Sitaram Tudu vs State of Jharkhand

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

The appellant is aggrieved by the impugned Judgment of conviction dated 24.03.2008 and Order of sentence dated 27.03.2008, passed by the

learned Additional Sessions Judge (FTC-II), Seraikella-Kharsawan, in Sessions Trial No. 128 of 2005, whereby, the sole appellant has been found

guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been

sentenced to undergo R.I. for life with a fine of Rs.1,000/- for the said offence. Â

The prosecution case was instituted on the basis of the fardbeyan of the informant Nikani Hansda, the wife of the deceased Bikram Hansda,

recorded on 18.05.2005 at her house situated in the village Barabinda, Tola Nutandih, P.S. Chandil, District Seraikella Kharsawan, wherein, she has

stated that on the previous night all the family members took their meal and they went to sleep about 10:00 P.M. The informant was sleeping with her

husband Bikram Hansda on a cot in the aangan of the house. At about 02:00 A.M. she heard the sound of some footsteps, upon which she woke up

and saw the accused Sitaram Tudu, armed with an axe, who assaulted her husband by the axe, who was sleeping on the cot, causing injuries on his

head. Her husband died on the cot itself. The informant raised the alarm, but the accused fled away. After sometime, the accused again came with a

baithi (used for cutting vegetables) but by that time several persons had assembled and they apprehended the accused. She has stated that the

occurrence had taken place due to previous enmity. On the basis of the fardbeyan of the informant, Chandil P.S. Case No.

80Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â of 2005, corresponding to G.R. No. 420 of 2005, was instituted against the accused for the offence

under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.Â

After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian

Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, ten witnesses were

examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased.

No witness was examined by the defence.

P.W.-8 Nikani Hansda is the informant and the wife of the deceased. She has supported the case as eye-witness to the occurrence, stating that the

deceased was her husband, who was murdered in the night between Tuesday and Wednesday, at about 02:00 A.M. She was sleeping with her

husband on the cot and upon hearing some sound, she woke up and saw Sitaram armed with axe, and he assaulted her husband by the axe on his

head, whereupon, she started screaming out of fear. After sometime, Sitaram again came with the baithi (used for cutting vegetables) to assault her,

but the villagers, who had assembled on the alarm raised by her, apprehended him and tied him. She has stated that her husband died at the spot. She

also informed the villagers about the occurrence. On the Wednesday morning, the police had arrived and had recorded her fardbeyan, upon which she

had put her thumb impression. The witnesses Dhiren and Sonaram were also there. She has stated that there was previous enmity between her

husband and the deceased due to fishing. She has identified the accused in the Court, stating that the accused’s house was situated nearby to her

house. In her cross-examination, this witness has stated that the accused had returned back in the morning, but she has again stated that he was

apprehended in the night itself and at that time he was armed with axe. In the morning when he was tied by the villagers he was having baithi (used

for cutting vegetables) in his hand. She has also stated that the accused is related as her as brother-in-law. She has stated that there was no land

dispute between them and the only dispute was for fishing. She has denied the suggestion that she is not the eye-witness to the occurrence. 6.Â

P.W.-1 Sona Ram Hansda and P.W.-3 Dhiren Hansda are the nephew and son respectively of the deceased. The house of P.W.-1 Sona Ram

Hansda is situated at a distance of about 40-50 hands from the place of occurrence, whereas P.W.-3 Dhiren Hansda, being the son of the deceased,

was present in the house itself. Both these witnesses have stated that upon the alarm raised by the informant, they came and saw the accused fleeing

away from the house armed with axe. They have also stated that they saw the dead body of the deceased with bleeding injury near his ear and they

were informed by Nikani Hansda, that the accused Sitaram Tudu had assaulted her husband by axe and had fled away. These witnesses have also

stated that in the morning Sitaram Tudu again came with baithi (used for cutting vegetables) when he was apprehended by the villagers and was tied.

In the morning at about 09:00-09:30 A.M., the police also arrived and the accused was handed over to the police. He also confessed his guilt and he

produced the axe from his house. Both these witnesses have also stated that the occurrence had taken place due to previous enmity. P.W.-1 Sona

Ram Hansda is witness to the seizure list along with one Tika Ram Manjhi (P.W.-4) and he has identified both the signatures on the seizure list, which

were marked Exts.1 and 1/1, whereas P.W.-3 Dhiren Hansda is the witness to the fardbeyan of his mother and he has identified his signature and the

signature of P.W.-1 Sona Ram Hansda on the fardbeyan, which were marked Exts. 1/4 and 1/5 respectively. P.W.-1 Sona Ram Hansda has stated in

his cross-examination that he had not seen the accused assaulting the deceased and he has also stated that when the accused was arrested by the

police he was in drunken state. He has also stated that earlier there was quarrel between the deceased and the accused for liquor. He has also stated

in his cross-examination that he had given the information at the Police Station, but it was not written down. P.W.-3 Dhiren Hansda has stated in his

cross-examination that he was sleeping on the Verandah of his house at a distance of about 6-7 hands where his parents were sleeping. He has also

stated that the accused is related as his uncle. He has denied the suggestion of giving false evidence.     Â

P.W.-2 Chandi Hansda, P.W.-4 Tika Ram Manjhi, P.W.-5 Sankar Hansda and P.W.-7 Rohi Das, are the hearsay witnesses, who have stated that

upon hearing about the occurrence, they went to the place of occurrence in the morning, where they found the deceased dead on a cot.

They had also seen the injury on the head of the deceased. P.W.-2 Chandi Hansda is also a witness to the inquest-report and he has identified his

signature and the signature of witness Pagan Hansda (P.W.-6) on the inquest report which were marked Exts. 1/2 and 1/3 respectively. P.W.-4 Tika

Ram Manjhi and P.W.-5 Sankar Hansda have also stated that they had also seen that the villagers had apprehended the accused who was handed

over to the police, and he produced the blood stained axe before the police from his house. P.W.-4 Tika Ram Manjhi is also a witness to the seizure-

list and he has identified his signature on the seizure-list which was earlier marked Ext.1/1.

P.W.-6 is Pagan Hansda, who is only a witness to the inquest report and he has identified his signature on the inquest report, which was earlier

marked exhibit.  Â

P.W.-10 is Dr. Y. Nath, who had conducted the post-mortem examination on the dead body of the deceased on 18.05.2005 and had found the

following injuries on the dead body :-

Incised wounds:

2.5 cm x ½ cm x bone deep, over left forehead 2â€​ above eye brow.

3 cm x ½ cm x bone deep obliquely across right orbital margin.

Internal- Contusion of scalp with fracture of left frontal bone over area of 16.5 cm x 10 cm with contusion of whole brain.

 This witness has stated that all the injuries were ante-mortem in nature, caused by heavy sharp cutting weapon, and the cause of death was due to

the head injuries. He had identified the post-mortem report to be in his pen and signature, which was marked Exhibit-5.

P.W.-9 Madan Mohan Singh, is the I.O. of the case. This witness has stated that on 18.05.2005, he was posted as Officer-Incharge in Chandil

Police Station. He was informed that one person was murdered at village Barabinda, Tola Nutandih. He made the sanha entry about the information

and proceeded towards the place of occurrence with the police party, where he recorded the fardbeyan of the informant Nikani Hansda. He also

prepared the inquest report and sent the dead body for post-mortem examination. He instituted the police case. He recorded the statements of the

witnesses and also inspected the place of occurrence, which he has detailed in his evidence. He received the post-mortem report and after completing

the investigation, submitted the charge-sheet in the case. He has proved the fardbeyan and the endorsement on the fardbeyan which were marked

Exts.2 and 2/1. He has also proved the formal F.I.R. which was marked Ext.3 and he has also proved the seizure list, which was marked Ext.4. In his

cross examination, he has stated that the accused was apprehended by the villagers at the place of occurrence, and after recording the fardbeyan, he

took the custody of the accused. The axe was also seized which was produced by the accused himself. This witness has also stated that the axe was

not sent for forensic examination as the accused had told him that he had washed the axe. He has denied the suggestion of making faulty

investigation.

The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused has denied the evidence against him. No

evidence was adduced by the defence. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial

Court below, as aforesaid.

Learned senior counsel appearing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the

Trial Court below cannot be sustained in the eyes of law, as the prosecution has failed to bring home the charge against the accused beyond all

reasonable doubts. It is submitted by learned senior counsel that the occurrence had taken place in the dead night and it is difficult to believe that the

accused was identified by the informant in the dark night. It is submitted that the informant is the only eye-witness to the occurrence and the entire

case depends on her evidence only, but in view of the admitted enmity between the parties, her evidence is not reliable. Learned senior counsel has

further pointed out that P.W.-1 Sona Ram Hansda has stated that he had informed the police at the Police Station, but that information has been

withheld by the prosecution, which ought to have been treated as the F.I.R. in the case. It is also submitted that P.W.-1 Sona Ram Hansda has

admitted in his cross examination that the accused was in a drunken state at the time of his arrest, but this fact was neither stated by P.W.-8

                   Â

Nikani Hansda, the informant in the case, nor P.W.-9 Madan Mohan Singh, I.O. of the case. Learned counsel further submitted that the story of

enmity is also doubtful, as P.W.-1 Sona Ram Hansda has stated that there was enmity between the parties due to liquor, whereas other witnesses

have stated that there was enmity due to fishing. Learned senior counsel has also submitted that the weapon of offence was not produced in the

Court. Learned senior counsel submitted that due to these discrepancies in the evidence, even if the witnesses have supported the prosecution case,

the appellant ought to have been given the benefits of doubt.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to bring home the

charge against the accused beyond all reasonable doubts, as  P.W.-8

Nikani Hansda, who is the wife of the deceased, has fully supported the prosecution case as eye-witness to the occurrence. It is submitted that as the

occurrence had taken place in the dead night about 02.00 A.M., there was no chance of availability of any other eye-witness to the occurrence. The

other witness, namely, P.W.-3 Dhiren Hansda, the son of the informant and the deceased, woke up upon the alarm raised by his mother, when his

deceased father had already been assaulted, and P.W.-1 Sona Ram Hansda, the nephew of the deceased, who was living nearby, reached to the

place of occurrence upon the alarm raised by the informant, and both of them had seen the accused fleeing away with the axe. The other witnesses

are the hearsay witnesses, who came to the place of occurrence in the morning and saw the dead body with injury and they have also stated that the

accused was produced before the police and he himself produced the axe in their presence. Some of them are also witness to the seizure list of the

seizure of axe. All the hearsay witnesses were informed about the occurrence by the wife of the deceased and the ocular evidence of these witnesses

is fully corroborated by the medical evidence of P.W.-10 Dr. Y. Nath, and the  post-mortem report proved by him as Ext.-5, which clearly shows

that there were two incised wounds on the head of the deceased which were fatal in the normal course of nature. Learned counsel accordingly,

submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.

Having heard learned counsels for both the sides and upon going through the record, we find that the case is fully supported by the sole eye-

witness to the occurrence of murder, who is P.W.-8Â Â Nikani Hansda, the wife of the deceased, sleeping by the side of her husband at the time of

occurrence. She woke up on the sound of footsteps and saw the accused Sitaram Tudu armed with axe and soon thereafter he assaulted her husband

by axe on his head causing his death at the spot. She raised the alarm, upon which her son P.W.-3 Dhiren Hansda, who was present in the house

itself, and P.W.-1 Sona Ram Hansda, her nephew, both rushed to the spot and they saw the accused fleeing away with the axe from the house. There

is nothing in the cross examination of these witnesses to discredit their testimony and these witnesses are the most natural witnesses to the

occurrence, as the occurrence had taken place in the dead night in the aangan of the deceased. As the accused is related to the informant, as also to

P.W.-1 Sona Ram Hansda, and was living nearby their house, his identification by the informant, her son and nephew cannot be disbelieved. The other

witnesses, who are the villagers, have also supported the prosecution case as hearsay witness. They had reached the place of occurrence in the

morning. They had seen the dead body of the deceased with injury and they had also seen the accused kept apprehended by the villagers, who was

produced before the police and the accused himself produced the axe from his house before the police, which was the weapon of offence, which fact

is also supported by the I.O. of the case, P.W.-9 Madan Mohan Singh, in his cross-examination. We also find from the record that the deceased,

accused and the witnesses are closely related, in as much as, it is admitted by P.W.-8 Nikani Hansda that the accused was related as his brother-in-

law and P.W.-3 Dhiren Hansda has also stated that the accused was related to him as his uncle. P.W.-1 Sona Ram Hansda is nephew of the

deceased and he is equally related with the deceased as well as the informant. There is no evidence of any enmity between P.W.-1Â Sona Ram

Hansda and the accused, and this witness has also fully supported the prosecution case. As such, there is no chance of false implication of the

accused. The evidence of P.W.-10 Dr. Y. Nath and the post-mortem report proved by him as Ext.-5, fully corroborates the evidence of the informant

eye-witness and the other hearsay witnesses and it shows there were two incised wounds on the head of the deceased, which were sufficient in the

ordinary course of nature to cause the death. The discrepancies in the evidence of the witnesses on the point of reason of enmity between the parties,

i.e., enmity for liquor or enmity for fishing, or non-production of the weapon of offence in the Court, cannot be said to be fatal to the prosecution case.

The submission of learned senior counsel for the appellant that P.W.-1 Sona Ram Hansda has stated that he had informed the police at the Police

Station, but that information has been withheld by the prosecution, which ought to have been treated as the F.I.R. in the case, is also of no help to the

defence, as P.W.-1 Sona Ram Hansda himself has stated that the information given by him was not recorded. Even the evidence of the I.O., P.W.-9

Madan Mohan Singh, shows that only sanha entry was made about that information. We are of the considered view that the prosecution has been able

to bring home the charge against the accused Sitaram Tudu beyond all reasonable doubts and there is no illegality / irregularity in the impugned

Judgment of conviction and order of Sentence, passed by the Trial Court below, worth interference by this Court.

In view of the aforementioned discussions, we do not find any illegality in the impugned Judgment of conviction dated 24.03.2008 and Order of

sentence dated 27.03.2008, passed by the learned Additional Sessions Judge (FTC-II), Seraikella-Kharsawan, in Sessions Trial No. 128 of 2005,

convicting and sentencing the appellant Sitaram Tudu, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The

appellant Sitaram Tudu is already in custody, undergoing the sentence.Â

Before parting with this Judgment, we find that P.W.-8Â Nikani Hansda, the widow of the deceased, is the victim of the crime, and she needs to

be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member

Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the

concerned DLSA, so that P.W.-8 Nikani Hansda may be given due compensation at an early date. Let a copy of this Judgment be sent to the

Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful.

We do not find any merit in this appeal, which is, accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned

forthwith, along with a copy this Judgment.