High Court Jharkhand High Court

Joljus Minz & Ors. vs State Of Jharkhand on 6 March, 2009

Jharkhand High Court
Joljus Minz & Ors. vs State Of Jharkhand on 6 March, 2009
          Criminal Appeal (D.B.) No.284 of 2001
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Against the judgment of conviction dated 02.07.2001 and order of
sentence dated 02.07.2001, passed by learned Addl. Sessions Judge-I,
Simdega, in Sessions Trial No.165 of 1998.

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1. Joljus Minz
2. Chonhas Minz
3. Bishram Minz                         ....      ....     Appellants
                           Versus
The State of Jharkhand                  ....      ....     Respondent

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For the Appellants        :Mr. Mahesh Tiwary, Advocate.
For the State             :Mr. I.N. Gupta, A.P.P.

                     PRESENT
             THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
             THE HON'BLE MR. JUSTICE R.R. PRASAD
Reserved on 15.01.2009                   Pronounced on 06.03.2009
                                ------

1. The appellant nos. 1 and 3, namely, Joljus Minz and Bishram

Minz were put on trial for the charge under Section 302/34 of the Indian

Penal Code along with the appellant no.2 Chonhas Minz charged under

Section 302 of the Indian Penal Code and also with Marga Minz and Daud

Minz, charged under Section 302/109 of the Indian Penal Code, for

committing murder of Rajan Minz. Further, Joljus Minz was also charged

under Section 148 of the Indian Penal Code, whereas all other accused

persons were charged under Section 147 of the Indian Penal Code. That

apart the appellant nos.2 and 3, namely, Chonhas Minz and Bishram Minz

were also charged under Section 323 of the Indian Penal Code.

2. The trial court, while acquitting the Marga Minz and Daud

Minz, found Chonhas Minz guilty for offence under Section 302 of the

Indian Penal Code whereas the other two appellants, namely, Joljus Minz

and Bishram Minz, were found guilty for offence under Section 302/34 of

the Indian Penal Code and all the three were awarded sentence for

imprisonment of life.

2 Cr. Appeal No.284 of 2001

3. The case of the prosecution is that on 27.06.1997, at about

6 o’clock, in the morning, the deceased, Rajan Minz asked his wife, Pushpa

Minz, the informant (P.W.-5) to come to the place of one Rajendra Ram,

for taking pieces of wood as Rajendra Ram has been cutting the branches

of the tree. By saying so, the deceased went ahead. After half an hour

Pushpa Minz, wife of the deceased, came to field of Lodhro Baraik and saw

brother of Rajendra Ram, cutting the branches of the tree. At that point of

time, the deceased along with Rajendra Ram came over there and while

they had had talk with the brother of Rajendra Ram, all the three

appellants, came over there along with their mother-Marga Minz, who

asked from the deceased, as to why, he has taken some earth from the

place where she had put her step but the deceased denied of taking earth.

Upon which Marga Minz exhorted her three sons i.e. all the appellants to

kill him. Daud Minz father of all the three appellants, who was standing

near his house, also exhorted these three appellants to kill the deceased.

Thereupon all the three appellants caught hold of Rajan Minz-the

deceased and the appellant, Joljus Minz inflicted two or three injuries with

the knife on the back of the deceased. Even then the deceased, after

getting rid of himself, from their clutches, started running away, but the

accused persons again caught hold of him and thereupon Joljus Minz

again inflicted knife injury and when his wife Pushpa Minz, the informant

(P.W.-5) came to rescue him, she was also assaulted by the appellants

Chonhas Minz and Bishram Minz, but she any how fled from there. In the

meantime, her husband also started running away but he fell down in the

field of Birbal Baraik, where all the appellants started assaulting him

indiscriminately and the appellant Chonhas Minz assaulted the deceased

on his head with the piece of stone. Thereafter, appellants ran towards

Pushpa Minz, for killing her, but she fled away and while she was coming
3 Cr. Appeal No.284 of 2001

to the Police Station to inform about the occurrence, she met with

Silbanus Tigga (P.W.9), Officer-in-Charge of Bano Police Station and other

police personnel and came to the place of occurrence and they caught

hold of, all four accused persons, including these three appellants.

Thereupon, Pushpa Minz, wife of the deceased gave her fardbeyan (Ext.

3) to said Silbanus Tigga upon which the case was instituted and the same

was taken up for investigation, by P.W.-9, who made an inquest, on the

dead body of the deceased and prepared an inquest report (Ext.-4). The

I.O.(P.W.9) seized piece of stone (Ext.II) and earth smeared with

blood,under Seizure list Ext.5, from the place of occurrence. Sleeper

(Ext.III) of the deceased, was also seized, under Seizure list Ext.5/1. On

the confessional statement, made by the accused, knife (Ext.I), was also

seized from near a Papaya tree, under Seizure list Ext.5/2. Thereafter,

dead body was sent for postmortem examination, which was done by Dr.

C.N. Jha (P.W.1). on examination, following injuries were found on the

person of the deceased.

i. A lacerated wound 4″x1/2″x scalp deep situated on
occipital area in central portion;

ii. A lacerated wound 2″x1/2″x scalp deep situated
on left side of occipital area;

iii. A lacerated wound 3″x1/2″x scalp deep situated
on partial area on left side;

iv. An incised wound 1/2″x1/4″x1″ deep situated on
right side of neck;

v. An incised wound 1″x1/6″x1″ deep situated on
back of neck;

vi. An incised wound 1″x1/6″x1/4′ situated on right
side of back;

vii. An incised wound 1/2″x1/6″x1/4″ situated on left
side of back;

4. On dissection, the occipital bone was found fractured,

Cerebral hemisphere was lacerated. According to the Doctor, the injury

nos. I, II and III were caused by hard blunt weapon, such as stones,

bricks etc. whereas injury nos. IV, V, VI and VII were, caused by sharp
4 Cr. Appeal No.284 of 2001

cutting weapon such as knife or any sharp cutting instrument. Accordingly,

the Doctor issued post examination report (Ext.1) with an opinion that

death was caused due to injury no.1.

5. The Investigating Officer, on completion of the investigation,

submitted charge sheet upon which cognizance of the offence was taken

and in due course when the case was committed to the court of Sessions,

charges were framed to which the accused persons pleaded not guilty and

claimed to be tried.

6. The prosecution in order to prove its case, examined as

many as nine witnesses. Of them P.W.-3 has turned hostile whereas P.W.4

and P.W.7, were tendered for cross-examination. Informant was examined

as P.W.5 whereas, P.W.6 is an hearsay witness and also witness to the

seizure of stone and earth smeared with blood as well as seizure of knife.

P.W.-8 is a formal witness.

7. The learned trial court having placed implicit reliance on the

testimony of the sole eye witness, getting corroboration by the medical

evidence and also by the objective finding of the I.O., found the appellants

guilty and thereby passed an order of conviction and sentence, as

aforesaid.

8. Being aggrieved with the judgment of conviction and order

of sentence, the appellant has preferred this appeal.

9. Learned counsel appearing for the appellants submits that

the entire prosecution case rests on the sole testimony of P.W.-5, who

claimed to have seen the occurrence, but her testimony of seeing the

occurrence, gets belied by her statement made in the cross-examination,

where she had said that she had come at the place of occurrence after

half an hour of the occurrence and as, such she cannot be an eye witness

to the occurrence. Moreover, she being a widow of the deceased is a more
5 Cr. Appeal No.284 of 2001

interested witness and, therefore, the trial court, in view of the

discrepancy, as pointed above, should not have relied on the testimony of

P.W.-5.

10. Learned counsel further submits that it transpires from the

fardbeyan and also from the evidence of P.W.5 that the other eye

witnesses such as Rajendra Ram and Ramesh Ram were present at the

time of occurrence but those witnesses, who could be independent

witnesses have been withheld by the prosecution and as such the

prosecution can certainly be said to have failed, in proving the charge

beyond all reasonable doubt. It was further submitted that even some of

the accused persons have been acquitted, which certainly creates doubt

over the prosecution case and in that event, the trial court erred in holding

the appellants guilty for the charges leveled against them.

11. Having heard learned counsel for the parties and on perusal

of the record, we do find that P.W.-5, the widow of the deceased is the

only eye witness. According to her, while she as well as her husband were

talking with the brother of Rajendra Ram, about taking of the branches of

the wood, all the appellants and their mother Marga Minz, came over

there and Marga Minz made complainant to the deceased, about taking of

the earth from the place, where she had put her step, which was denied

by the deceased and upon it the appellant Joljus Minz inflicted two or

three injuries over the back. In spite of that her husband started running

away but when she came to field of Birbal Baraik, he fell down then Joljus

Minz again inflicted knife injury and hiss brother-Chonhas Minz struck the

head with a piece of stone. Further she has testified that when she was

threatened for life, she fled away and while she was coming to the police

station, she met with the Officer-in-Charge, Bano, Police Station, who

came along with other police personnel to the place of the occurrence and
6 Cr. Appeal No.284 of 2001

arrested four accused persons and under this situation, she in her

evidence at para-12, has testified that she after half an hour of the

occurrence, came at the place of occurrence along with the police

personnel, but that never means that she had not seen the occurrence

rather she seems to have said so in the context that after occurrence,

when she was threatened, she fled away from there and while she was

coming to the police station, she met with the Officer-in-Charge of Banu

Police Station, who as well as other police personnel came to the place of

occurrence and, therefore, that piece of evidence appears to be more

natural and that apart testimony of this witness, gets corroboration from

the fact that a piece of stone and earth smeared with blood (Ext. II) were

seized from the place of occurrence and even knife (Ext.1) used in the

crime, was also seized, which fact gets support from the evidence of I.O.

as well as P.W.-6. Of course neither weapon used nor earth smeared with

blood was sent for forensic examination. Nevertheless, this lacuna as per

the defence, does not affect the prosecution case adversely, as the

prosecution has been able to establish that the piece of stone as well as

earth smeared with blood was seized from the place of occurrence and the

weapon used in the crime, was recovered, at the instance of the accused

persons, particularly when there has been no suggestion by the defence

that occurrence took place at other place than the place of occurrence

established by the prosecution. Further, we do find that the testimony of

P.W.5, gets corroboration from the evidence of Doctor (P.W.1), who found

four sharp cut injuries on the neck and the back of the deceased.

However, criticism has been made by the learned counsel appearing for

the appellants that testimony of P.W.5 is not consistent with medical

evidence as this witness has testified about the inflicting of four injuries on

the back. This inconsistency, in our view is not of such nature, which does
7 Cr. Appeal No.284 of 2001

affect trustworthiness of the witness as position of both the parts of body

being close to each other one, in the circumstances, may have received

injury on the neck though blow would have been targeted at back.

12. Thus, we do find that the trial court, by placing implicit

reliance upon the testimony of P.W.-5., has rightly convicted the appellant.

Consequently, we do not find any illegality or infirmity in the impugned

judgment and hence, it is affirmed.

13. In the result, this appeal stands rejected.

(Amareshwar Sahay, J.)

(R.R. Prasad, J.)
Jharkhand High Court, Ranchi
The 6th March, 2009
N.A.F.R/Ravi