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
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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.
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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