Lalita Minz & Ors. vs The State of Jharkhand & Ors.

Per Justice Ananda Sen, Aggrieved by the judgment of conviction

dated 4th October, 2004 and order of sentence dated 5 th October, 2004

passed by learned Additional District & Sessions Judge, Fast Track Court II,

Gumla in Sessions Trial No.99 of 2004, the appellants have preferred this

appeal.

These two appellants have been convicted by the Trial Court for

committing an offence under Sections 302 / 34, 201 / 34 of the Indian Penal

Code and also under Section 452 / 34 of the Indian Penal Code. After the said

conviction, they have been sentenced to undergo rigorous imprisonment for

life for committing the offence under Sections 302 / 34 of the Indian Penal

Code, rigorous imprisonment for 7 years for offence under Sections 201 / 34

of the Indian Penal Code and rigorous imprisonment for 5 years for offence

under Sections 452 / 34 of the Indian Penal Code.

The prosecution case arises out of the fardbeyan of Smt. Rami Orain

(P.W.2), who happens to be the wife of the deceased. In her fardbeyan,

which was recorded on 14.12.2003 at 13.00 hrs., she states that on

13.12.2003 at about 07.00 p.m., she was cooking food in her house. Her

husband Bargi Oraon (deceased) was with his minor grandson Kartik Oraon

(P.W.1) in their house. The main door of the house was closed. Some

person, from outside, knocked the door and told them to open the same.

They inquired whether Bandhana was present there in the house or not. To

the querry, the informant replied that Bandhana is not in the house, rather,

has gone to the brick-kiln. On hearing this, the persons vigorously started

knocking the door and they used an axe to break the door open. After

breaking the door, two miscreants entered the house, who were identified by

the informant as these appellants. These appellants asked the husband of

the informant as to why Bandhana (son of the informant) is not paying their

money. Further they demanded money immediately. The husband of the

informant requested them to wait for Bandhana and showed his ignorance

about any monetary transaction between them. Thereafter, these two

appellants started assaulting the husband of the informant by fists and slaps

and dragged him out of the house. The informant and her grandson tried to

forbid them, but, in vain. The accused gave an axe blow on the left elbow of

the informant. Appellant Blichdan Kujur tried to give an axe blow on the neck

of the informant, but, she could save herself. Both these accused dragged

the husband of the informant out of their house and assaulted him on his leg,

face and neck by axe. The husband of the informant died instantly.

Thereafter the accused persons, by putting straw on the dead body of the

husband of the informant, burnt the body. The informant screamed for help,

upon which some persons came out of their house and saw the occurrence.

The reason of the assault, as stated by the informant, is that the son of the

informant and these two appellants used to supply labourers in the brick-kiln

of Tripura and Assam and some differences occurred because of some

monetary transactions.

On the basis of the aforesaid fardbeyan, Ghaghara Police Station

Case No.76 of 2003 was registered on 14.12.2003 for offences under

Sections 452, 302, 201, 427, 324, 307 / 34 of the Indian Penal Code. After

investigation, the police submitted chargesheet. The learned Chief Judicial

Magistrate took cognizance of offence and thereafter committed the case to

the Court of Session, as the offences are exclusively triable by the Court of

Session. Charges were framed against the appellants on 03.06.2004 for

offences under Sections 302 / 34, 201 / 34, 307 / 34 and 452 / 34 of the Indian

Penal Code. The appellants pleaded not guilty to the said charges and

claimed to be tried.

To substantiate the case of the prosecution, 8 witnesses were

examined on behalf of the prosecution. P.W.1 is Kartik Oraon, the minor

grandson of the deceased. P.W.2 is Smt. Rami Orain, who is the informant.

These two witnesses are eye witnesses of the said occurrence. P.W.3 is

Charan Gope. P.W.4 is Lohra Gope and P.W.6 is Burhna Oraon, who are all

villagers. P.W.5 is Dr. R.S. Gupta, who conducted postmortem of the

deceased. P.W.7 is Rukhsar Ahmad, a Sub Inspector of Police, who

recorded the fardbeyan and prepared the seizure list. P.W.8 Ramji Prasad is

the investigating officer.

Over and above the said oral evidence, the post mortem report of the

deceased was exhibited as Exhibit 1, the fardbeyan was marked as Exhibit

2, Exhibit 3 is the formal first information report, Exhibit 4 is the seizure list of

2 blood stained axe and Exhibit 5 is the inquest report of the deceased and

Exhibit 6 is the seizure list of blood stained earth and Exhibits 7 and 8 are

confessional statements of accused Joljas Kujur and Blichdan Kujur

respectively.

The Court below, after analysing the evidence of the witnesses and

after hearing the arguments advanced by the counsel for the accused and

the public prosecutor, has convicted the appellants for offences under

Sections 302 / 34, 201 / 34 of the Indian Penal Code and also under Section

452 / 34 of the Indian Penal Code and passed the judgment of conviction and

order of sentence as mentioned above.

Challenging the said judgment and findings of the Court below, the

counsel for the appellants submits that the Trial Court could not have relied

upon P.W.1, who, admittedly, is a child witness. He submits that whether the

said witness was competent enough to testify, has not been examined

properly by the Court. He submits that only two questions were put to him to

judge his aptitude, competence and his understanding. He submits that, in

fact, the said witness lacks proper understanding so, his evidence should

have been scrapped by the Trial Court. He further argues that if the

testimony of P.W.1 is discarded, the only witness, who remains is P.W.2, the

informant. He submits that from the evidence, it is quite clear that this

witness is not the eye witness and in fact, she was not present at the place

of occurrence. To buttress his arguments, he submits that as per the

fardbeyan, this informant was also injured, but, there is no injury report on

record, which suggests that this witness did not speak truth about the

alleged assault on her. He submits that this fact substantiates that this

witness was not even present at the place of occurrence. He submits that

P.W.1 and P.W.2 are highly interested witnesses and thus are unreliable. It is

further argued that admittedly, there was dispute between these appellants

and son of the informant, thus, there are high probability that these

appellants have been falsely implicated in this case. He submits that the

occurrence, as alleged, had taken place in midst of the village, but,

surprisingly, there is not a single villager (independent witness), who came

forward to support the prosecution case, which casts a shadow of doubt on

the entire prosecution story including involvement of these appellants. He

lastly submits that the weapon of offence has not been produced in the

Court, which is fatal for the prosecution. On this background, he prays for

acquittal of the appellants.

Learned A.P.P., supporting the impugned judgment of conviction and

order of sentence, submits that both P.W.1 and P.W.2, though related to the

deceased, are absolutely trustworthy and there is no material to disbelieve

them. He submits that these two eye witnesses have specifically stated

about the occurrence, the manner of assault, the weapon used by the

accused-appellants and the same have been corroborated by the medical

evidence. He submits that there is nothing in their evidence to disbelieve

them. He submits that the only conclusion after going through the evidence,

which can be reached, is the guilt of these two appellants for which they

have been rightly convicted and appropriately sentenced.

We have heard learned counsel for the appellants and the learned

A.P.P. for the State and have gone through the records of the case.

As mentioned earlier, we find that there are 8 prosecution witnesses in

this case. P.W.1 is the child witness. This witness was properly examined by

the Trial Court and the Trial Court was satisfied that he understands the

questions and is able to answer properly. After recording such satisfaction,

the Court proceeded to record his evidence. He stated that the occurrence

took place in the evening when he was present in the house along with his

grandfather and grandmother. The grandmother was cooking food and was

boiling paddy when these appellants broke open the door, entered into the

house and assaulted his grandmother. He stated that both of them were

carrying axe. He went on to narrate that these appellants dragged his

grandfather out of the house and killed him with axe blow near a "Kadam

tree". He further stated that after killing him, they burnt his grandfather. He

identified the appellants in Court. The defence could not elicit any

contradictions from him.

P.W.2 is the informant and the wife of the deceased. She stated that

on the date of occurrence, she was present in the house and was boiling

paddy. Her husband was present along with her grandson (P.W.1). She

deposed that Blichdan and Joljas knocked the door and when they did not

open the same, they broke the door open by using axe. They assaulted her

by means of axe on her hand and thereafter they both took her husband

dragging him near the "Kadam tree", killed him by axe and burnt the body

with straw. She further stated that two axes were seized from the house of

Bhaula on the confession made by Joljas. She stated that she along with

wife of Bhaula, Dinu, had put their signatures on the seizure list. In her cross

examination, she stated that she had shown her injury to the police as blood

was oozing out from her injury. She stated that she had taken medicine for

her injury and tied the wound with a piece of cloth. She denied the

suggestion that murder has been committed by some unidentified persons.

P.W.3 is Charan Gope, who is a hearsay witness to the occurrence of

murder. He stated that he came to know about the murder and has seen the

dead body on the next day near the "Kadam tree". He stated that the dead

body was burnt. He stated that he had put his thumb impression on the

inquest report along with Gudana (Burhna) Oraon and they carried the dead

body to the police station. In cross examination, he stated that his house

was located half a mile from the house of the deceased. He stated that he

did not know as to who killed the deceased and how he was killed. He stated

that the village people and the informant disclosed the names of the

assailants to him.

P.W.4 is Lohra Gope, who is a hearsay witness and only stated that he

came to know the name of the murderers from the wife of the deceased.

P.W.6 is Burhna Oraon, who stated that the deceased was murdered

on Saturday night. He stated that he did not come out of the house due to

fear. On the next day morning he came out and found the deceased dead on

the road near the "Kadam tree" in a burnt state. He stated that he along with

Charan Gope had put their thumb impression on the inquest report. He

stated that he heard that these two appellants have killed and burnt the

deceased after killing.

P.W.5 is the doctor, who conducted the postmortem on the deceased

and found the following: -

I. (I) Rigour mortis was present in all four limbs. (ii) The body was necked. No clothes, skin blackish, Blebs were present and hair was singed. (iii) Post mortem burnt was present on the body. II. INJURIES (I) Fracture of right tibia and fibula. (ii) Blood clots at mouth and nose. (iii) Heart, liver, brain and lungs were conjusted. (iv) There was fracture of skull bone with blood clots in brain. III. Stomach was empty

IV. Cause of death - due to head injury V. Time elapsed since death till post mortem examination was within 48.00 hrs.

The doctor opined that post mortem burn was present on the body and

the death occurred within 48 hours. Cause of death as per the doctor is the

head injury. He further opined that it was possible that after committing

murder by means of tangi (axe), the person was set on fire. In his corss

examination, he has stated that the person died due to injury caused and not

by burn. 17. P.W.7 is Rukhsar Ahmad, who, after receiving information about the

murder at Village Kohipat Rayyadeepa, proceeded and recorded the

fardbeyan of Rami Orain (P.W.2), who is the wife of the deceased. The

fardbeyan was marked as Exhibit 2. He stated that the investigation was

handed over to Ramji Prasad and he returned to the police station where the

formal first information report was written by S.N. Pandey and was signed by

him (P.W.7). Formal first information report was marked as Exhibit 3. He

further deposed that he went to the Village again on 15.12.2003, where he

arrested Joljas Kujur, who admitted his guilt and axes used in the murder

were recovered at his instance from the house of Bhaula Oraon. Seizure list

was prepared by him in presence of two witnesses, which was marked as

Exhibit 4. No major question was put to him in cross examination.

P.W.8 is the investigating Officer, Ramji Prasad, who reached the

place of occurrence along with P.W.7, the Officer-in-charge, Rukhsar Ahmad.

He deposed that Rukhshar Ahmad recorded the fardbeyan and investigation

was handed over to him. He prepared the inquest report, which was marked

as Exhibit 5. He collected blood stained soil from the place of occurrence

and seized the same, which was marked as Exhibit 6. Thereafter he sent the

dead body to the Gumla Sadar Hospital for postmortem. He gave the

description of the first place of occurrence, i.e., the house of the deceased

along with its boundary. He also gave the description of the second place of

occurrence, i.e., the place where the deceased was murdered and his body

was burnt, along with boundaries of the place. He stated that he recorded

the statement of Charan Gope, Kartik Oraon and Lohra Oraon and Burhna

Oraon (P.W.6). He arrested Joljas Kujur and recorded his confessional

statement. He also stated that on his confession, the murder weapon was

recovered. He later on arrested Blichdan Kujur and recorded his

confessional statement. He also stated that axes with blood stains were sent

to the Forensic Science Laboratory for examination. This witness was not

cross examined as no one turned up to cross examine him. This witness has

categorically stated in paragraph 10 that since the informant also sustained

injury, he brought her to the police station and sent her for treatment.

Thus, analysing the evidence of these witnesses, we find that the two

eye witnesses, P.W.1 and P.W.2 are consistent on the facts. From their

evidence, it is clear that these two appellants assaulted the informant and

thereafter assaulting the deceased, dragged him towards the "Kadam tree"

and assaulted him with axes, which resulted in his death. After the death,

these two appellants have burnt the body of the deceased.

The assault on the person of the deceased by means of axe has been

corroborated by the medical evidence. The doctor found multiple injuries on

the person of the deceased and has opined that the injury was by axe. He

also opined that after the death of the deceased, his body was burnt. This is

also the prosecution case. There is nothing in the testimony of P.W.1 and

P.W.2 to disbelieve them. These two witnesses are natural eye witnesses,

who were present at the house at the time of occurrence. They stated that

these two appellants, are the perpetrators of the crime and there is nothing

on record to disbelieve them. The other witnesses, i.e., P.W.3, P.W.4 and

P.W.6, have also stated that the body of the deceased was found near the

Kadam tree in a burnt state, which is also the consistent case of the

prosecution. The arguments of the counsel for the appellants has got no legs

to stand because P.W.1 and P.W.2 who are the eye witnesses are consistent

in their stand, even though they are related witnesses. Just because the

witnesses are related, their testimony cannot be brushed aside; there must

be strong and cogent reason to disbelieve their testimony, which is missing

in the instant case. The child witness, P.W.1, is a competent witness and his

competence cannot be questioned. The defence also has not brought

anything to remotely suggest that the child was unable to grasp the question

and was unable to answer them properly. When the Court, before recording

the deposition of the child witness, is satisfied that the child witness

understands the question and is able to answer them properly, it was the

duty of the defence to show that the said recording of the Trial Court is not

correct and the witness is not competent. In this case, there is nothing to

suggest the same. Thus, the question of the appellants about the

competence of P.W.1 has got no legs to stand. P.W.2 is also an eye witness,

who narrated the entire occurrence, which is also corroborated by P.W.1 and

the medical evidence. She is also an injured witness. Non-production of her

injury report is not fatal to the prosecution in this case as the Investigating

Officer has admitted that this witness was injured and she was taken by the

investigating officer to the police station and thereafter she was sent to the

medical centre for treatment. It is pertinent to mention here that the

investigating officer was not cross examined in this case. The blood stained

earth, the axes were also seized by the investigating officer, which is

corroborated from the evidence of P.W.2. The villagers, on the next day, saw

the dead body near the Kadam tree. The P.W.1 and P.W.2 narrated the same

version that the deceased was murdered near the Kadam tree by these

appellants. Further P.W.6 has stated that out of fear he did not come out

after hearing screams on the fateful night. This is a sufficient cause for his

absence at the place of occurrence. Thus, from the evidence adduced on

behalf of the prosecution, the involvement of these two appellants is firmly

established in the occurrence of committing murder of the deceased and

thereafter setting his body on fire. The prosecution has been able to prove

the guilt of these appellants beyond all reasonable doubt. Thus, the Trial

Court was justified in convicting the appellants for offences under Sections

302 / 34, 201 / 34 of the Indian Penal Code and also under Section 452 / 34 of

the Indian Penal Code and sentence them to undergo rigorous imprisonment

for life for committing the offence under Sections 302 / 34 of the Indian Penal

Code, rigorous imprisonment for 7 years for offence under Sections 201 / 34

of the Indian Penal Code and rigorous imprisonment for 5 years for offences

under Sections 452 / 34 of the Indian Penal Code. Both the appellants are

already in custody, serving out the sentence.

Thus, we find no merit in this appeal. This appeal is, accordingly,

dismissed. Let the Lower Court Records along with a copy of this judgment

be transmitted to the Court below.