Diwali Choudhary @APPELLANT@Hash State of Jharkhand

B.B.Mangalmurti, J.

Heard learned counsel for the appellant and learned counsel for the State.

This appeal is directed against the Judgment of conviction and Order of sentence dated 18.03.2005, passed by the Sessions Judge, Sahibganj, in

Sessions Trial No. 126 of 1995 holding the sole appellant guilty under Section 302/34 and Section 109/34 of the Indian Penal Code and sentenced to

undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and further sentenced to rigorous imprisonment for life under

Sections 109 and 302 of the Indian Penal Code and both the sentences shall run concurrently.

The prosecution case was instituted on the basis of the fardbeyan of Umesh Chandra Oraon, son of Jhaksu Oraon recorded by S.I. Francis Toppo,

Officer-in-Charge, Jarwatori O.P. on 20.04.1994 at 8.45 p.m. at emergency ward, Sadar Hospital, Sahibganaj where he stated that today in the

evening at 7 p.m. he told Diwali Choudhary that since you have already constructed your own house so requested him to vacate his house. At that

time, the appellant was sitting in his betel shop situated near the house but he refused to vacate the house of informant. Thereafter, appellant closed

his betel shop and went inside the house. After some moment, Diwali Choudhary, Raju Choudhary, Manoj Choudhary and mother of appellant came

near him and started quarrel with him.

Meanwhile, Diwali Choudhary ordered Manoj Choudhary to shoot him. Thereafter, Raju Choudhary took out his pistol which was concealed in his

clothe (Lungi) and fired upon the informant. On seeing this, his father Jhaksu Oraon tried to intervene in the matter but Raju also fired upon his father

Jhaksu, as a result of which after sustaining injury he fell down. This occurrence of firing was seen by several persons and they also chased and

caught Raju Choudhary but other accused managed to escape. The father of informant was taken to the hospital where he was declared dead. Since

the informant was not in a position to sign over it so he put his left thumb impression in presence of Kali Charan Dhangar and Ram Lal Mandal.

The fardbeyan was forwarded to Officer-in-Charge, P.S. for registering the case and accordingly Borio P.S. Case No.60 of 1994 dated 21.04.1994

under Section 302/34 and Section 27 of the Arms Act was registered. The further case is that dying declaration of Informant , Umesh Chandra Oraon

was recorded by the Executive Magistrate on the same day i.e. on 20.04.1994 at 9.30 p.m. before his death.

After investigation, charge sheet was submitted against Raju Choudhary, Diwali Choudhary, Manoj Choudhary and Laxmania Devi and after taking

cognizance, the case was committed to the Court of Session. Since Raju Choudhary absconded, so he was declared absconder and his trial was

separated. The charge upon remaining three accused namely Diwali Choudhary @ Sheo Kumar Choudhary, Manoj Choudhary and Laxmania Devi

were framed under Section 302/34 of the Indian Penal Code for causing death of Jhaksu Oraon and Umesh Chandra Oraon. Further Charge under

Sections 109 and 302 of the Indian Penal Code and Section 27 of the Arms Act were also framed upon Diwali Choudhary @ Sheo Kumar Choudhary

and Manoj Choudhary.

The prosecution in order to prove the case, have examined ten witnesses, whereas defence have also examined two witnesses from his side.

P.W.1- Fulsariya stated that the occurrence relates to nine years ago and it was evening. She was in her residence. After hearing the quarrel, she

came out from the house and saw that the quarrel is going on between Raju, Diwali and his mother with Umesh. She also saw that Raju fired upon

Umesh which hit his father Jhaksu. Jhaksu died on the spot and injured Umesh was taken to hospital where he also died. Accused persons Raju,

Diwali, Manoj and Laxmania managed to flee away. This witness claimed to identify accused persons if they are produced before him. During cross-

examination, she stated that Jhaksu and Umesh were co-villagers and she was not related to them. She also stated that she is not aware for what

reason the quarrel was being caused but she saw that both fell down after the firing. Then she returned to her house. She denied the suggestion that

she is deposing false.

P.W.2 Arjun Rikhiyasan is also a co-villager who stated that that while returning to his home after visiting Mela saw that Raju Choudhary was

making hulla near his shop. He was using filthy language upon Umesh. Meanwhile, elder brother Diwali and Manoj and mother Laxmania also came

there. Raju Choudhary took out pistol and fired. Jhaksu (father of Umesh) came running in between them which hit him as a result of which Jhaksu

died. Umesh was taken to hospital where he also died. He further stated that villagers caught Raju Choudhary and after assault they handed over to

the police. Raju and Diwali were residing on the land of Umesh and they were not in a mood to vacate those land for which quarrel had occurred. He

claimed to recognize all accused persons after seeing them. During cross-examination, he stated that the firing was done in his presence which was

fired from the side of the shop situated on eastern side of the road. Raju was sitting at a distance of ten steps. Police has recorded his statement. He

had also assisted Umesh in taking to hospital where Umesh had stated before the police that Raju has fired upon him. This witness replied during

cross examination that he had also caught Raju. The reason of dispute between them relates to the house of informant to which Raju and Diwali were

occupying. He denied the suggestion that he is deposing false and he has not seen the occurrence.

P.W.3 Kaushalya Devi was tendered by the prosecution.

P.W.4 Fagu Lal deposed that he was going to visit Mela while he was crossing Gumti (shop) then he saw that Umesh Chandra was asking Diwali

Choudhary to vacate his house upon which Diwali Choudhary was abusing Umesh Chandra and refused to vacate the house. On the order of Diwali

Choudhary, Raju Choudhary, fired upon Umesh. Umesh fell down after getting injuries. Father of Umesh came to save him then Diwali Choudhary

also fired upon Jhaksu (father of Umesh). Jhaksu died on the spot. Thereafter, Raju Choudhary was caught by the villagers and he was handed over

to the police. Umesh was taken to the hospital where he gave his statement in the Sadar Hospital before his death. He recognized accused persons.

During cross-examination, he admitted that he is relative of Umesh and Jhaksu. He was not aware since when Diwali Choudhary was residing in the

house of Umesh. He had seen the occurrence while he was going to visit Mela and reached near the Gumti (shop). He also accompanied Umesh

while he was taken to hospital. Umesh has given his statement to the B.D.O./Daroga Ji in his presence in which he had stated that Raju Choudhary

had fired upon him and Jhaksu. He denied the suggestion that he is deposing false.

P.W.5 Bato Devi is also co-villager. She stated that Raju Choudhary had fired upon Umesh and his father Jhaksu, then Jhaksu fell down at that

place whereas Umesh became injured and was taken to the hospital. Umesh had given statement before his death. She claimed to have recognised

accused persons. During cross-examination, she stated that she had seen the firing from .303. Umesh and Jhaksu are not of her caste. Her house is

situated at a distance of ten steps from the house of Jhaksu. She came out from the house after hearing the noise and had seen firing and had also

seen Jhaksu fallen on the ground. Thereafter, she also saw that the villagers caught Raju and he was handed over to the police. She denied the

suggestion that she is deposing false.

P.W.6 Siyaram Oraon is brother of informant Umesh Chandra Oraon and son of deceased Jhaksu Oraon. He also deposed in the similar manner.

He came out from the house after hearing the noise of quarrel and saw that Diwali Choudhary is quarrelling with the brother of Umesh Chandra

Oraon for the reason of vacation of land and building which was given to Diwali Choudhary. Diwali Choudhary went inside the house and thereafter

accused Manoj Choudhary, Raju Choudhary came along with Diwali Choudhary. Raju Choudhary fired from the pistol which hit Umesh Chandra

Oraon. Umesh fell down. On being injured, his father Jhaksu came to his rescue then Diwali Choudhary fired upon Jhaksu as a result of which he died

on the spot. Umesh Oraon was taken to the hospital where he gave his statement. After giving his statement he also died. Villagers had caught Raju

Choudhary. He claimed to recognize accused persons. During cross-examination, he replied that first bullet hit on Umesh Chandra Oraon which was

fired by Raju. After few minutes, Diwali fired upon father of Umesh causing his death. He also stated that his brother has given statement in the

hospital in his presence. He denied the suggestion that he is falsely implicating accused persons in this case.

P.W.7 Sita Ram Dhangar is co-villager and neighbor who narrated in the similar manner about the quarrel between Umesh Chandra Oraon and

accused persons relating to the house which Umesh was asking to vacate and thereafter Raju Choudhary fired upon Umesh Chandra Oraon. He fell

down after receiving bullet injury. Diwali Choudhary fired upon Jhaksu who died on the spot. Villagers had caught Raju Choudhary. Umesh was taken

to the hospital in the injured condition where he gave his statement to the police before him upon which Umesh has put his thumb impression.

Thereafter, he died. He recognized mother of Raju present in the court and claimed to recognize other accused persons. During cross- examination,

he stated that his house is adjacent to the western side near the place of occurrence. He saw the occurrence from the door of his house. He also

stated that he had also gone to the hospital with Umesh where he had given statement. He also stated that the dispute was going on for the last 4/5

days for vacation of house.

P.W.8 Dr. Ajit Niranjan in whose presence post-mortem examination on the body of Umesh Chandra Oraon was conducted by Dr. Mahesh

Prasad following injuries were found:-

(i) One lacerated wound ½â€​ x ½â€​ with tattoo mark found over the middle part of left side of chest with inverted margin (wound of entry).

(ii) Lacerated wound 1 ½†x 1†found over back from the left side of the chest with everted margin (wound of exit). On dissection of the wound

there was fracture of 6th and 7th ribs of left side of chest. Eleura and middle part of left lung found raptured and left ventricles were also found

raptured. Thoracic cavity was found full of blood.

Injury was caused by fire arm. Cause of death due to shock and hemorrhage of lung and chest. Time elapsed between death between twelve to

twenty four hours. On the same day at 9.30 a.m. post-mortem examination on the dead body of Jhaksu Oraon alias Mandal son of late Teku Mandal

aged about 65 years was conducted and following ante-mortem injuries were found:-

Lacerated wound 2 ½†x 1†on the body middle sternum with clean cut mark. On the dissection of the wound sternum was found fractured. On

further dissection pericardium and the heart was found raptured. Thoracic cavity was found full of blood. Injury was caught by sharp cut weapon.

Cause of death due to shock and hemorrhage on account of above injuries. Time elapsed since death within twenty four hours.

P.W.- 9 Birendra Mandal son of deceased Jhaksu Oraon and also brother of deceased Umesh Chandra Oraon stated that he was studying in his

house and came out after hearing abusive language being used. He saw that Diwali Choudhary was quarrelling with his brother Umesh Chandra

Oraon as he was not in a mood to vacate the house and the land. Thereafter, Diwali Choudhary again came with Raju Choudhary and Manoj

Choudhary and his mother Laxmania devi. Diwali Choudhary fired upon Umesh which hit at the chest then his father father Jhaksu tried to save him

then Diwali Choudhry also fired on him. Diwali Choudhary managed to escape but Raju Choudhary was caught by the villagers. Umesh was taken to

the hospital in injured condition although his father Jhaksu died on the same place. Umesh also died during treatment. He recognized Laxmania present

in court and claimed to recognize other accused persons. During cross-examination, he stated that at the relevant time he was studying in Class IX but

had seen the occurrence. His statement was not recorded by the police. He further stated that statement of Umesh was recorded by Magistrate R.K.

Singh. Now R.K. Singh is also dead. He denied the suggestion about the false implication of accused persons in the case.

P.W.- 10 Gogia Masomat wife of deceased Jhaksu stated that she heard the quarrel between her son Umesh and Diwali Choudhary when she

came outside the house and saw that Diwali was using abusive language upon Umesh. After some time, Diwali came with Raju. On the order of

Diwali, Raju fired upon Umesh, He fell down. Her husband came running to save but firing was made from the pistol. He fell down and died. Umesh

was taken to hospital. The reason of dispute was relating to vacation of land and building. During cross-examination, she stated that police has

recorded her statement. She also stated that Umesh had given statement before the Magistrate and thereafter he died. She further stated that the

same Magistrate is also now dead.

The statement of accused under Section 313 of the Code of Criminal Procedure was recorded in which they denied the evidence against him and

claimed themselves to be innocent.

The defence has also examined two witnesses on their behalf.

D.W.1 Pradeep Kumar Kundu, Junior Engineer (Works), Eastern Railway, Sahibganj deposed after getting summon from the court that on

22.04.1994 he was posted at Barharwa. Manoj Choudhary was his sub-ordinate Khalasi. He proved that daily staff registration register as Ext.- A, to

show that accused Manoj was on duty on 20.04.1994 from 6.00 p.m. till next morning of 6.00 a.m. During cross-examination, he stated that under his

instruction works distribution were being done. The attendance of Manoj that he was on duty could be known from it but the attendance sheet has

been sent to Divisional Office.

D.W.2 Basuki Nath Gupta is Khalasi who also deposed after getting summon that he was present on 20.04.1994 from 6.00 a.m. till 6.00 p.m.

Manoj Choudhary was also working in his department and were making attendance on the same register. Thereafter, duties were used to be allotted.

During cross-examination, he stated that he could not say that on 20.04.1994 how many staffs were on duty and how many Khalasies have worked in

his department. He further stated that nobody had signed in his presence on the attendance sheet as he was on duty at Barharwa platform.

Learned counsel for the appellant submitted that the court below after trying three accused persons namely Diwali Choudhary, Manoj Choudhary

and Laxmania Devi held guilty only Diwali Choudhary under Section 302/34 and Section 109/302 of the Indian Penal Code. The court below has

acquitted all accused persons including Diwali Choudhary under Section 27 of the Arms Act. The court below acquitted accused Manoj Choudhary

and Laxmania Devi under Section 302/34 of the Indian Penal Code also. Learned counsel for the appellant further submitted that the court below has

not taken into consideration of material contradictions occurring in the evidences of the prosecution witnesses. The investigating officer of this case

has not been examined which caused prejudice to the appellant. The independent witnesses have not supported the case of the prosecution. The

manner of occurrence could not be proved by the prosecution. Learned counsel for the appellant submitted that P.W.1 Fulsariya and P.W.2 Arjun

Rikhiyasan stated that Raju Choudhary had fired upon Umesh Chandra Oraon therefore, conviction of Diwali Choudhary under Section 302/34of the

Indian Penal Code is not fully proved as P.W.8 Dr. Ajit Niranjan did not find any fire arm injury upon Jhaksu Oraon. P.W.9 Birendra Mandal son of

deceased and brother of Umesh Chandra has categorically stated that his statement was not recorded by the police under Section 161 of the Code of

Criminal Procedure therefore, the appellant is entitled to at least benefit of doubt.

Learned A.P.P. appearing on behalf of the State submitted that there is consistency in the evidence of eye witness being P.W.1- Fulsariya P.W.2-

Arjun Rikhiyasan, P.W.4- Fagu Lal, P.W.5- Bato Devi, P.W.6-Siyaram Oraon and P.W.7- Sita Ram Dhangar and P.W.10- Gogia Masomat. All have

stated that the quarrel was going on between the convict and informant and thereafter on the order of convict, Diwali Choudhary another absconded

accused Raju Choudhary fired upon Umesh, informant of this case. When the father of Umesh- Jhaksu tried to save Umesh then he also got injuries

and died on the spot.

Having heard learned counsel for the parties and on scrutiny of the evidences adduced on behalf of prosecution as well as on behalf of defence, it

would appear that the prosecution witnesses are mostly eye witnesses, have proved the prosecution case regarding quarrel between convict and

informant and during that moment the firing was made causing injury to informant who died in the hospital during treatment. Before that statement of

informant was recorded and were proved by the prosecution witnesses supported with medical evidence. Although the Investigating Officer has not

been examined by the prosecution but that has not resulted in any ambiguity in the case as the prosecution had consistency in bringing on record the

manner of occurrence relating to the double murder that led to the conclusion pointing the guilt towards the convict only. Since Manoj Choudhary was

not convicted so the evidences adduced on behalf of defence being D.W.1 Pradeep Kumar Kundu and D.W.2 Basuki Nath Gupta was not taken into

account for the appellant.

In the present case the eye witnesses have fully corroborated the occurrence and the manner of assault, therefore, non-examination of

Investigating Officer did not corrode credibility of prosecution version. This proposition was held by the Hon’ble Supreme Court in case of Bihari

Rai Versus State of Bihar (Now Jharkhand) reported in (2008) 15 SCC 778. The same view was also reflected in case of Birendra Rai & Others

Versus State of Bihar reported in (2005) 9 SCC 719 wherein it has been held that non-examination of Investigating Officer has caused no prejudice to

the defence if the evidence of the eye witnesses were found truthful. We are of the considered view that in the instant case the eye witnesses have

narrated and proved the prosecution version, therefore, non-examination of the Investigating Officer have not caused any prejudice to the appellant.

In case of Ashok Debbarama @ Achak Debbarama Versus State of Tripura reported in (2014) 4 S.C.R.-287 where it has been held:

“The mere fact that the appellant was not named in the statement made before the police under Section 161 Cr.P.C. and, due to this omission, the

evidence of P.W.10 and P.W.13 tendered in the court is unreliable, cannot be sustained. Statements made to the police during investigation were not

substantive piece of evidence and the statements recorded under Section 161 Cr.P.C. can be used only for the purpose of contradiction and not for

corroboration. In our view, if the evidence tendered by the witness in the witness box is creditworthy and reliable, that evidence cannot be rejected

merely because a particular statement made by the witness before the court does not find a place in the statement recorded under Section 161

Cr.P.C.

……………….. Therefore, the mere fact that they had not named the accused persons in Section 161 statement, at that time, that would not be a

reason for discarding the oral evidence if their evidence is found to be reliable and creditworthy.â€​

The oral evidence of the eye witnesses are reliable and found creditworthy therefore, the prosecution has able to bring on record the consistency in

the evidence of prosecution witnesses.

In the above circumstances, the prosecution has able to prove its case beyond all reasonable doubt and the court below has rightly convicted the

appellant for the offence under Section 302/34 of the Indian Penal Code as well as under Section 109/302 of the Indian Penal Code which requires no

interference. The appellant is already in custody undergoing the sentence.

In the result, this appeal is dismissed. The Judgment of conviction and Order of sentence dated 18.03.2005, passed by the Sessions Judge,

Sahibganj, in Sessions Trial No. 126 of 1995 are hereby, confirmed.

Let the Lower Court Record be returned forthwith to the court concerned.

H.C. Mishra, J:-

I have gone through the judgment delivered by my esteemed Brother Sri B.B. Mangalmurti, J. While agreeing with the conclusions and findings

arrived at by His Lordship, I wish to add that though there may be some contradictions in the evidences of the eye witnesses as regards the assault

made by the present accused and though the evidence of P.W.8 (Dr.) Ajit Niranjan show that on one of the deceased Jhaksu Oraon, the injuries were

found to be caused by sharp cutting weapon, which does not support the evidence on record that this deceased was also assaulted by firearm, but the

fact remains that the prosecution has been able to prove the fact beyond all reasonable doubts that the quarrel was initiated by this accused Diwali

Choudhary as he refused to vacate the house of the deceased. It was this accused, who called the other co-accused persons, including the absconding

accused, from his house, and on the orders given by this appellant, the informant and his father were assaulted and both of them died due to injuries

sustained in the occurrence. As such, in spite of the minor discrepancies in the evidences of the eye witnesses, the prosecution has been able to prove

the active participation of the appellant Diwali Choudhary in the occurrence, beyond all reasonable doubts, with the intention to cause the death, which

ultimately resulted in double murder, in a bid to usurp the property of both the deceased.

 I am of the considered view that on the basis of evidence on record, the prosecution has been able to prove the charges against the appellant to

have committed the murder of both the deceased in furtherance of the common intention, which was shared by the appellant Diwali Choudhary as

well, and he had also abetted the commission of the crime. I respectfully agree with the Judgment delivered by brother Sri B.B. Mangalmurti, J.