The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 427 of 2014 AGAINST THE JUDGMENT OF CONVICTION DATED 13.5.2014 AND ORDER OF SENTENCE DATED 15.5.2014 PASSED BY LEARNED ADDITIONAL SESSIONS JUDGE-1st BOKARO, IN SESSIONS TRIAL NO.184 OF 2012. Pran Manjhi son of late Santosh Manjhi, resident of village Kurna, P.O and P.S.- Pindorj, District- Bokaro, Jharkhand. .........APPELLANT(S) -Versus- The State of Jharkhand ….……RESPONDENT …… For the Appellant(s) : Mr. Praveen Shankar Dayal, Advocate. For the State : Mrs. Vandana Bharti, A.P.P. P R E S E N T SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. …...... J U D G M E N T C.A.V. On: 29.07.2024 Pronounced On: 21/08/2024. Ananda Sen, J: This Criminal Appeal is directed against the judgment of conviction dated 13.5.2014 and order of sentence dated 15.5.2014 passed by learned Additional Sessions Judge-I, Bokaro, in Sessions Trial No.184 of 2012, whereby, the appellant have been convicted under Section(s) 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs.10,000/- . 2. Learned counsel appearing on behalf of the appellant submitted that though P.Ws. 3 and 9 posed to be the eye witnesses, but if their evidence is evaluated properly, there can be no iota of doubt that they were not the eye witnesses and were not present at the place of occurrence. He further submitted that P.W. 9, who claims to be an eye witness, stated that between the place of occurrence and the place where she was i.e. near the well, there is a house, which clearly proves that her vision was obstructed, thus she cannot be said to be an eye witness and she could not have seen the assault. He also argued that P.W.1 in his evidence has not whispered about the presence of P.W.3, which suggests that evidence of P.W. 3 is doubtful. It is also evident that the deceased, after being inflicted by the blow immediately became unconscious, thus, there was no scope for him to give any statement before any person, thus the alleged oral dying declaration is nothing, but after thought by the prosecution witnesses. There Page/1 is dispute about the nature of murder weapon, which has not been recovered, which is fatal for the prosecution. He further submitted that admittedly, there was no dispute between the deceased and this appellant, who is the full brother and that being so, there is no motive to commit the murder of the deceased. Counsel for the appellant argued that even the blood stained earth was not sent to the Forensic Science Laboratory for proper examination and in absence of report from FSL, the appellant cannot be held guilty. As per him, it has come in evidence that the deceased was a habitual drunker and a thief, who often used to steal household articles in the village, thus there is high probability that the villagers had killed the deceased. He further contended that these factors make the prosecution case doubtful so far as involvement of this appellant is concerned, thus, this appeal needs to be allowed and the appellant be acquitted. 3.
Legal Reasoning
So far as identification of this appellant is concerned, we find that he was not a stranger. He is the brother of P.W.1, 2 and 3 and the son of P.W. 5 and the uncle of P.W.4. Further the occurrence happened in the evening. Though P.W. 5 stated that there was no light, but since this appellant is related by blood with the witnesses, there was no doubt about his identification. 14. Even though from the evidence I find that no one has seen the assault but P.Ws. 1, 2, 3 and 5 reached immediately after the assault. P.W. 2 saw this Page/7 appellant with the axe, P.W. 5 saw this appellant fleeing from the place of occurrence. There is nothing to suggest that there was other persons there who also could have committed the act. The mother also stated that the deceased told her that this appellant is the assailant. The defence has not created any reasonable doubt in mind of this Court that this appellant is not the assailant. 15. Thus, what has been held above, I hold that the prosecution has been
Arguments
Counsel appearing on behalf of the State submitted that P.W. 9- is the eye witness and one line of the deposition cannot be extracted from the entire evidence rather, the entire deposition has to be read as a whole, which would suggest that P.W. 9 is an eye witness. She further stated that though there exists a house between the place of occurrence and where the P.W. 9 was standing, but yet her clarification given during evidence clearly suggests that she is an eye witness. She further argued that the mother of the deceased and the appellant has categorically stated that the deceased, soon after collapsing, stated that it was this appellant, who had assaulted him and there is nothing to disbelieve the statement of the mother. She also submitted that the presence of the mother of the deceased and the appellant at the place of occurrence is proved by the statement of other witnesses, who stated that after hearing the scream, the mother along with other witnesses reached the place of occurrence when this appellant was seen fleeing from the place of occurrence. It has also been argued that the conduct of the appellant would also suggest the guilt of the appellant, therefore, the impugned judgment needs no interference. 4. Prosecution case as per the the fardbeyan of the informant (P.W.1) is that on 4.7.2011 at about 6 p.m, when he was in his house it was raining. His younger brother Nepal Kumar Hembrum was going to feed the pigs at upper tola house. When he reached the PCC road of the village near Doman Manjhi's house, his elder brother- Pran Manjhi (this appellant) suddenly came from behind and with intention to kill gave an axe (kulhari) blow on the back of the head of Nepal Hembrum causing serious bleeding injuries. On raising hue and cry, the informant and his wife (who was fetching water from the well), rushed to save him but the Page/2 accused fled away with the axe. The informant brought his brother to his house with the help of neighbour and his mother and informed his other brothers and took the injured to Nilam Nursing Home for treatment with the help of his brother Fulchand Manjhi and others from where the injured was taken to higher centre but he died on the way. The dead body was brought to the house and information was given to the police. On the basis of his fardbeyan, Pindrajora P.S. Case No. 79/2011 was registered under Section 302 of the Indian Penal Code. 5. The police after investigation submitted chargesheet upon which the Court took cognizance of the offence under Section 302 IPC and the case was committed to the Court of Sessions. The Court also framed charge under Section 302 of IPC. 6. The prosecution in support of its case, has produced ten witnesses i.e. P.W.1- Kundal Manjhi, P.W.2- Shyam Lal Manjhi, P.W3- Fulchand Manjhi, P.W.4- Suman Kumar Hembrum, P.W.5- Sohagi Debya, P.W.6- Dr. Vikash Kumar, P.W. 7- Mochi Ram Soren, P.W. 8- Joshi Lal Manjhi, P.W.9- Birani Devi and P.W.10- Arun Kumar. P.W.-1 Kundal Manjhi, is the informant of this case. He deposed that on 4.7.2011 at 6:00 p.m he was at home. At that time his younger brother was going to feed the pigs at upper tola house. When this witness reached near the house of Doman Manjhi, this appellant- Pran Manjhi suddenly came there and with intention to kill gave kulhari blow from behind on the head of the deceased, as result of which, the deceased fell down and the appellant fled away from there. He further deposed that at that time his wife was fetching water from the well and on hearing the scream of the deceased, she went there where she saw that the injured falling on the ground. He deposed that his wife went to house and informed about the occurrence to her husband i.e. the informant. Thereafter, this witness brought the injured to his house with the help of neighbour and his mother and he informed his other brothers. Thereafter they took the injured to police Station from where they took the injured to Nilam Nursing Home and on the advice of doctor they took the injured to higher centre, but he died on the way. He deposed that thereafter the police came in his house and recorded the fardbeyan and he identified the same. He deposed that he and his brother put their signature on the fardbeyan, which have been marked as Exts. 1 and 1/1. He also deposed that the police prepared the inquest report and on its carbon copy, he and his brother also put their signature, which have been marked as Exts.- 2 and 2/1. In cross-examination, he deposed that he has five brothers and there was no Page/3 partition amongst them. He deposed that the appellant and the deceased often used to take liquor. He deposed that the deceased was not in the habit of stealing. He deposed that the distance between the house of the deceased and the place of occurrence is fifteen metre. He stated that he is unaware of the contents of the inquest report, but on the direction of the police, he had put his signature on it. P.W.-2: Shyam Lal Manjhi, is the brother of the deceased as well as the appellant. He deposed that he was informed about the occurrence by P.W. 1. He deposed that he does not know about the date of the occurrence. In examination in-chief, he stated that he was called by Kundal (P.W.1) upon which he went there and saw the deceased. He further deposed that he went to Sadar Hospital, Chas and while returning the deceased died. In cross-examination, he deposed that there was no land dispute among his brothers. He further deposed that the deceased died due to the tangi blow given by the appellant. P.W.-3, Fulchand Manjhi, is the full brother of the deceased as well as the appellant. This witness has deposed that the occurrence had taken place on 4.7.2011 at 6 p.m. He deposed that he was present while the fardbeyan of the informant was being recorded. He deposed that at the time of occurrence he was in the house when his brother Kundal (informant) told him that Pran Bhaiya had assaulted the deceased who is serious. When he went to the place of occurrence, he saw the deceased in injured condition. He further deposed that the injured told him that he was hit by tangi. He saw injury on his neck, frontal and back part of his head. He deposed that he along with others took the deceased to Nilam Nursing home for treatment but they were informed by the Doctor that he will not survive. Thereafter they took the deceased to sadar Hospital, where he was also informed that the injured will not survive and on the way to house, the deceased died. P.W.-4, Suman Kumar Hembrum, is the son of the deceased. He stated that the occurrence took place on 4.7.2011 at 6 p.m., when his father (the deceased) was going to feed his pigs at upper tola and on the way, the accused gave five axe blows on the head and neck of the deceased. He stated that at the time of the incident, he was studying in his house and on hearing screams of his father, he went there. He further deposed that his father was taken to hospital and from there he was advised to take him to other hospital, but in the way, he died. In cross-examination, he deposed that before he reached the place of occurrence, Kundal Manjhi (P.W.1) was there and he found his father unconscious. Page/4 P.W.-5, Sohagi Debya, is the mother of the deceased as well as the accused. She deposed that occurrence had taken place two years back at night in Kulhi and Pran (appellant) killed the deceased. She further deposed that she saw the appellant fleeing away. She deposed that she had gone to the place of occurrence immediately after the assault of the deceased. She specifically deposed that when she reached the place of occurrence, she saw him fallen down on the ground and she was told by the deceased that he has been assaulted by Pran Manjhi. She further deposed that the deceased was not a thief and he did not use to drink liquor and he was not in the habit of stealing in the village. P.W.-6, Dr. Vikash Kumar, who conducted the postmortem on the dead body of the deceased. He found rigor mortis present on both upper and lower limbs, eyes closed, mouth partially opened and tongue inside. He found external injuries such as: (1) incised wound 2 ½ ” x 1” x ½” on the left side of the neck, (2) Incised wound 4” x 1” x bone deep on the frontal region of skull, (3) Lacerated wound 1 ½ “ x 1” x bone deep on the occipital region of the skull. On dissection, the doctor found as follows:- Skull fracture of frontal and occipital bone, brain-blood and blood clots were found under skull but hyoid bone was intact. Trachea and larynx were found congested. Semi amount of blood was found in the right chamber of the heart and left chamber was fund empty. Lungs, liver, spleen and kidney were all found congested, stomach and bladder were empty. As per the Doctor's opinion, the cause of death is head injury. P.M. Report was marked as Ext.-3. In cross-examination, the doctor stated that injury No. (3) cannot be caused by kulhari may be caused by lathi or rod. However, Injury Nos. (1) and (2) can be caused by axe or sword. P.W.-7, Mochi Ram Soren and P.W.-8, Joshi Lal Manjhi have been declared hostile by the prosecution and nothing could be extracted from their depositions. P.W.-9, Birani Devi is the wife of the informant (P.W.1). She deposed that the occurrence took place three years ago and at that time she was near the well from where she saw that the deceased was hit by the appellant by axe. When she reached there, the appellant fled away. She further deposed that she took the deceased to the house and thereafter to the hospital where the doctor told that he will not survive and thereafter, he died. In cross-examination, she deposed that the occurrence took place in the Page/5 evening, when she was near the well and it was getting dark. She further deposed that between the well and the place of occurrence, there is house and due to which, the place of occurrence was not visible from the well, thus, she reached the place of occurrence by the side of that house. She specifically stated that when she reached the place of occurrence, she saw tangi (axe) in the hand of the appellant. P.W.-10, Arun Kumar, is the Investigating Officer of this case. He deposed that he recorded the fardbeyan (Ext.-4) of Kundal Manjhi at about 10 O'clock in day time near the house of P.W. 1. This witness has identified his writing and signature put on the fardbeyan. This witness has also proved the formal FIR, written by constable Sheo Charan Rajwar and his signature, which has been marked as Ext.5. He also deposed that he has prepared the inquest report of the deceased, which has been marked as Ext.-6. He also deposed that during investigation he recorded the re-statement of the informant and inspected the place of occurrence. After taking statement of the witnesses and completing investigation, he submitted the chargesheet. 7. Several documents were also produced and exhibited by the prosecution to prove its case. 8. After closure of evidence, the statement of the appellant was recorded u/s 313 Cr.P.C and after hearing the parties the trial court convicted the appellant under Section 302 of the Indian Penal Code and sentenced him as aforesaid. 9. After hearing the learned counsel for the parties and after going through the evidences of this case, I find that the deceased and this appellant are full brothers. P.W. 1 is the witness, who is none but the brother of this appellant as well as the deceased, who stated that when he reached near the house of Doman Manjhi, this appellant suddenly came there and gave a blow with axe from the behind on the head of the deceased, as a result of which, he fell down. He further stated that at that time, his wife- P.W.9 was fetching water from the well. P.W.9 deposed that she was near the well when she saw that the deceased was struck by this appellant by axe. Though P.W.-9 stated that there was a house in between the well and the place of occurrence, and she had to reach the place of occurrence by the side of the house, but she stated that when she reached near the place of occurrence, she saw this appellant with axe in his hand. She stated that the distance between the place of occurrence and her house is ten meters. She also stated that she thereafter called the P.W.1, who is her husband, who then came. P.W. 1 also stated that it is this witness who called her. Thus it clear that none of Page/6 this two witnesses has seen the assault. P.W. 2 has only seen this appellant with the axe at the place of occurrence. 10. P,.W.3 is the full brother of the deceased, who was informed by P.W. 1 about the assault. He stated that he immediately went to the place of occurrence and saw the deceased in injured condition. He stated that the deceased told him that he was hurt by tangi. One of the most important witnesses is P.W.5, who is none but the mother of the deceased as well as this appellant. She stated that when she went to the place of occurrence, she saw this appellant fleeing away. She saw the deceased fallen on the ground and the deceased told her that it is this appellant who has assaulted him. Being the mother of the deceased and this appellant, there was no occasion for her to give a false statement implicating this appellant, who is none but her son. Further she stated that she has seen this appellant fleeing away when she went to the place of occurrence and similarly P.W. 2 has seen this appellant with the axe at the place of occurrence when she reached there. The defence could not prove that she was not present at the place of occurrence. That fact that the deceased was alive for some time after sustaining the injury is evident from the statement of P.Ws. 3 and 5 also. 11. The mother of the deceased (P.W.5) in paragraph 8 stated that the deceased was wearing a lungi, Janghiya (undergarments) and shirt when he was assaulted. This fact also gets support from Ext.-6, which is the inquest report, wherein, it has been recorded that the deceased was wearing Lungi, undergarments and shirt. Thus, she had seen the body of the deceased and her presence at the place of occurrence cannot be doubted. In cross-examination, P.W. 5 stated that the deceased had disclosed before her that this appellant had assaulted him. 12. All the witnesses who had seen the deceased had stated that there was injury on the neck and frontal and back part of his head. The doctor also found the wound on the neck and frontal region of the scalp and occipital region. Thus the medical evidence supports the version of all the witnesses. 13.
Decision
able to prove its case beyond all reasonable doubt. In the result, this appeal is dismissed. Consequently, the judgment of conviction dated 13.5.2014 and order of sentence dated 15.5.2014 passed by learned Additional Sessions Judge-I, Bokaro, in Sessions Trial No.184 of 2012 is hereby, confirmed. 16. Since the appellant is on bail, his bail is cancelled. The appellant is directed to surrender before the Court concerned within four weeks to serve the rest of the sentence, failing which, the Trial Court will take appropriate steps to take the appellant in custody. 17. The Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. 18. Pending interlocutory application, if any, is also disposed of. GAUTAM KUMAR CHOUDHARY, J. - I agree. (GAUTAM KUMAR CHOUDHARY, J.) (ANANDA SEN, J.) Jharkhand High Court, Ranchi. Dated: 21/08/2024 AFR/Anu/Cp.-3. Page/8