Jharkhand High Court
Anthony Dung Dung vs State Of Jharkhand on 30 April, 2009
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari, Prashant Kumar
CRIMINAL APPEAL (DB) NO. 346 OF 2003
Against the judgment of conviction and order of sentence dated
17.1.2003 and 20.1.2003 respectively passed by Shri Bijay Kumar
Pandit, Sessions Judge,Simdega in Sessions Trial No. 88 of 2001.
Anthony Dung Dung -----------Appellant
Vs.
The State of Jharkhand -----------Respondent
For the Appellant: Mr. Sanjay Kumar Chaturvedi( A.C.)
For the State: Mr. Jagarnath Mahto, APP
PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
HON'BLE MR. JUSTICE PRASHANT KUMAR
By Court: The sole appellant Anthony Dung Dung has challenged the
judgment of conviction and order of sentence dated 17.1.2003 and 20.1.2003 respectively passed by Sessions Judge, Simdega in Sessions Trial No. 88 of 2001 whereby and whereunder he had been convicted under section 302 of the IPC and sentenced to undergo imprisonment for life.
2. The case of prosecution, in short, as per the fardbeyan of informant (P.W. 1) is that on 7.9.2000 at about 7 a.m., the informant (wife of deceased) had gone to bring water and when she returned, she saw that appellant was assaulting her husband with tangi, while he was sleeping. She further alleged that when she raised hulla, she was chased by the appellant, but she ran away and called villagers. It is stated that on arrival of villagers, the appellant fled away. Thereafter when she returned, she saw that her husband was lying dead in pool of blood. It is then stated that some of the villagers had also seen the appellant while he was running away. It is further stated that the aforesaid occurrence took place because of the dispute in between deceased and appellant for partition of joint family property.
3. On the basis of aforesaid fardbeyan, Simdega P.S. Case No. 70 of 2000 dated 7.9.2000 under section 302 of the IPC was instituted and police took up investigation. After completing the investigation, charge sheet was submitted against the appellant under section 302 of the IPC. Thereafter cognizance of the offence taken and then case was committed to the court of 2 sessions. After the commitment, charge was framed against the appellant under section 302 of the IPC and the same was explained to him to which he pleaded not guilty and claimed to be tried. It further appears that the prosecution had examined altogether 11 witnesses in support of its case. After the close of the case of prosecution the statement of appellant was recorded under section 313 Cr.P.C., in which his defence is of total denial. It further appears that thereafter the defence had also examined two witnesses in support of its case. The learned trial court, after considering the evidence available on record had convicted and sentenced the appellant as aforesaid against that the present appeal has been filed.
4. While assailing the judgment of learned court below, learned counsel for the appellant submitted that entire case of prosecution rests on the ocular testimony of P.W. 1. It is further submitted that P.W. 1 is the wife of deceased and it appears that she had not seen the occurrence. Thus on her sole testimony, the conviction of appellant is not warranted. It is further submitted that the tangi which has been used in the commission of present crime, has not been produced in court. Under the circumstance, the alleged confessional statement of appellant leading to recovery of tangi cannot be relied upon for convicting the appellant. Accordingly, it is submitted that the judgment of conviction and order of sentence cannot be sustained in this appeal.
5. On the other hand, learned Additional P.P. submitted that the evidence of P.W. 1 who is the wife of the deceased is wholly reliable and there is no infirmity in her evidence. The informant ( P.W. 1) had stated that when she returned, she saw that appellant was assaulting the deceased. Whereas in the cross examination she stated that when she returned, the deceased had already received the injury. It is submitted that the deceased had received altogether three injuries. Under the aforesaid circumstance, it can be possible that some of the injuries might have been already inflicted on 3 the deceased before coming back of the informant. Thus there is no infirmity and/or contradiction in the statement of P.W. 1. The defence never challenged the statement of P.W. 1 that she was chased by the appellant. This shows that when appellant was inflicting injuries on the deceased, P.W. 1 was present at the P.O. P.W. 4 is also an eye witness , as when he arrived at the P.O. hearing hulla, he saw that Anthony was assaulting Iliyas with tangi. P.W. 3 and P.W. 7 had seen the appellant while he was fleeing from place of occurrence. P.W. 8 and 9 had deposed that police had recovered a tangi on the confession of appellant and prepared seizure list. The I.O. had also stated that he recovered tangi on the confession of appellant. Learned court below, considering the aforesaid cogent and clinching evidences has rightly convicted and sentenced the appellant and the impugned judgment does not require any interference by this court.
6. Having heard the submissions, we have gone through the record of the case. P.W. 10 is the doctor who conducted the post mortem examination on the dead body of deceased Iliyas Dung Dung. The doctor had found following ante-mortem incised wound on the dead body:-
i. Incised wound 3 ½"x1 ½ x4" over the antero-left side of neck Just below left lower jaw.
ii. Incised wound 2 ½"x2"x3" over the left zygomatic area of face about ½" lateral to the left eye with fracture of underlying bone.
III. Incised wound 2"x1/4"/ whole thickness of external ear of left side.
The doctor had given opinion that the death was due to shock caused by above injuries. He also opined that the said injuries were of sharp cutting weapon such as tangi. From perusal of the cross examination, we find that the opinion of the doctor with regard to the cause of death has not been challenged. Thus, in our view, prosecution was able to establish that the deceased had died a homicidal death.
7. It appears that the prosecution had tried to prove its case on the basis of ocular testimony of witnesses, and also on the basis of other 4 circumstantial evidences i.e. the appellant was fleeing away from the place of occurrence armed with tangi and on the confession of appellant a tangi was recovered from his Bari.
8. P.W. 1 Tarsisiya Dung Dung is the wife of deceased. She deposed that on the date of occurrence at 7 a.m. when she returned to her house after fetching water, she saw that appellant was assaulting her husband with tangi. She further deposed that when she raised alarm, she was chased by the appellant for assault, however she ran away and raised alarm, whereupon the villagers arrived. She further stated that her husband died due to the injuries inflicted on his left eye, ear and neck. She then stated that the aforesaid occurrence took place because of dispute in between her husband and appellant for partition of land. During the cross examination, she had stated at para 11 that when she returned to her home, her husband had already received injury and died. The defence had not confronted her on the statement that when she raised alarm, she was chased by the appellant for assault. Thus her aforesaid evidence remains unchallenged.
9. P.W. 2 , Silas Lakra, P.W. 5 Jagdeo Singh, P.W. 6 Kewra Lakra deposed that on hearing hulla, had come to the house of the deceased, where they have been told by the informant that appellant had killed the deceased. P.W. 3 Ganpati Baraik and P.W. 7 Matru Pradhan had deposed that on hearing hulla when they were going to the house of deceased, they saw that the appellant was fleeing away; He was shouting that he had killed Ilyas, go and save him. P.W. 4 Subhas Lakra had stated that when he arrived at the house of deceased he saw that appellant was assaulting Iliyas with tangi, however, when he reached there, appellant fled away. From perusal of the cross examination of this witness, we find that at paragraph no. 9, he admitted that he had not stated before the police that he had seen the appellant while he was inflicting injury on the deceased. Thus, it appears that he is making this statement for the first time in the court. However, his 5 statement that he saw the appellant fleeing from the place of occurrence holding a tangi in his hand also remains unchallenged.
10. P.W. 8 and 9 had stated that police, on being pointed out by the appellant, had recovered a tangi from the 'Bari' of appellant. The said tangi was seized by the police. P.W. 11(I.O) had stated that when he arrived at the place of occurrence for the second time, he apprehended the appellant and on his confession, he recovered a tangi form his Bari and prepared seizure list in presence of witnesses. He has proved the seizure list (Ext.- 5/1).
11. From the perusal of evidence of P.W. 1, we find that her evidence finds corroboration from the medical evidence. The doctor had also found injuries on the left eye, ear and neck of the dead body. The doctor also opined that the said injuries were caused by sharp cutting weapon, such as tangi. The submission of learned defence counsel that statement of P.W. 1 at paragraph 11 shows that she had not seen the occurrence is not acceptable. Because P.W. 1 in her examination-in-chief had stated that when she returned, she saw that appellant was inflicting injuries on her husband. Thus, it is clear that the appellant was inflicting injuries from before. Under the said circumstance, we find no discrepancy in the statement of P.W. 1. It is worth mentioning that the defence had not challenged that P.W. 1 was chased by appellant when she arrived there and raised alarm. This also shows that the informant (P.W. 1) had seen the appellant inflicting injuries on her husband. Moreover it appears that P.W. 1 is a rustic illiterate Adivasi lady. Thus it is possible that she might have misunderstood the question put to her by the skilful cross examiner and under the stress of cross examination certain answers were snatched from her. It has been held by Hon'ble Supreme Court in Krishna Mochi Vs. State of Bihar, 2002(2) East. Cr. C. 156 that " when a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored". In that view of the matter, there is no scope for doubting the evidence of P.W. 1 that 6 she had seen the occurrence. Her evidence is wholly reliable and trustworthy.
12. Apart from the above, ocular version of P.W. 1, the unchallenged statement of P.Ws. 3,4 and 7 that they saw the appellant while he was fleeing from the place of occurrence armed with tangi, also corroborate and prove the prosecution case.
13. Yet there is another circumstance against the appellant. The I.O. had stated that when he came to the place of occurrence for the second time, he arrested the appellant and on his confession he had recovered a tangi from his Bari. The statement of I.O. finds full support from the evidence of P.W.s 8 and 9 who are seizure list witnesses. It is worth mentioning that the confession of the appellant leading to recovery of tangi is admissible under section 27 of the Evidence Act.
14. The submission of learned counsel for the appellant that non- production of tangi is fatal for the case of prosecution, has no force for two reasons; Firstly the defence had full opportunity to cross examine P.Ws 8,9 and 11 on the point of recovery of tangi but nothing could be elicited. Secondly, the I.O. had given explanation for non production of tangi by saying that the said tangi was sent to Forensic Laboratory for chemical examination, but the same was not received back. Thus, in the instant case, the prosecution had explained the circumstance in which the tangi could not be produced in court. It is well settled that when other clinching and acceptable evidences are available on record, non production of seized articles have no fatal consequences on the case of prosecution. Under the said circumstance, as the defence had full opportunity to cross examine the aforesaid witnesses, we find that no prejudice was caused to the defence due to non production of tangi in court.
15. In view of the statement of P.W. 1, 3, 4,7,8,9 and also the confession of appellant leading to recovery of tangi, used in the commission of crime, we find that the prosecution has proved the charge leveled against the 7 appellant beyond the shadow of all reasonable doubts. Thus we find no illegality and/or infirmity in the judgment of learned court below. We, accordingly, affirm the said judgment.
16. In the result, this appeal fails and is accordingly, dismissed.
(Narendra Nath Tiwari, J.) (Prashant Kumar, J.) Jharkhand High Court, Ranchi Dated 30/04 /2009 Sharda/NAFR