Jharkhand High Court
Jagat Lohar And Kaila Lohar And Amrit Sai ... vs The State Of Jharkhand on 22 June, 2007
Equivalent citations: 2008(56)BLJR303, [2007(4)JCR94(JHR)], 2008 CRI. L. J. (NOC) 158 (JHAR.) = 2007 (3) AIR JHAR R 851 (DB), 2007 (3) AIR JHAR R 851, (2007) 3 JLJR 552, (2007) 4 JCR 94 (JHA)
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 0303
1. Both these appeals separately preferred by the appellants against a common judgment and order of conviction and sentence were heard together and are being disposed of by this common judgment.
Page 0304
2. The appellants were charged with, tried and convicted for offences under Sections 302/149, 307/149 and 148 of the Indian Penal Code, and sentenced to undergo life imprisonment, besides payment of fine, for offences under Sections 302/149 IPC, and sentenced to undergo rigorous imprisonment for ten years for offences under Section 307/149 of the Indian Penal Code.
3. The gist of the charge against the appellants is that on 18.11.1995 they along with others had formed an unlawful assembly armed with lethal weapons and had assaulted the informant Malkan Sai, his daughter Chanchal Kumari and his son Loknath Sai causing serious injuries to the informant and fatal injuries to his two children. The case was registered on the basis of ford beyan (Ext. 7) of the informant Malkan Sai (PW11) recorded at 7.30 a.m. on 19.11.1995 by the police officer (PW13) at Chandwa. The investigation was taken up by the police against six accused persons named in the FIR. Two out of them had absconded while the present four appellants had faced trial.
4. The case of the prosecution, in brief, is that a land dispute was persisting between the informant (PW11) and the appellant Amrit Sai, Jamuna Sai and Baleshwar Sai. The dispute was also in respect of purchase of kerosene oil from the shop of the informant. Further accusation was made by the appellants and members of their family against the informant claiming that he had practiced witch-craft and as a result of which the wife and a child of accused Birua Lohar (absconding) had died. It is alleged that in the evening of 18.11.1995 at 7.00 p.m. the informant (PW11) went to the house of his neighbour Kail Sai to engage some labourers and while he was returning home, he was ambushed on the way by the appellants, who were armed with Tangis in their hands. The appellant Amrit Sai attacked the informant with tangi and when the informant turned about, the blow struck on his chest. He fled away raising alarms to the house of Kail Sai and entered into the house. He was followed and chased by the appellants upto the door of Kail Sai who misled them by pointing towards another direction. The assailants thereafter came to the house of the informant and searched for him, and on not finding him there, they assaulted the informant's wife with blunt portion of the tangi and in the same transaction, they assaulted the informant's daughter Chanchal Kumari, aged 10 years who was sleeping on a mat and also assaulted the informant's son Loknath, aged 15 years. After the assailants had left the house of the informant, the later, along with Kail Sai, came to his house and found his daughter Chanchal Kumari and Son Loknath lying dead. Due to late hours of the night and in fear of further attack, he could not come out of his house. However, information was conveyed to the village chaukidar on the next morning and the informant went to the State dispensary for treatment of his injuries. On receiving the O.D. Slip from the hospital, the police officer of Chandwa Police Station came to the hospital and prepared an inquiry slip asking the doctor to provide medical treatment to the injured where-after the informant was given medical treatment. The fard beyan of the informant was also recorded at the State dispensary. After registering the case, the police officer proceeded to the place of occurrence. Dead bodies of the son and the daughter of the informant (PW11) were found in the house of the informant and a blood stained tangi was recovered by the police officer from within the courtyard of the informant. After preparing the inquest report of the dead bodies, (Ext 6 and 6/1), and preparation of seizure list (Ext.5), the investigating officer forwarded the dead bodies to the hospital for post mortem examination. Autopsy Page 0305 on the dead bodies were conducted by Dr. R.N. Sharma (PW5) who, on examining the dead body of Chanchal Kumari, had found the following ante mortem injuries on her body:
Ante mortem incised wound on the right side of abdomen measuring 4"x2"x1" caused by sharp cutting weapon like a tangi;
(i) Fracture of right humerous caused by hard substance;
(ii) Intestine protruding out of the wound from abdomen;
(iii) Peritoneum was found cut.
Cause of death in the opinion of the doctor was shock and hameorrhage due to abdominal injuries.
The doctor had also found the following ante mortem injuries on the dead body of the deceased Loknath Sai:
(i) incised wound on the left side of neck 4"x2"x2"
(ii) incised wound on back measuring 1"x 1/4 "x 1/8" and 1/2 "x 1/4" x 1/8".
All injuries were caused by sharp cutting weapon. Cause of death in the opinion of the doctor was haemorrhage due to neck injury. The doctor has further opined that time elapsed since death was within 12 to 24 hours prior to autopsy.
5. The appellants pleaded not guilty to the charge claiming their false implication in the case.
6. Altogether 13 witnesses were examined at the trial by the prosecution. They include the informant (PW11), informant's wife Yasoda Devi (PW1), child witness Nandlal Sai (PW6) and PW7, Another son of the informant both of whom claim to be eye witnesses to the occurrence.
7. Confirmation to the fact that the two minor children of the informant had suffered homicidal death on account of the injuries inflicted upon them, is available from the inquest report prepared by the investigating officer and the statements of the witnesses (including the witnesses to the inquest and also from the evidence of the doctor who had conducted post mortem examination and had recorded his observation in the post mortem reports.
8. There are two different places of the occurrence as per the prosecution case; the first being the alley between the house of Kail Sai (PW3) and house of the informant. Marks of violence were found on the ground within the alley by the investigating officer and the witnesses also testified the same to be the place where the informant was ambushed and assaulted with tangi. The second place of the occurrence is the house of the informant. The investigating officer had found the dead bodies of both the minor children within the house and had also found a blood stained tangi by the side of the boundary wall of the compound. The witnesses to the seizure and witnesses to the inquest have confirmed both these places of occurrence. No controversy appears to have been raised by the defence about the fact that the two children had suffered homicidal death and also about the place of the occurrence. The trial court had taken note of the evidence on these two issues. By reference to the evidence on record, the trial court has also taken note of the fact that in respect of the injuries sustained by the informant, the injury report was adduced in evidence by the doctor who had examined the injured and had found a sharp transverse cut measuring 1"x 1/2 " x 1/2" over front sternum with clotted blood inside the wound. The injury, Page 0306 according, to the doctor, was simple in nature caused by a sharp instrument. The fact that the informant had sustained a bleeding injury on his chest appears to have been confirmed by the investigating officer who had seen the injury and had prepared the injury slip with his recommendation to the doctor for medical examination of the injured and also by PW3 Kail Sai and PW6 Nandlal Sai, both of whom claim to have seen the injury on the body of the informant. On the point of occurrence, the trial court after analyzing the evidence of the witnesses, had placed reliance on the testimony of the informant, his wife PW1, the informant's son Kauleshwar Sai (PW2) and Balram Sai (PW7) finding support from the evidence of PW3 Kail Sai, PW6 Nandalal Sai and PW9 Lalo Devi, daughter in law of the informant, all of whom claim to be eye witnesses to the occurrence and the evidence of the doctor who had conducted the post mortem examination and the doctor who had treated the injuries of the informant. On the basis of the evidence of these witnesses, the trial court had recorded its finding of guilt against all the four appellants herein for the aforementioned offences and convicted and sentenced them accordingly.
9. Mr. A.K. Kashyap, learned Counsel appearing on behalf of the appellants in these appeals has advanced common grounds while assailing the judgment of conviction and order of sentence of the appellants.
10. The main ground is that the trial court has misread the evidence on record and has committed a grave error by placing implicit reliance on the testimony of the witnesses all of whom happen to be near relations of the informant and are therefore highly interested witnesses and considering the fact that admittedly, there was previous enmity between the parties, the evidence of these interested witnesses should not have been relied upon in absence of independent corroboration. Further ground is that the witnesses particularly PWs 2, 7 and 9 have indulged in exaggeration and embellishment in their respective evidence as compared to their original statements as given to the investigating officer and therefore their claim of being eye witnesses to the occurrence should not have been accepted by the learned trial court. Learned Counsel claims further that PW6 being not only the son of the informant is a child witness and placing reliance on his testimony without necessary corroboration from any other source was an error committed by the learned trial court. Besides highlighting some contradictions in the manner of assault, the number of blows dealt on the victims the manner of entry of the assailants into informant's house in the evidence of these witnesses claiming the same fatal to the prosecution's case. The other ground advanced by the appellants is that admittedly, it was a dark night at the time of the occurrence, but the prosecution has not come up with a definite evidence regarding the source of illumination and therefore the claim of the informant that he was assaulted within the alley by the appellants and two others whom he had seen and identified in the darkness cannot be accepted and relied upon. Similarly, claim of the witnesses that they had seen the assailants in the illumination of a lantern burning in the house, should not have been accepted by the trial court since no such lantern was seized by the investigating officer or found by him and further more, it is in the evidence of the informant's wife that she had put off the lantern at the time of the occurrence and had ignited the same only after the informant returned home in an injured condition along with PW3. Learned Counsel tries to impress that even if there was a lantern in the house, the fact that she had shut the light and there being no source of illumination, the claim of the Page 0307 witnesses that they had seen and identified the appellants as persons who had intruded into the house and assaulted the deceased and also the family members of the informant's house, should not have been accepted and relied upon by the learned trial court.
In addition to the above grounds, learned Counsel next refers to the purported suppression of the information given by the informant at the police station. Referring to the evidence of the informant and that of PW3 Kail Sai, learned Counsel argues that according to the informant, he had gone to the police station on the next morning where he had narrated the incident before the police officer and this also is confirmed by PW3 who has claimed to have accompanied the informant. Yet, instead of producing the information given by the informant at the police station, the prosecution has produced his subsequent statement as being the fard beyan of the informant which was recorded at the State dispensary claiming the same to be the FIR on the basis of which the case was registered. Learned Counsel argues that this amounts to suppression of material information and evidence and this assumes significance on account of the fact that the FIR was received by the Magistrate after delay of one day. Learned Counsel further agitates that though the blood stained tangi was allegedly seized and recovered from the place of occurrence, it was neither produced at the trial, nor was it sent for forensic examination.
11. Learned Counsel for the State, on the other hand, while refuting the grounds advanced by the appellants, claims that the entire grounds are misconceived and misleading. Learned Counsel explains that the first occurrence in which the informant was waylaid and assaulted, took place within the alley and the informant being the only person at the place and having sustained injury could alone testify to the occurrence and the evidence of the informant on this issue is clear and categorical and finds support from the evidence of PW3 in whose house the informant on being chased by the assailants had entered after sustaining injuries. As regards the occurrence which took place at the house of the informant, since the occurrence was within the house (compound of the house), the members of the family present had seen the occurrence and as eye witnesses, they have supported the prosecution case in all its material particulars. Leaned Counsel adds that since these witnesses happen to be members of the informant's family, their testimony cannot be brushed aside on the ground of their being highly interested witnesses. Learned Counsel sums up by stating that the evidences on record are more than adequate to confirm that the present appellants along with two of the absconding assailants had not only made murderous attack on the informant, but had also committed murder of his innocent children.
12. Referring to the grounds advanced by the appellants, it appear that the defence has raised controversy on the reliability of the fard beyan (sic) that the earliest version/statement of the informant recorded at the police station has been suppressed. The evidence of the informant and that of the PW3 do suggest that the informant had initially gone to the police station there he met the police officer and had reported about the occurrence. Though the informant claims that his statement was initially recorded by the police at the police station, but he also says that the police had asked him to go to the hospital immediately for treatment of his injuries. Interestingly, the defence has not elicited any information from the investigating officer as to whether the informant had met him at the police station initially and had Page 0308 narrated about the occurrence and neither has any information been elicited as to whether any station diary entry was made on the basis of the information given, if any, by the informant at the police station. Thus, it is evident that even if the informant had gone first to the police station, no statement even if given by him, was reduced to writing. Considering the injured condition of the informant, inference is that he was promptly directed to go to hospital for treatment of his injuries. On reading the evidences of the informant along with evidence of the investigating officer and of PW3 as also of the doctor (PW8), it would appear that on seeing his condition, the injured was dispatched immediately to the hospital without wasting of time at the police station and the police officer had almost simultaneously reached at the hospital whereafter the injured was examined by the doctor at the dispensary and therefore, the earliest occasion for the informant to give detailed version of the occurrence was at the dispensary where his fard beyan was recorded. Considering this aspect of the case, it does not appear that the prosecution has suppressed any material information from being placed on record. The evidence of the informant on the occurrence is consistent with his statement in the fard beyan. He has narrated as to how he was ambushed in the (sic) and attacked by the appellants. He has also claimed to have seen and identified all the six assailants including these appellants. The defence has raised a plea that in view of the darkness and lack of illumination within the alley, the claim of the informant that he had identified the assailants cannot be believed. This argument iS not porsuasive because of the fact that the appellants are almost next door neighbours of the informant since their houses are located at a distance of about 150 yards from each other as per the evidence of the investigating officer and both the parties belong to the same village and are well acquainted with the features of each other. Further more, the evidence of PW3 that it was these appellants who had come to his house in search of the informant in the hours of night and the fact the informant in an injured condition had entered into the house of PW3, further confirms that it is these appellants who had assaulted the informant in the alley. The evidence of the members of the informant's family offer the eye witnesses account of the occurrence commencing from the time when the assailants had intruded into the house armed with weapons and searched for the informant. The witnesses assert categorically that they had seen and identified these appellants as being the intruders who before retreating, had assaulted the minor daughter of the informant who was sleeping on a mat and also the informant's son who was present in the house at that time. The witnesses also confirm that the assailants had also assaulted the informant's wife who in her own testimony has claimed to have sustained injuries even though supporting evidence by way of injury report has not been brought on record by the prosecution. Nevertheless, there is consistent evidence of all the inmates of the house that they had seen the assault made by the appellants on the two minor children of the informant and that such assault was made jointly by all the appellants. It is true that the witnesses do not specify the particular persons amongst the appellants who had caused the specific injuries on the two minor children, but the consistent evidence of the witnesses is that all the appellants, armed with weapons, had launched the assault after barging into the house. Learned Counsel for the appellants points out some contradictions in the ocular evidence of the witnesses regarding the weapon used for assault, since some witnesses refer to the weapon as 'barcha', others refer to the weapon as tangi and further, to some purported contradictions in the ocular and medical Page 0309 testimonies available in the statement of the PW9 who claims that as many as five tangi blows were dealt on the minor girl, whereas the medical evidence does not correspond to such statement. The description of the weapon used by the assailants has been described by the witness according to their own perception and in the manner in which they chose to describe the weapon. In any case, both barcha and tangi referred to are heavy sharp cutting instruments and even if a solitary witness describes the weapon in a different manner from the description given by the other eye witnesses, it does not create any serious dent in the testimonies of the witnesses regard being had to the fact that the testimony of the witness is consistent on the broad aspects of the case. Furthermore, I do not find any serious contradiction in the ocular testimonies of the witnesses as per the medical evidence since as many as four ante mortem injuries were found by the doctor on the dead body of the minor girl and similar incised ante mortem injuries on the body of the minor boy was also found.
13. The claim of the appellants that no independent witness was examined to corroborate the testimony of the family members of the informant does not appear to be persuasive in view of the fact that the second occurrence in the same transaction had occurred within the courtyard of the house of the informant and there could be no occasion for any outsider to be present in the house. The presence of the family members of the informant in the (sic) at the time of the occurrence is therefore natural. The further claim of the appellants that these witnesses are highly interested witnesses does not appeal to reason since the defence has not brought on record any such evidence to suggest that any of these witnesses had any axe to grind against the appellants or were interested in securing conviction of the appellants by all means. It is true that admittedly, there was previous enmity between the informant and the appellants over land dispute and hostility on account of the belief of the appellants that the informant had practiced witch craft and caused death of the wife and a child of one of the assailants. But this in itself does not lead to any inference that the witnesses had intentionally offered false testimony for the purpose of securing conviction of the appellants even by resorting to deposing falsely. The evidence of PW3 gives enough corroboration to the testimony of the informant and also to the testimonies of other eye witnesses to the occurrence. His evidence confirms not only the informant's claim that on being chased by the assailants, he had entered into the house of PW3 who also confirms that it was these appellants who had chased and followed the appellant upto the house of PW3. The evidence of PW3 also lends support to the testimonies of the witnesses to the occurrence which took place within the court yard of the informant's house since on arriving at the house of the informant along with the injured informant, this witness was informed by the inmates of the house regarding the manner in which the appellants had entered into the house and had inflicted injuries on the inmates of the house, including the fatal injuries to the minor children.
14. As regards the controversy regarding the source of illumination, a reasonable answer is available even in the evidence of the witnesses who claim to have seen and identified the assailants in the light of a lantern. PW1 has though admitted that soon after the occurrence, she had put off the lantern and had lit the lantern again after the informant had arrived, but the defence has not elicited any information from any of the witnesses that at the time of intrusion by the appellants into the house of Page 0310 the informant, the lantern was not burning. The argument that non seizure of the lantern by the investigating officer falsifies the claim of the witnesses regarding the existence of the lantern, is also not persuasive. Merely because of the failure of the investigating officer to seize the lantern, the testimonies of the witnesses regarding the existence of the lantern as being the source of illumination at the time of the occurrence cannot be disbelieved. The trial court appears to have made elaborate discussion of the evidences of these witnesses and has assigned adequate reasons for placing reliance on the testimonies of the witnesses finding support from the independent testimonies of the doctor and that of the investigating officer who, on the basis of his objective findings, has lent ample corroboration to the testimonies of the informant and the witnesses.
15. On reading the entire evidences on record, there is therefore no doubt about the consistency in the testimony of the witnesses regarding the manner of the occurrence commencing from the first time when the informant was ambushed within the alley and a tangi blow was wielded on him and the evidence in respect of the subsequent incident which occurred within the house of the informant resulting in the death of the two minor children of the informant. Yet, the same evidence also leads to certain other material and relevant inference. Going by the sequence of events, it was the informant who was the main target of the appellants on account of land dispute and also on account of the appellants' belief that he had practised witch craft resulting in the death of two members of the family of one of the assailants. The evidence further suggests that all the appellants variously armed with lethal weapons had ambushed the informant who was attacked by one of the appellants with a tangi which resulted in injuries on his chest. The informant managed to escape further assault by fleeing away and by concealing himself within the house of the PW3. The assailants thereafter went to the house of the informant in his search and not finding him there, they resorted to indiscriminate attack on whosoever they found, and in the process, they assaulted both the minor children with lethal weapons causing injuries to them which proved fatal. It may be reasonably inferred from these facts that the original intention of the assailants was to commit murder of the informant and it is in furtherance of the common object of the assailants that they had come prepared, armed with lethal weapons, and had ambushed the informant and had assaulted him with the intention of killing him and but for the providential escape, the informant could not have survived death at the hands or the assailants. Mere fact that a solitary injury which the assailants were able to inflict on the informant was simple in nature does not detract from the inference that the intention of the assailants behind the assault on the informant was to kill him. However, there does not appear any sharing of common object by the assailants for committing the murder of the two minor children of the informant. The sequence of events suggests that being frustrated on being not able to catch hold of the informant, the assailants vented their ire on the inmates of the house who appeared before them and assaulted them indiscriminately. It is at the same time significant to note that one of the assailants, Jagat Lohar (appellant), according to PW7 was armed with a pistol, but it was not used by the appellant against any of the victims. The evidence of PW7 also suggests that it was the assailant Burhwa Lohar (absconding) who had assaulted Chanchal Kumari with tangi while she was sleeping, on a mat. Same is the evidence of PW2 who also specifically accuses Burhwa Lohar as the person who had inflicted fatal injuries on Chanchal Kumari. Further evidence of the witnesses as regards the injuries inflicted upon the minor son of the informant is Page 0311 against all the assailants who had allegedly caught hold of the victim together and had inflicted injuries by tangi and pharsa on the victim. Thus, there is specific evidence attributable to one of the assailants namely Burhwa Lohar for causing fatal injuries on the deceased girl, though no such act of violence is attributed to any other assailants in respect of the fatal injuries caused to the minor girl. The testimony of the eye witnesses do, however, suggest amply that all the accused persons/appellants being armed with lethal weapons had trespassed into the house of the informant and after catching hold of the minor son of the informant, they had inflicted injuries on him by various weapons causing fatal injuries which do suggest that the act done by them was with the intention of causing such bodily injury to the victim and the bodily injury so intended to be inflicted had proved fatal and sufficient in the ordinary course of nature to cause death of the victim. In this view of the matter, even if the original intention of the appellants to cause death of the minor son and daughter of the informant was absent, but the joint assault made on the minor boy and the resultant injuries inflicted on him do give positive inference that the intention of the appellants behind the assault was to cause bodily injuries to the victim which could be sufficient in the ordinary course of nature to cause death of the victims. In this view of the matter, Explanation 3 to Section 300 of the Indian Penal Code is sufficiently made out and the conviction of the appellants for offences under Section 302/149 of the Indian penal Code is sustainable. Likewise, the conviction of the appellants for offences under Section 307/149 IPC is also sustainable for the reasons mentioned above.
16. In the light of the above discussions, we do not find any merit in these appeals which are accordingly dismissed. The conviction and sentence of the appellants by the trial court in S.T. 173 of 1996 for offences under Section 302/149 and Section 307/149 IPC is sustained.