellant submitted that this offence is said to have been committed long back in the year 1991 and now the appellant has become about 50 years old and therefore a lenient view may be taken in awarding the sentence for the offence punishable under Sections 201/34 of IPC. 25. Having taking into consideration the aforesaid submission, it is found that this offence is said to have committed in the year 1991 and the appellant has now become about 52 years old and there is nothing on record to show about his criminal history. Further it is also found that he is suffering the misery and trauma of criminal proceeding for a long period of time for about more than 30 years and therefore this Court finds just and fair not to send the appellant again in jail by awarding sentence of further imprisonment and accordingly the sole appellant Durlabh Pradhan is sentenced to the imprisonment, for a term of the period already undergone by him. It appears that the sole appellant has already remained in jail for about four months and further it is also found from the record that the learned court below has awarded the sentence of fine also to a sum of Rs.5,000/-, (Rupees five thousand) which has already been paid by the appellant and therefore instead of awarding further sentence of imprisonment, this Court finds just and proper that the appellant is awarded the sentence of imprisonment for the period already undergone by him and further a sentence of fine by way of compensation is also imposed to a sum of Rs.10,000/- (Rupees ten thousand) to be paid by the appellant to the father of the deceased PW – 4 Singhu Manjhi and in case of default of payment of fine the appellant shall go under simple imprisonment for the period of 2 (two) years. It is made clear that this fine imposed by this Court is in addition to the earlier fine, which has been imposed by the learned court below and paid by the appellant. Further the present fresh fine of Rs.10, 000/- (Rupees ten thousand) is awarded by this Court to the sole appellant is by way of compensation to be paid to the father of the deceased Singhu Manjhi. Hence the Court below is accordingly directed to give proper notice to the PW – 4 Singhu Majhi in order to receive the amount of fine of Rs. 10,000/- (Rupees ten thousand) to be deposited by the appellant in the trial court. 26. The learned court below is further directed to take all necessary steps as per the provisions of law to ensure that the appellant serves the imprisonment of two years in default of payment of fine of Rs.10,000/- (Rupees ten thousand) by way of compensation as awarded above. The appellant may be allowed to deposit the said fine amount in the concerned Civil Court through its Nazarat in order to disburse the same to the PW – 4 Singhu Majhi on its deposit . At the moment he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the father of the deceased P.W. 4 Singhu Manjhi and on his appearance the said fine amount so deposited by the appellant shall be disbursed to him. In case if the said victim P.W. 4 Singhu Manjhi is not traceable or not available or not found at the given address or dead, the same shall be disbursed to his close or near relatives or kith and kin of the said victim as the concerned learned trial court may deem fit and proper. 27. Since the appellant is on bail, he is given 4 months’ time to deposit the aforesaid fine amount by way of compensation and thereafter the learned trial court shall do needful as directed above. 28. This appeal is dismissed as above. 29. Let the Lower Court Record be sent back forthwith to the concerned court below with a copy of judgement for its compliance.