CRIMINAL APPEAL (DB) No. 157 of 1999 (R)
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Against the impugned judgment of conviction and order of sentence dated
18.05.1999 passed in S.T. No. 398 of 1994 by Shri S.K.Mishra, Additional Sessions
Judge, Seraikella.
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Hadi Ram Singh Sardar .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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For the Appellant : Mr. A.K. Sahani, Advocate.
For the State : Ms. Jagannath Mahto, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
By Court: - The sole appellant Hadi Ram Singh Sardar has challenged the
judgment of conviction and order of sentence dated 18.05.1999 passed by
Additional Sessions Judge, Seraikella in Sessions Trial No. 398 of 1994
whereby and whereunder he has been convicted for the offence under
Section 302 of the I.P.C. and sentenced to undergo imprisonment for life.
2. Briefly stated the case of the prosecution is that on 24.02.1992 at
about 11:00 A.M., the informant Hablu Murmu (P.W.-4) and his elder
brother Sona Ram Murmu @ Bedgu (deceased) were going to village
Gotultand on a bullock cart for bringing soil. It is further stated that when
the bullock cart reached in front of the house of appellant, Hadi Ram
Singh Sardar (appellant) suddenly came out of his house and gave 5-6
farsa blow on the deceased due to that deceased received injuries and died
on the spot. It is further stated that on query made by informant,
appellant disclosed that the deceased had illicit relation with his wife and
because of that the appellant killed him.
3. On the basis of aforesaid information the police instituted Chandil
P.S. Case No. 24 of 1994 dated 24.02.1994 under Section 302 of the I.P.C.
and took up investigation. After completing the investigation, police
submitted charge sheet against the appellant under Section 302 of the
I.P.C. Cognizance of the offence under Section 302 was taken and the case
was committed to the Court of Sessions. Learned court below framed the
charge and explained to the accused, to which he pleaded not guilty and
claimed to be tried.
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4. The prosecution had examined altogether 08 witnesses in support
of its case. The prosecution also brought some documents or record and
got the same exhibited. Ext-1 Series – are the signatures of witnesses on
Inquest Report, Seizure List, Fardbeyan and F.I.R., Ext-2 – is the Post-
mortem Report, Ext-3 -is the fardbeyan, Ext-4 – is the Inquest Report, Ext-
5 – is the Seizure List. Learned court below after considering the materials
available on record convicted and sentenced the appellant as aforesaid.
The present appeal has been filed assailing the impugned judgment/order
of the Court below.
5. Shri A.K. Sahani, learned counsel for the appellant challenged the
impugned judgment on various grounds. He submitted that from the joint
reading of statement of P.W.-4 and P.W.-5, it is apparent that there is
material contradiction on the point of manner of occurrence. He further
submitted that P.W.-4 and P.W.-5 are the relatives of deceased and they
are highly interested in the case of prosecution and in the absence of
corroboration from independent witness, it is not safe to convict the
appellant on the testimony of aforesaid two witnesses. It is further
submitted that the seizure of farsa has not been proved properly. The said
farsa has not been produced in court and no proper explanation has been
given, which cast a serious doubt on the case of prosecution. The
prosecution has not been able to prove the motive of the case as well
which also cast a serious doubt on the case of the prosecution. He urged
that the judgment of conviction and order of sentence cannot be sustained
in law.
6. On the other hand, learned A.P.P. submitted that the evidences of
P.W.-4 and P.W.-5, who are the eye-witness of the occurrence, find full
support from the medical evidence as well as from the physical finding of
the I.O. The other prosecution witness including the independent
witnesses such as P.W.-1 and P.W.-3 have supported and corroborated the
statement of eye witnesses. There is no illegality or irregularity in the
impugned judgment warranting any interference by this Court.
7. Having heard the submissions, we have carefully examined the
evidences available on record. P.W.-7 Dr. Lalan Choudhary has deposed
that on 25.02.1994, at about 11:30 A.M, he held post-mortem examination
on the dead body of deceased Sona Ram Murmu and found nine incised
wound mostly on the neck, face and shoulder of the deceased. The Doctor
has given opinion that the injuries are ante-mortem in nature and caused
by sharp cutting weapon like farsa and the cause of death was due to
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shock and hemorrhage. On perusal of cross-examination, we find that
nothing was elicited by the defence on which his testimony can be
discarded. His evidence is wholly acceptable. In our considered opinion,
the prosecution has been able to prove that the deceased Sona Ram
Murmu had died a homicidal death.
8. Now, the question remains to be determined as to whether the
appellant had any hand in the commission of present crime? On appraisal
of the evidence on record, we find that P.W.-4 and P.W.-5 are the eye-
witnesses of the occurrence. P.W.-4 is the informant of this case and he
was present at the time of occurrence with the deceased. He deposed that
on the day of occurrence, at about 11:00 A.M., he along with his elder
brother Sona Ram Murmu @ Bedgu was going for bringing soil on a
bullock cart. He further deposed that the bullock cart was driven by his
brother and he was going in front of the said bullock cart. He further
deposed that at that time itself, the appellant Hadi Ram Singh came out of
his house armed with a farsa and given 5-6 blow of farsa on the neck of his
brother due to that his brother died. It is further stated that thereafter, the
appellant fled away and entered in his house. He had further stated that
after the occurrence, he disclosed about the occurrence to his mother. He
had further stated that his sister-in-law had also witnessed the occurrence.
From perusal of Paragraph Nos. 6, 7 and 8 of deposition, we find
that he had given a vivid description of manner of occurrence during the
cross-examination and there is nothing in these paragraphs on which his
credibility can be doubted. At Paragraph No. 14, this witness had further
stated that he had no enmity with the appellant.
9. P.W.-5, Baishakhi Murmu, is the wife of the deceased. She stated
that at the time of occurrence, she was keeping soil inside the house from
lane and her husband & ‘Devar’ were bringing soil on a bullock cart and
from there she saw that the appellant Hadi Ram was assaulting her
husband with farsa while her husband was on a bullock cart. She had also
stated that at that time her brother-in-law (Dewar) was also present at the
place of occurrence. During the cross-examination, she stated that apart
from herself and her Dewar, other villagers had also witnessed the
occurrence.
10. Learned counsel for the appellant pointed out that in the First
Information Report, the informant (P.W.-4) had nowhere stated that P.W.-
5, who is wife of deceased, had also seen the occurrence from her own eye.
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In this connection, it is well settled that First Information Report is not the
Encyclopedia of entire prosecution case and omission to state an
important fact in the F.I.R. will not render the said fact out of arena of
consideration. The said fact can legally be considered along with other
evidence for arriving at a rightful conclusion. Thus, only because the
name of P.W.-5 has not been given in the F.I.R. as an eye-witness, her
evidence cannot be thrown over board. Thus, the aforesaid contention of
learned counsel for the appellant is not worth acceptable.
11. It is further submitted that there is material contradiction in the
evidence of P.W.-4 and P.W.-5 with regard to the manner of occurrence.
Learned counsel for the appellant had drawn our attention to the
statement of P.W.-4 at Paragraph No. 8 of his deposition where he had
stated that due to the assault his brother (deceased) had fallen on the
bullock cart itself, whereas P.W.-5 at Paragraph No. 3 had stated that due
to assault her husband fell on the ground. The aforesaid contradiction, in
our view, is trifling in nature, having no bearing on the case of
prosecution. Moreover, it appears that P.W.-5 in the cross-examination, at
one place had categorically mentioned that her husband died on the
bullock cart itself. P.W.-5 is a rustic illiterate lady such contradictions in
her statement are not unnatural.
12. The statements of P.W.-4 and P.W.-5 find full support from the
evidence of P.W.-1, Keshav Murmu, who appears to be a co-villager and
independent witness. He had stated that after the occurrence, he came to
the place of occurrence where the informant had disclosed that the
appellant Hadi Ram had assaulted the deceased. He had also stated that
in his presence, the police had recovered a blood stained farsa from the
house of the appellant. He has also proved his signature on the seizure
list. The I.O. who has been examined in this case as P.W.-8, had also
stated at Paragraph-4 that he has seized the blood stained farsa from the
house of appellant. In the cross-examination at Paragraph No. 9, the I.O.
had stated that he had seized the aforesaid ‘farsa’ on the disclosure made
by the appellant. Since the aforesaid statement of I.O. was given in course
of the cross-examination, the same remain unchallenged. Thus, we find
that P.W.-1 and P.W.-8 also corroborated the statement of eye-witness to
the extent that the accused after the occurrence fled to his house along
with farsa. The statements of aforesaid two eye-witnesses, also find full
support from the medical evidence. The Doctor found altogether nine
incised wound on the body of deceased out of that injury No.1, 2, 3, 4, 5, 6
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and 7 are on face, neck and on the shoulder of the deceased. This also
goes to show that the appellant had given repeated farsa blow on the face
and neck of the deceased.
13. The submission of learned counsel for the appellant that P.W.-4 and
P.W.-5 are close relatives of deceased and highly interested in the
prosecution and therefore, their evidences cannot become the basis for
conviction is also not worth acceptable. Recently, their lordships of
Supreme Court in a decision reported in 2009 (1) JLJ SC 1 at Paragraph
No. 7, have held as follows:
“Merely because the eye-witnesses are family members their
evidence cannot per se be discarded. When there is allegation of
interestedness, the same has to be established. Mere statement that being
relatives of the deceased they are likely to falsely implicate the accused
cannot be a ground to discard the evidence which is otherwise cogent and
credible. We shall also deal with the contention regarding interestedness
of the witnesses for furthering prosecution version. Relationship is not a
factor to affect credibility of a witness. It is more often than not that a
relation would nor conceal actual culprit and make allegations against an
innocent person. Foundation has to be laid if plea of false implication is
made. In such cases, the court has to adopt a careful approach and analyse
evidence to find our whether it is cogent and credible.”
14. As noticed above, P.W.-4 had categorically stated that he or his
family members have no enmity with the appellant. Under the said
circumstance, we find no reason, why these witnesses will falsely
implicate the appellant and conceal the actual culprit.
15. The submission of learned counsel for the appellant that the seizure
has not been proved because P.W.-1 had stated that he went to the place of
occurrence at about 12:00 in noon and at that very time, the said seizure
was made, whereas the I.O. has stated that the said seizure was made at
1:30 P.M. It is submitted that since there is contradiction regarding the
time of seizure, the alleged seizure is doubtful. In our view, the said
contradiction is minor in nature having no bearing on the case of
prosecution. So far as the submission of learned counsel for the appellant
that the motive has not been proved, by now, it is well settled that when
there is a direct, clinching and acceptable evidence on the point of
occurrence then absence of motive becomes irrelevant. Since the ocular
testimony of prosecution witnesses are wholly reliable and acceptable,
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only on the ground of absence of motive, direct evidence cannot be
thrown over board.
16. Now coming to the submission of learned counsel for the appellant
that the said farsa has not been produced in the court and no explanation
for the same was given, it may be mentioned that P.W.-8, the I.O. has
stated in his deposition at Paragraph No. 10 that he had sent the farsa to
forensic science laboratory for chemical examination and till the
submission of charge sheet, the report of forensic science laboratory was
not received by him. Thus, the reason for not producing the ‘farsa’ in
court has been sufficiently explained. In that view, the aforesaid
submission of learned counsel for the appellant is not acceptable.
17. In view of the ocular testimony of P.W.-4 and P.W.-5 coupled with
the seizure of blood stained farsa on the disclosure of appellant and also
taking into consideration that the aforesaid ocular version of P.W.-4 and
P.W.-5 find full corroboration from medical evidence and physical finding
of I.O., we are of the view that the prosecution have been able to bring
home the charge levelled against the appellant beyond the shadow of all
reasonable doubt. We are of the considered opinion that learned court
below has rightly convicted and sentenced the appellant. We find no
infirmity / illegality in impugned judgment warranting any
interference by this court.
18. In the result, this appeal fails and is accordingly dismissed.
(Narendra Nath Tiwari, J)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 19 /03/2009
Sunil/NAFR