Jharkhand High Court
Surajbhan Singh @ Chuha vs State Of Jharkhand on 16 April, 2012
Bench: R.K.Merathia, D.N.Upadhyay
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Criminal Appeal (DB) No.335 of 2005
With
Criminal Appeal (DB)No. 381 of 2005
with
Criminal Appeal (DB) No. 391 of 2005
Against the judgment and order of conviction and sentence dated
9.3.2005and 11.3.2005 respectively, passed by 1st Addl. Sessions Judge, Jamshedpur, in Sessions Trial No. 385 of 1995. Guddu Mishra (Cr.Appeal 335/2005) Surajbhan Singh @ Chuha (Cr.Appeal 381/2005) Suman Singh (Cr.Appeal 391/2005) ..... Appellants Versus The State of Jharkhand (in all cases) ..... Respondent Coram : HON'BLE MR. JUSTICE R.K.MERATHIA HON'BLE MR. JUSTICE D.N.UPADHYAY For the appellant (in Cr. Appeal No. 335 of 2005):
M/s T.R.Bajaj,H.K.Sikarwar, Advocates . For the appellant (in Cr. Appeal 381 of 2005):
M/s A. K. Chaturvedi. Advocate For the appellant (in Cr.Appeal No. 391):
Mr. Jitendra S. Singh. Advocate.
For the State(in all cases):
M/s Amaresh Kumar & Krishna Shekhar, Addl.P.Ps. Date of CAV: 29/3/2012 Date of pronouncement: 16/04/2012 D.N.Upadhyay, J. These criminal appeals have been directed against the judgment of conviction and sentence dated 9.3.2005 and 11.3.2005 respectively passed by the 1st Addl. Sessions Judge, Jamshedpur, in Sessions Trial No. 385 of 1995 (Jugsalai P.S. Case No. 70 of 1994 corresponding to G.R. No. 708 of 1994) whereby the appellants have been held guilty for offences punishable under section 302/34 IPC and sentenced to undergo rigorous imprisonment for life.2
2. Fact emerges from the fard beyan of Sanju Kumar Singh recorded on 25.4.1994 at 16 hours at Gaushala Chowk, P.S. jugsalai is that the father of the informant was sitting in his betel shop situated at Gaushala Chowk, Jugsalai. At about 3.15 p.m. the appellants Suman Singh, Surajbhan Singh @ Chuha, Gudu Mishra and Munna Yadav( absconded during trial) reached to the place. Surajbhan Singh @ Chuha, Munna Yadav and Guddu Mishra pulled out the deceased from his betelshop and threw him down on the road. The aforesaid miscreants instigated Suman Singh to kill the deceased whereafter Suman Singh took out a dagger from his waist and inflicted 7/8 blows causing injuries on the chest of Lalan Singh (deceased). The deceased and the informant cried for help, but the nearby shopkeepers closed down shutters of their shops and fled away. The appellants after causing injuries to Lalan Singh (deceased) moved towards Garha Basa Basti. After the miscreants left the place, people of the locality and the witnesses assembled and took the injured to nearby Jugsalai Hospital and from there to MGM Medical College & Hospital, Jamshedpur where Lalan Singh was declared dead. Police arrived at the place and recorded fard beyan of the informant Sanju Singh (PW7) who happens to be the son of the deceased and registered Jugsalai P.S. Case No.70 of 1994 under sections 302/34 IPC against appellants.
3. The appellants were charge sheeted and after commitment of the case they were put on trial after framing of charges under sections 302/34 IPC.
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4. The prosecution has examined altogether 11 witnesses out of whom, Lallu Singh Yadav (PW1) is an attesting witness to the fard beyan; Mohan Bhagat (PW3),Jawahar Ram PW4 are witnesses to the seizure of blood-stained earth, Nawal Kishore Singh (PW5) ; Harish Tiwari PW9, Vishal Yadav PW 11 have turned hostile and they have not supported the prosecution case. Therefore, evidence of Dr. Akhilesh Kumar Choudhary (PW2), Sajjan Kumar Garhwal (PW6), Sanju Kumar Yadav - informant (PW7) and Tarkeshwar Dubey (PW8) and Sundar Deo Bhagat (PW10) are required to be discussed.
5 Dr. Akhilesh Kumar Choudhary PW2 had conducted post mortem examination on the dead body of the deceased Lalan Singh on 26.4.1994 at about 1.00 p.m. and found the following ante mortem stab wounds :
(I) Over left side, front of mid chest 1.5 c.m. X 0.25 cm x inter costal space;
(ii)Over right lateral aspect of lower chest 1.3.c.m.;x 0.25 c.m.
(iii)over left side back of upper chest 2 cm x .25 c.m. X chest.
(iv) over left side back of upper chest 2 cm x 0.25 cm x chest;
(v)over back of left side upper chest 2 cm x 0.5 cm x chest.
(vi) over left side back of chest 1.5 cm x 0.25 cm x chest deep.
(vii) over right side back of lower chest 1.5 c.m. X .25 cm x chest;
(viii) over right side back of chest scapular area 2 cm x .25 cm x chest
(ix) over right side of back of upper chest 2 cm x 1.5 cm x chest. 4th rib cut near posto choldral junction.
6 Sanju Kumar Singh (PW7) who is the informant has supported the fard beyan given by him. He has stated that on the date of incident i.e. on 25.4.1994, his father was sitting in his betel shop situated at Gaushala Chowk , Jugsalai, Jamshedpur. At about 3.15 p.m. the appellants Suman Singh, Surajbhan Singh @ Chuha, 4 Guddu Mishra and Munna Yadav reached to the place. Guddu Mishra, Munna Yadav and Surajbhan Singh @ Chuha pulled out the deceased from his shop and threw him down on the ground. They told Suman Singh to kill the deceased whereafter Suman Singh took out a dagger from his waist and inflicted repeated blows on the person of the deceased causing injuries on his chest. Seeing the situation grave, nearby shopkeepers shut down shutters of their shops and fled away. He has specifically stated that Suman Singh inflicted 7/8 knife blows on the person of the deceased. After committing the offence, all the accused appellants moved towards Gorabasa Basti. People of the locality and the witnesses assembled there after the assault was over. The injured was removed to nearby Jugsalai Hospital and from there to MGM Medical College & Hospital where he was declared dead. At about 4.00 p.m the police arrived at the place and recorded fard beyan of this witness ( informant). He has proved his signature on the fard beyan and further stated that Lallu Singh and Vishal Singh had signed fard beyan as attesting witnesses. The reason behind murder of the deceased has been assigned that Suman Singh, Angad Singh and Guddu Mishra had threatened the deceased not to indulge in panchaiti, otherwise he will have to face dire consequences. This incident of threatening had taken place a month ago at the residence of the deceased. In his cross examination, this witness has stated that he stayed at the place of occurrence till 8.00 p.m. When this incident took place, he was studying in class V in R.P. Patel School. The school was running in the morning shift from 7.00 a.m. to 11.30 a.m. After attending the 5 school, he used to sit with his father at the betel shop. On the date of incident, he was present at the shop. He has further stated that his father had left the shop at 12.00 noon for having meal and returned back to the shop at 2.00 p.m. he has also stated that after receiving notice from the court, he had come from his native village along with his uncle to give his evidence. The defence counsels had cross examined this witness in detail with regard to his presence at the shop, about the previous incident when threatening was hurled by Suman Singh and the distance of places from the betel shop to which he has answered.
7 Sajjan Kumar Garhwal (PW6) and Tarkeshwar Dubey PW8 are witnesses who had reached the place of occurrence after hearing hulla. When they reached, they saw the deceased lying in a pool of blood having injuries on his person. They took the deceased to Jugsalai P.H.C and from there to MGM Medical College and Hospital where the inured was declared dead. Sundardeo Bhagat (PW10) is a hearsay witness and he has stated that he heard about the murder of Lalan Singh in the evening.
8 Learned counsel for the appellants have challenged the findings of the Sessions judge on various grounds and submitted that the entire prosecution case is based on the solitary testimony of PW7 who is none else, but the son of the deceased. According to the statement of PW7, he was present at the place of occurrence from before the incident and he remained there till 8.00 p.m. He did not accompany his father, then how could he learn at the time of giving fard beyan that his father has been declared dead? It was argued 6 that PW7 is not an eye witness and he had not seen the incident. The conduct of PW7 does not inspire confidence and the evidence could not be considered reliable and trustworthy.
9. In a catena of judgments, Hon'ble apex court has held that if conviction is based on the solitary evidence that must be scrutinized with great care and caution. Unless testimony of such solitary eye witness is considered fully truthful, no conviction could be passed. The informant has stated that he was present at the betel shop at the time of incident and he had witnessed the assault. The evidence on record indicates that the identity of the informant was known to the appellants and had he found present over there, he too ought to have been targeted by the miscreants. Furthermore, this witness has stated that after the incident he did not accompany his injured father to the hospital and he remained present till 8.00 p.m. at the scene of the occurrence. Such conduct could not be considered natural conduct of a human being in such circumstances. The most important witness is PW8 who took the deceased to the hospital and also informed the Police on the way when the deceased was being taken to MGM Medical College Hospital. This witness has clearly stated in his deposition that he had not seen the informant present at the spot when they removed the deceased from the place for taking him to hospital. The testimony of this independent witness cannot be discarded because he has not been declared hostile. 10 The next point which the learned counsels have raised is that the prosecution has failed to prove the motive behind the murder. The informant has brought on record that prior to the date of incident, 7 Suman Singh, angan Singh and guddu Mishra had threatened the deceased and he was warned not to indulge in the panchaiti, but this fact has not been corroborated by any evidence.
According to the evidence of PW7, occurrence took place at about 3.15 p.m. at a market place, but no independent witness has supported the prosecution case. The investigating officer has not been examined to prove the place of occurrence. There was delay in sending the FIR. Learned counsels appearing on behalf of the appellants Guddu Mishra, and Surajbhan Singh @ Chuha, further submitted that these appellants were admittedly not armed with any weapon at the time of the occurrence and they had not participated in the assault in any manner. The place of occurrence is a market place where presence of persons is quite natural. There is no evidence on record that there was pre meeting of mind and these appellants have shared common intention to murder the deceased. The appellants have relied upon the judgments reported in the case of State of Punjab Vs. Harbans Singh (AIR 2003 SC 2268); Babu Singh Vs. State of Punjab ( 1964 (1) Cr. L.J. 566; and Arun Kumar Sharma Vs. State of Bihar ( 2010 (1) SCC 108.
11. On the other hand, learned counsel appearing on behalf of the State, has vehemently opposed the arguments advanced on behalf of the appellants and supported the impugned judgment of conviction and sentence. He has further pointed out that the informant who was aged about 12 years at the time of the incident had innocently given the true picture of the incident without being influenced from any corner. He had no occasion to consult any one 8 after the incident and before his fard beyan was recorded. One can imagine the mental shock which the informant might have sustained after seeing the incident in which his father died and it is not expected from a boy of that age that he would give false statement before the police and would try to implicate innocent persons.
It is argued that conviction can be based on the solitary evidence of an eye witness if it is fully reliable and trustworthy. There is no merit in these appeals which are liable to be dismissed.
12. We have carefully gone through the evidence on record. We do admit that conviction of the appellants has been based on the evidence of the solitary eye witness, who is the son of the deceased. Keeping the arguments advanced on behalf of the appellants in mind, we have carefully scrutinized the evidence ofPW7 and we find that the statement which the informant had given in his fard beyan recorded within an hour of the incident stood fully corroborated by him in his deposition in court though it was recorded after about five years of the incident. We find that this witness was studying in class V at the time of the incident. He has given his age at the time of deposition in court as 16 years, meaning thereby the informant was aged about 11-12 years at the time of the incident. The statement of PW7 in the manner in which he deposed in court indicates that he had given his statement in such a way that the entire incident was flashing in his mind like a movie and he had not missed any detail of it. He has stated that after his father was thrown down on the road, the appellant Suman Singh inflicted 7/8 knife blows and this fact find fully corroborated from the evidence of Dr. A. K Choudhary (PW2) 9 who had conducted post mortem on the dead body of the deceased. The doctor had found as many as 8-9 stab wounds on the person of the deceased. Thus, the details of ocular evidence stood fully corroborated from the medical evidence. The learned counsels have raised a point that no independent witness has supported the incident though it had taken place in broad day light within the market place. In this context, the evidence of PW7 again becomes relevant when he says that after seeing the incident, nearby shopkeepers had shut down the shutters of their shops and fled away. We all know that nobody wants to invite the wrath of offenders and normally people want to keep themselves away from being indulged in such litigations. Moreover, the quality of the witnesses is important, and not the quantity. We do not feel inclined to entertain the arguments that the conduct of PW7 was not natural, because he did not accompany his father up to the hospital. Again, we have to consider the age of the PW7 who was hardly aged about 11-12 years on the date of occurrence. It was not possible for a boy of that age to assist his injured father in getting medical treatment and that might be the reason that he was not allowed to accompany his injured father who was being removed to the hospital by the witnesses who assembled at the place. We are also not inclined to give weightage to this argument as to how the informant could learn about the death of his father at the time of giving fard beyan though he had not accompanied his father upto hospital. The informant has clearly stated about the movement of his father from one hospital to another which was informed to him at the place. In such cases, the news 10 spreads like a wild fire in the forest and, therefore, there is no reason to disbelieve the version of PW7 who stated that his father was declared dead in the hospital. The evidence of PW8 could not be considered free from doubt. When he says that he had not seen the informant at the place of occurrence, that might be for the reason that he was busy in removing the injured to the hospital and he must be in hurry. Besides the above, we have already observed that the statement of PW7 was promptly recorded within an hour of the incident and he was aged about 12 years at the relevant point of time and he did not get opportunity of being influenced by any one within that span of time. Not only that, we have also observed that the details of incident which PW7 had given, even after five years of incident is being given in such a manner that he had been witnessing the incident like a movie. We are of the considered opinion that the evidence of PW7 is wholly reliable and this witness is absolutely truthful.
13. Now coming to the second part of the argument in which application of section 34 of the Indian penal Code has been questioned, the existence of common intention has always to be inferred from the facts of the case. The evidence on record clearly speaks that all the appellants came together at the place of occurrence. Appellants Guddu Mishra, Surajbhan Singh @ Chuha and absconding accused Munna Yadav pulled the deceased from the shop and threw him down on the road. They also ordered appellant Suman Singh to kill the deceased. The role played by these appellants is sufficient to hold that there was pre meeting of mind and 11 they had shared common intention to murder the deceased. It was also stated that after the incident, all of them moved together towards Gorabasa Basti. Therefore, the inference must be that all the four appellants had gone to the place of occurrence with the intention to commit murder of the deceased. ( Please see 1964 (1) Cr. L. J. 564 and 2010 (7) SCC 759 ).
14. The evidence of PW7 cannot be discarded only because he is the son of the deceased and an interested witness. Hon'ble apex court in the case reported in 2011(3) Crimes 10 SC ( Bhagaloo Lodh Vs. State of U.P.) has held in paragraph-14 as follows :
"14. Evidence of a close relation can be relied upon provided it is trustwrthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re- appreciated the said evidence properly to reach the same conclusion, if is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased (Vide:M.C. Ali & Anr. v. State of Kerala, AIR 2010 SC 1639; Myladimmal Surendran & Ors. V. State of Kerala, AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh, (2009) 16 SCC 531; Prithi v. State of Haryana, (2010) 8 SCC 536; Surendra Pal & Ors. v. State of U.P. & Anr; (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36). In view of the law laid hereinabove, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses."12
15. If the evidence of eye witness is cogent and reliable, motive even if not proved, makes no difference and conviction can be passed.
It was held by the Hon'ble Apex Court in the case of Dharnidhar v. State of Uttar Pradesh & others reported in (2010) 7 Supreme Court Cases 759- significance of relevancy of motive would primarily depend upon the facts and circumstances of given case. In the case in hand, there is eye witness whose version is supported by expert and other evidence. Their statements find corroboration and in fact they completely fit in with the case put forward by the prosecution and there is hardly any occasion for us to doubt the version of prosecution. It is not always necessary for the prosecution to establish definite motive for commission of crime to secure conviction of the accused. It would always be relatable to facts and circumstances of a given case. Absence of motive does not essentially result in acquittal of accused when he is otherwise found guilty by cogent and reliable evidence. However, in the cases which are entirely or mainly based upon circumstantial evidence, motive can have greater relevance or significance, which is not the position in this case.
16. It appears that the fard beyan of the informant was recorded promptly within an hour excluding possibility of any manipulation in lodging of the FIR and hence the arguments that the FIR was sent to the court after two days which creates doubt is not tenable.
17. In view of the above discussions, we do not feel inclined 13 to interfere with the judgment of conviction and sentence passed by the trial court in Sessions Trial No. 385 of 1995 and the same stand upheld. The appellants Guddu Mishra and Surajbhan Singh @ Chuha are on bail. Their bail bonds stand cancelled and they are directed to surrender to serve out the sentence within a month from the date of this judgment, failing which the court shall be at liberty to take coercive steps to secure the attendance.
There is no merit in these appeals. The appeals are, accordingly, dismissed.
I agree Sd/-( D.N. Upadhyay,J.)
Sd/- (R.K.Merathia,J.)
Sd/- ( R.K.Merathia,J.)
Jharkhand High Court,Ranchi,
Dated 16th April, 2012,
Ambastha/NAFR