Saberdhan Hansda @ Sawardhan Hansda vs State of Jharkhand

This appeal has been preferred against the judgment of conviction dated 18.06.2009 and the order of sentence dated 22.06.2009 passed by Sri Raghubar Dayal, learned Additional Sessions Judge, F.T.CIII, Jamshedpur in Sessions Trial No. 16 of 2007 whereby, all the appellants have been held guilty for the offence under Sections 323/34 and 302/34 IPC and the appellants, namely, Viren Hansda @ Viren Majhi and Sowardhan Hansda have been further held guilty for the offence under Section 27(1) of the Arms Act. Accordingly, all the appellants have been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 11,000/each, in default of payment, R.I for six months each for the offence under Sections 302/34 IPC and further R.I for six months each for the offence under Sections 323/34 IPC and further sentenced to undergo R.I for three years and to pay fine of Rs. 5000/each, in default of payment of fine, R.I for six months each to the appellants, namely, Sowardhan Hansda and Viren Majhi @ Viren Hansda for the offence under Section 27(1) of the Arms Act. All the sentences were ordered to run concurrently.

The case of the prosecution, in brief, is that on 05.04.2006 at about 6.30 P.M the informant Sufal Mahato and his nephew Ramlal Mahato started journey for their village Chunidih from Badam Hat after purchasing vegetables and when they reached at about 7.00 P.M at bridge over Badam Nala situated in between village Chunidih and Badam, they saw that a cycle was lying by the side of the road. Ramlal Mahato asked to whom this cycle belongs. In the meantime, by the side of the road 7/8 persons came and started assaulting the informant and his nephew. The informant had identified the assailants as the appellants. In course of assaulting, the informant and Ramlal Mahato fell down and started catching lathi. At that time Biren Majhi and Sowardhan Hansda took out pistol and both of them opened single fire on the person of Ramlal Mahato, who fell down in pool of blood. After hearing the sound of firing, the passerby and other villagers reached there and thereafter the informant with the help of Kisan Lal Mahato, Satrughan Lal Mahato and others took the injured Ramlal Mahato to Primary Health Centre, Patamda where the Doctor declared him dead. The informant disclosed the reason behind the alleged occurrence that two years ago, a rape case was lodged by Koka Majhi against the appellant Biren Hansda and the deceased Ramlal Mahto was the witness in that case. Biren Hansda and other co-accused persons were putting pressure on Ramlal Mahato not to depose in that case.

On the basis of the fardbeyan of the informant, Patamda P.S. Case No. 24/2006 was registered under Sections 302/323/34 IPC and Section 27 of the Arms Act against the accused persons. After completion of investigation, charge sheet was submitted under Sections 302/323/34 IPC and Section 27 of the Arms Act against the appellants. Cognizance of the offence was taken and the case was committed to the Court of Sessions. The appellants were also examined under Section 313 Cr.P.C to which they pleaded not guilty and claimed to be tried.

In order to prove the charge against the appellants, the prosecution has examined altogether 10 witnesses. PW.1 Baidnath Tuddu is a hearsay witness, PW.2 Swadhin Mahato is a hearsay witness, PW.3 Gowardhan Mahato is a hearsay witness, PW.4 Bahadur Mahato is a hearsay witness, PW.5 Kisan Lal Mahato is a hearsay witness, PW.6 Satrughan Mahato is a hearsay witness, PW.7 Dr. A. Ekka had examined the informant and found injuries on his person, PW.8 Sufal Mahato is the informant and he had also sustained injuries, PW.9 Dr. Niranjan Minz had conducted post mortem examination on the dead body of the deceased Ramlal Mahato and PW.10 Aadikant Mahato, S.I is the I.O of the case. The defence in support of its case has examined two witnesses. DW.1 is Tantoo Majhi and DW.2 is Bheem Mandal So far as the exhibits are concerned, Ext.1 is the signature of Kishal Lal Mahato and Shatrughan Mahato on fardbeyan. Ext.2 is the signature of Shatrughan Mahato on carbon copy of inquest report. Ext.3 is the injury report. Ext.4 is the post mortem report. Ext.1/1 is the signature of informant on fardbeyan. Ext.2/1 is the signature of informant on carbon copy of inquest report. Ext.5 is the fardbeyan of the informant, Ext.6 is the formal F.I.R, Ext.7 is the carbon copy of inquest report. Ext.8 is the carbon copy of injury report.

Learned counsel for the appellants referred to the evidence of PW.1, who in his examination-in-chief has stated that Parvati Tuddu is his sister. She had filed a case against Biren Hansda for molestation with her. He has further stated that for filing the said case, Ramlal Mahato had accompanied him with Padamlochan to Police Station and Ramlal Mahato was one of the witnesses in the said case.

In his cross-examination, he has stated that he heard about the murder of Ramlal Mahato by Sufal Mahato.

PW.8 (informant) in his evidence has stated that the reason behind the alleged occurrence is that prior to two years, a rape case was lodged by Koka Majhi against Biren Hansda and Ramlal Mahato was the witness in that case and Ramlal Mahato was examined in that case and Ramlal Mahato used to escort the witnesses on the date fixed by the Court. He proved his signature on the fardbeyan, which is marked as Ext.1/1. He proved his signature on the carbon copy of the inquest report, which is marked as Ext.2/1. Although he was cross-examined as he is an injured witness, but the defence could not shake his evidence and he has supported the case of the prosecution.

In paragraph 20 of his cross-examination, he has admitted that in Gram Pradhan election Ramlal Mahato was supporting the Congess Party. He was a member of Jharkhand Party and there were some disputes.

PW.1 is a hearsay witness and he has admitted the fact that he has three sisters, namely, Parvati Tuddu, Saraswati Tudu, and Rajani Tuddu. Parvati Tudu is his youngest sister who had earlier lodged a rape case against Biren Hansda in which Ramlal Mahato was a witness.

He has admitted in his cross-examination that he had not seen the occurrence.

PW.2 is also a hearsay witness and in his evidence he has stated that in the election of Gram Pradhan, Ramlal Mahato had supported him and proposed his name and shown majority. There was also a candidate of the accused persons in the said election and there were some disputes between the parties.

PW.3 is also a hearsay witness. He has stated in his examination-in-chief that on hearing about the murder of Ramlal Mahato, he went to the place of occurrence and noticed that Ramlal Mahato was in pool of blood having sustained fire arm injuries and Sufal Mahato was also injured.

In his cross-examination, he has stated that Ramlal Mahato was the Block President of Congress and social worker.

PW.4 is the father of Ramlal Mahato and he is a hearsay witness. He learnt about the occurrence from PW.8.

PW.5 is also a hearsay witness. He has stated that on 05.04.2006, on hearing the sound of firing, he went to the place of occurrence and noticed the dead body of Ramlal Mahato in pool of blood and Suphal Mahato in injured condition. He has further stated that Ramlal Mahato was a social worker. He learnt about the occurrence from Sufal Mahato.

In his cross-examination, he has stated that his house is situated at a distance of 01 K.M from the place of occurrence. He had heard the sound of firing from the distance of 01 K.M.

PW.6 is also a hearsay witness. He has stated in his examination-in-chief that when he had gone to attend the call of nature, on hearing the sound of firing, he went to the place of occurrence. He also stated that Koka Majhi had lodged a rape case against Biren Hansda in which Ramlal Mahato was a witness. He has also stated that he had put his signature on the fardbeyan (Ext.1) and also on the inquest report (Ext.2).

In his cross-examination, he has stated that the place of occurrence is situated at the distance of 01 K.M from his house.

PW.7 Dr. A. Ekka had examined Sufal Mahato on 05.04.2006 at about 10.25 P.M and found the following injuries on his person:

(i) Lacerated wound 1�" x �" in the right side of the forehead.

(ii) Lacerated wound 2"x �" in the posterior part of the left parietal region of the head.

He has opined that the above injuries were caused by hard and blunt substance. He has proved the injury report (Ext.3).

In his cross-examination, he has stated that the injured was brought before him at about 10.25 P.M.

PW.9 Dr. Niranjan Minj had conducted postmortem examination on the dead body of the deceased Ramlal Mahato on 06.04.2006 and found the following injuries:

Lacerated wounds

(i) 4 c.m x 3 c.m x bone deep on right occipital region

(ii) 6 c.m x 3 c.m x scalp deep left parietal region

(iii) 9 c.m x 4c.m x scalp deep on right fronto parietal scalp

Abrasions

(i) 5 c.m x 1 c.m on right knee front

(ii) 3 c.m x 2 c.m on left leg front

He has opined that all the injuries were antemortem caused by hard and blunt substance. He prepared the postmortem report in his pen and signature, which is marked as Ext.4.

In his cross-examination, he has stated that the shots were fired from a distance of 3 yard and lacerated wounds are not possible by fall on hard and blunt surface or substance, but abrasions are possible by fall. He has stated that he is not ballistic expert.

PW.10 Aadikant Mahato, S.I is the I.O of the case. He in his examination-in-chief has stated that on 05.04.2006 he was posted as Officer-in-charge, P.S. Patamda. He received telephonic information that a person was shot dead by opening fire in between village Badam and Chunidh. He went to the place of occurrence and recorded the statement of PW.8, which is marked as Ext.5 and also noticed injuries on his person. On the basis of the fardbeyan of PW.8, he prepared the formal FIR, which is marked as Ext.6. He prepared the inquest report of the dead body of the deceased, which is marked as Ext.7. He sent the dead body for postmortem. He inspected the place of occurrence. In paragraph 7 of his examination-in-chief he has described the place of occurrence which is situated in between village Badam and Chunidih on the main road. He also recovered a pair of slipper and an empty firearm cartridge from the place of occurrence. He has stated that he seized empty cartridge and slipper, but he did not seize bloodstained soil from the place of occurrence. After completion of investigation, he submitted the final form.

In paragraph 12 of his cross-examination, he has stated that the day of occurrence was the day of Hat. He has stated that he had not sent the recovered cartridge to Forensic Science Laboratory.

DW.1 & DW.2 have stated in their evidence that on the date of occurrence, the appellant Sowardhan Hansda was with them.

Learned counsel for the appellants submitted that save and except the evidence of PW.8, who is the eyewitness of the occurrence, other witnesses are hearsay witness. Even if the evidence of PW.8 is taken in totality, it does not prove the complicity of the appellants Moti Lal Hembrom and Chhotu Lal Sahish in commission of the alleged offence. Thus, the prospection has failed to prove its case under Section 302 IPC. It has been further submitted that due to party politics and old enmity between the parties, false implication of the appellants cannot be ruled out.

Learned A.P.P on the basis of the evidence of the prosecution witnesses, as discussed herein above, submitted that in view of the evidence of PW.8 read with the evidence of PW.9 and PW.10, the prosecution has been able to prove its case beyond reasonable doubt against the appellants. There is no illegality and infirmity in the impugned judgment of conviction and order of sentence of learned Court below and this appeal is liable to be dismissed.

After analysing the entire prosecution case in its true perspective, we are of the considered view that the prosecution has not been able to prove the complicity of appellants namely, Motilal Hembram and Chhutu Lal Sahish @ Chhatulal Sahish in the commission of the offence along with their other two co-accused namely, Saberdhan Hansda @ Sowardhan Hansda and Biren Hansda @ Viren Majhi @ Viren Hansda who were armed with fire arms and allegedly released shots, which hit the deceased and proved fatal.

Viewed thus, the conviction of appellants namely, Motilal Hembram and Chhutu Lal Sahish @ Chhatulal Sahish deserves to be disturbed for the charge under Sections 302/34 IPC and Section 27 of the Arms Act and that of appellants namely, Saberdhan Hansda @ Sowardhan Hansda and Biren Hansda @ Viren Majhi @ Viren Hansda affirmed for the said charges. Ordered accordingly.

Appellants, Motilal Hembram and Chhutu Lal Sahish @ Chhatulal Sahish are said to be on bail during the pendency of this appeal as their substantive sentence was suspended by the Court, they are discharged from their bail bonds. However, appellants Saberdhan Hansda @ Sowardhan Hansda and Biren Hansda @ Viren Majhi @ Viren Hansda, who are stated to be in custody for the last more than 10 years shall serve remainder of their substantive sentence.

The net result is that the instant appeal stands allowed partly in the aforesaid terms.

Registry is directed to intimate the jail authority concerned of the outcome of the instant appeal forthwith. The trial court shall also be informed, accordingly.