Jharkhand High Court
Jugal Mahto vs The State Of Bihar on 6 April, 2007
Equivalent citations: 2(2007)BC2028, [2007(4)JCR640(JHR)], 2008 CRI. L. J. (NOC) 59 (JHAR.) = 2007 (3) AIR JHAR R 462, 2007 (3) AIR JHAR R 462, (2007) 3 EASTCRIC 357, (2007) 2 JLJR 570
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 2029
1. This appeal is directed against the judgment of conviction and sentence dated 27.9.1996 and 29.9.1996 respectively passed by the learned Sessions Judge, Godda in Sessions Trial No. 135 of 1996, whereby the appellant was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life. Jist of the charge for which he was put on trial, is that in the evening of 29.2.1996 in front of his house situated within village Pipra, he had inflicted fatal injuries on his cousin sister-in-law, Malti Devi (deceased), causing her death at the spot itself.
2. The prosecution case was registered on the basis of the fardbeyan (Ext.-3) of the informant Kanhai Mahto (PW3) recorded at the place of occurrence at about 10 PM on the dale of occurrence on 29.2.1996.
Case of the prosecution is that on 29.2.1996 while the informant was at his house situated within village Pipra, he saw that his mother-in-law Malti Devi (deceased) had gone to the wheat field nearby for cutting grass. Later, he saw the appellant Jugal Mahto approaching the lady at the field armed with Katta (sickle). At that time, besides the informant (PW3), his wife (PW6), his Page 2030 sisters-in-law (PW4, PW5 and PW10) were also present in the house. All of them saw that the deceased was brought by the appellant from the field on to the road in front of his house. They also saw that the appellant was in an agitated mood demanding answer from the deceased as to why she had got the names of her daughters mutated in the revenue records pertaining to her paddy lands and was insisting upon her to accompany him to the Revenue Office to get the names of her daughters cancelled from the revenue records. It is alleged that almost simultaneously, the appellant began assaulting the deceased lady with the sickle in his hand inflicting multiple injuries on several parts of her body including her palm, hands and neck, as a result of which the victim suffered death at the spot itself. On information, the police had arrived and recorded the fardbeyan (Ext.-3) of the informant. More police officers including the investigating officer (PW12) arrived at the scene. The police prepared the inquest report pertaining to the dead body of the deceased and had also seized a blood stained sickle lying by the side of the dead body and the corresponding documents were prepared in presence of the witnesses.
3. The appellant in his defence had denied the charge, pleading not guilty and claiming innocence and of his false implication at the hands of the informant and his Mausa Sasur (maternal father-in-law).
4. Altogether 12 witnesses were examined by the prosecution at the trial including the informant (PW3), the doctor (PW1) who had conducted postmortem examination on the dead body of the deceased, the investigating officer (PW12), witnesses to the inquest and the seizure of the blood stained sickle PW2, PW8 and PW11 besides the daughters of the deceased who had claimed themselves to be eyewitness to the occurrence.
5. The learned Trial Court placing reliance on the testimonies of the informant and other witnesses namely, PW4, PW5, PW6 and PW10 accepting them to be the eyewitness to the occurrence and finding support from the evidence of the doctor (PW1), recorded its finding of guilt against the appellant for the murder of the deceased.
6. Shri Jai Prakash Jha, Sr. Advocate, has represented the appellant assisted by Shri Dilip Kumar Prasad, who was appointed as amicus curiae.
7. Learned Counsel for the appellant has assailed the impugned judgment, of conviction and sentence on the following grounds;
a. that the finding of guilt as recorded by the learned Trial Court, is perverse and against the evidence on record, b. that the learned Trial Court has committed grave error in placing implicit reliance on the testimonies of PW3, PW4, PW5, PW6 and PW10 despite the fact that all these witnesses being close relations of the deceased, were highly interested witnesses and in absence of corroboration to their testimony from any independent source and further, considering the numerous contradictions in their evidences, their testimonies could not be considered as trustworthy and reliable.
c. that not a single independent witness from the village has come forward to support the testimony of the interested witnesses and though two witnesses namely, PW8 and PW11 being co-villagers were examined, but both of them Page 2031 have carefully avoided to reveal any information whatsoever regarding the alleged manner of occurrence and identity of the assailants, d. that since admittedly, the informant accompanied by PW7, had gone to the police station and had reported the incident which was recorded by the police officer present at the police station at about 9.00 AM, but no such information was produced by the prosecution, nor put forward as the first information report and, therefore, fardbeyan of the informant recorded much later, could not have been treated as the first information report, since it is clearly hit under the provisions of Section 162 Cr. PC.
e. Prosecution has not proved the alleged motive for the murder against the appellant.
f. that the prosecution's failure to examine the police officer namely Vishwajeet Kumar Singh who had recorded the fardbeyan of the informant as also prepared the inquest report, has caused serious prejudice to the defence, since it was he who could have explained the circumstances under which he was prompted to visit the place of occurrence and could have deposed about his observations made immediately on reaching the place of occurrence.
8. Mr. I.N. Gupta, learned Counsel appearing for the State on the other hand while supporting the impugned judgment of conviction, as recorded by the learned Trial Court, has controverted the entire arguments advanced by the appellant. Learned Counsel submits that out of several witnesses examined by the prosecution, the informant (PW3), his wife (PW6) and his sisters-in-law (PW4, PW5 and PW10), are eyewitness to the assault made by the appellant on the deceased and they being the members of the same family living together, their presence at the time and place of occurrence was natural. Learned Counsel adds that though each of the witnesses was subjected to lengthy cross-examination, but except for few minor contradictions, the defence has not elicited any such major contradiction which could discredit their testimony. Learned Counsel adds further that the fact that the deceased had suffered homicidal death and the place of occurrence has been adequately proved by the prosecution not only through testimonies of the eyewitnesses, but also by the evidence of the doctor (PW1) and the investigating officer (PW 12) and further support to the evidence of the witnesses is available from the seizure of the blood stained sickle from the place of occurrence. Learned Counsel explains that the prosecution has not suppressed any material information and the statement of PW3 read with that of PW7 that they had gone to the police station and had lodged information regarding the occurrence at the police station, has also not been suppressed, since station diary entry recorded at the police station on the basis of the information given, has been brought on record by way of evidence and marked as Ext.-9. Learned Counsel explains that though, information relating to the occurrence was recorded by way of the station diary entry, but the same was subject to verification and only after verification, could the case be registered and as such, the fardbeyan of the informant recorded at the place of occurrence was rightly taken as basis for registering the case. Learned Counsel adds further that even otherwise, there is no contradiction between the contents of the station diary entry and that of the fardbeyan in material particulars and even though, the case was registered on the basis of the fardbeyan, but preliminary investigation was already commenced by the police officer who visited the place of occurrence first in Page 2032 point of time and had seen the dead body of the deceased, prepared the inquest report and seized a blood stained weapon besides recording the statement of the informant and other witnesses present. Learned Counsel adds that even though witnesses, upon whose testimony the Trial Court had placed reliance, were close relations of the deceased and may be termed as interested witnesses, but merely because of this, their testimony cannot be brushed aside altogether.
9. Though not seriously disputed by the defence, the prosecution's evidence relating to the homicidal death of the deceased and relating to the place of occurrence may be taken note of.
Prosecution's case is that in the evening of 29.2.1996 the deceased Malti Devi had suffered multiple injuries on her body and as a result of which she had died. The evidence of the informant (PW3) and that of the daughters of the deceased (PW4, PW5 and PW10) besides the inquest report (Ext.-7) as also the evidence of the investigating officer (PW12) confirms that there were several marks of injuries found on the body of the deceased including injuries on palm, fingers and her neck and that she had died at the spot. The dead body of the deceased, as per the evidence of PW12, was forwarded after inquest, for postmortem examination to the hospital where PW1 Dr. Kulanand Choudhary had conducted autopsy and had recorded his observations in the postmortem report (Ext.-4). As per evidence of PW1, the autopsy was held on 1.3.1996 at the hospital on the dead body of the deceased Mostt. Malti Devi, wife of late Sangam Mahto of village Pipra, P.S. Pathargama. He has found following ante mortem injuries.
1. One incised wound over the right wrist and adjoining area of hand 5x4x3 cm.
2. Incised wound over right shoulder oval in shape 7x5 1/2 cm.
3. Incised wound over both the hands leading bifid hands on each (divided between middle and index finger) 6x4x4 cm
4. Incised wound over the neck at the level of thyroid cartilage from right side almost through and through (all the blood vessels and wind pipe severed away), blood clots present.
5. Incised wound just three centimeters above the injury No. IV 8x2x4 cm.
6. Several parallel incised wounds of superficial nature over the back of varying sizes.
Cause of death, in his opinion, was shock and hemorrhage as a result of above mentioned injuries leading to cardiac failure and death. He has further opined that time elapsed since death was about 18 hours. On reading the above evidences together, it offers ample proof that the deceased Malti Devi had suffered homicidal death on account of ante mortem injuries sustained by her. The nature of injuries as indicated in the evidence of the doctor (PW1) discloses that the injuries were grievous and could have resulted in instantaneous death.
Evidence relating to the place of occurrence is available from the statement of the informant (PW3) and other witnesses including the daughters of the deceased (PW4, PW5 and PW10) besides the evidence of PW2, PW8, PW11 and the evidence of PW12. The witnesses have claimed that the deceased was assaulted on the road in front of the house of the appellant within village Pipra under Pathargama police station. The witnesses have also testified that the dead body of the deceased was found lying in a pool of blood on the road in front of the house of the appellant and this fact has been observed by the police officer in the inquest report (Ext.-7) Page 2033 prepared by him. The witnesses have also affirmed that the earth was soaked with blood and a blood stained sickle was found by the side of the dead body. Evidence of the investigating officer (PW12) confirms that blood stained earth was seized by the police officer from the place where the dead body was found lying and the blood stained sickle was also seized from the same place. PW8 and PW11 have also Testified to the aforesaid facts. The evidence on this issue is clear and cogent and remains uncontroverted.
10. Referring now to the grounds advanced by the learned Counsel for the appellant, it has been strenuously argued that testimony of the informant (PW3) and his wife (PW6) as also that of other witnesses who are admittedly daughters of the deceased, cannot be accepted as eye witness account, since their very presence is rendered doubtful by the numerous contradictions appearing in the respective evidences. Shri Jai Prakash Jha, learned senior counsel has tried to explain that though these witnesses are close relations of the deceased, none of them have attempted to rescue the deceased which is apparent from the fact that none of them had sustained even a single scratch on their person and moreover, none of them have raised any alarms for inviting urgent intervention from the neighbouring residents. Learned Counsel argues that it should be considered as most unnatural conduct on the part of the witnesses to remain mute and silent spectator even while the lady was being assaulted in their presence. Learned Counsel explains further that on the evidence relating to the genesis of occurrence, witnesses are not consistent as because, some witnesses have claimed that the deceased was dragged from the wheat field to the place of occurrence, other witnesses do not say so. Learned Counsel has also tried to point out inconsistency in the manner of occurrence as described by the witnesses.
Argument of the learned Counsel for the appellant on this ground is not persuasive. On reading the evidence of the informant and that of PW5, PW6 and PW7, it would appear that at the time when assault was being made by the assailant on the deceased, these witnesses had attempted to intervene, but they were threatened by the assailant with the weapon in his hand forbidding them from coming near. It is in the cross-examination of the witnesses that the above explanation has been offered. In a given situation, it cannot be anticipated or assumed by way of any certainty or precision as to what should be the natural conduct of the witnesses in whose presence, the ghastly scene was being enacted. In the instant case, the witnesses had tried to intervene though they were deterred by the threats of the assailant. The conduct of the witnesses do not display any unnatural behaviour. Mere absence of any injury on their person does not lead to the conclusion that they had not made any attempt to interfere when the lady was being assaulted. It is to be noted that the informant (PW3) and his wife (PW6) and the daughters of the deceased (PW4, PW5 and PW10) being members of the same family, do reside in the same house and, therefore, their presence at the time and place of occurrence is natural. Description of the house of the informant vis-a-vis the place of occurrence as stated by the informant (PW3) and which finds corroboration from the description of the place of occurrence and its surroundings as given by the investigating officer (PW12) indicates that the place of occurrence was within visible distance from the house of the informant and there was possibility of the informant to see across the window of his house and to observe the presence of the deceased at her wheat field Page 2034 from the distance. Even in their respective cross-examination, these witnesses have affirmed that there was no intervening obstacle in between the house of the informant and the road beyond their house including the place of occurrence. The fact as elicited in the cross-examination of these witnesses that prior to approaching the deceased at her field, the appellant had visited the informant's house asking for the whereabouts of the deceased lady and on being informed that she was at her field, he had proceeded towards the field, suggests that these witnesses were awarded forehand that the appellant had gone to meet the deceased at her field and on their attention being so drawn, they had occasion to observe the return of the deceased along with the appellant from the wheat field to the place of occurrence and in the process, to see the entire occurrence from close quarters. True, it is that these witnesses are the close relations of the deceased and, therefore, may be termed as interested witnesses, but their presence at the time and place of occurrence and the circumstances in which they had occasion to see the occurrence and further, lack of any major and serious contradiction in their testimonies, do inspire credibility to their testimony. The evidence of these witnesses do inspire confidence and their testimony cannot be brushed aside merely because they happen to be interested witnesses. Furthermore, evidence of all these witnesses regarding the manner of occurrence, the weapon used in commission of the offence and the injuries sustained by the deceased as a result of the assault, find adequate corroboration from the evidence of the doctor and the postmortem report. The medical evidence is consistent with the ocular testimony of the witnesses. The seizure of the blood stained sickle from the place of occurrence where the dead body of the deceased was found lying, as confirmed by the seizure witnesses (PW2 and PW11), also lend corroboration to the evidence of the eyewitnesses.
11. Learned Counsel for the appellant has laid emphasis on the ground that there is no corroboration to the statements of the witnesses from any independent source. Learned Counsel contends that though PW4 and PW5 in their respective evidences have claimed that more than 50-100 persons had arrived at the place of occurrence, yet not a single co-villager has come forward to corroborate the statement of these witnesses regarding the identity of the assailant and the manner of assault on the deceased. Learned Counsel adds further that though prosecution has examined some co-villagers namely, PW2, PW8 and PW11, but they can be considered as formal witnesses because they have merely proved the inquest report and the seizure list and none of them have deposed on the point of occurrence. Referring in this context to the evidence of the informant and the other witnesses namely, PWs 4, 5, 6 and 10, it does not appear that any of them has claimed presence of any co-villager at the time of actual assault. Further, the evidence of PW4 when read in proper sequence, suggests that it was only after the assault was over and the assailant had filed away, that the co-villagers had arrived and the entire occurrence was narrated to them by the eyewitnesses. In this view of the matter, lack of corroboration to the testimony of eyewitnesses from any independent witness cannot be considered as posing any detriment to the prosecution's case.
12. Learned Counsel for the appellant has next challenged the legality of the fardbeyan claiming that the same could not be used as the first information report, since even according to the admitted case of the prosecution's witnesses, the same is hit under Section 162 Cr.PC.
Page 2035 From the evidence of the informant (PW3) and that of PW7, it would appear that soon after the occurrence, both these witnesses had proceeded to the police station where information was given to the police regarding the occurrence and the same was entered into station diary of the police. Prosecution has adduced the station diary entry as Ext.-9 in evidence. On perusal of the document, it appears that it contains a recording that on receipt of unconfirmed information regarding the murder of the deceased Malti Devi by her brother-in-law Jugal Mahto (appellant), a resident of the village Pipra, the police officer had felt it necessary to enter the said information in the police station diary and after entering the same, he proceeded to the village for inquiry. The evidence on record does also indicate that on arrival at the place of occurrence, the police officer namely, Vishwajeet Kumar Singh had found the information to be true. The informant being the nearest relation of the deceased was present at the spot and, therefore, his statement by way of his fardbeyan was recorded by the police officer. Thereafter, the same police officer prepared the inquest report pertaining to the dead body of the deceased and also prepared the seizure list pertaining to the blood stained sickle seized by him in presence of the witnesses. It appears therefore that on reading the police station diary entry and comparing the same with the fardbeyan of the informant, there is consistency both on the fact of the murder of the deceased and also on the identity of the assailant. The conduct of the police officer on his omission to treat the information received as the first information report, cannot be deemed faulty. Before registering the case for any cognizable offence, the police officer is entitled to ascertain the truth in the information received by him by conducting an inquiry and on finding the information to be prima facie true, he can proceed with registering the case relating to the offence on the basis of detailed information when given to him. In the above circumstances, non-registration of the case on the basis of the police station diary and treating the fardbeyan of the informant as the basis for registering the case, does not suffer from procedural illegality. While considering a similar question relating to a case registered for the offence under the provisions of Prevention of Corruption Act, the Apex Court in its recent judgment in the case of Shashi Kant v. C.B.I. reported in 2007(1) SCC 630, has observed " although ordinarily in terms of Section 154 of the Code (of Criminal Procedure) when a report is received relating to a cognizable offence, a first information report should be lodged, to carry out a preliminary inquiry even under the code is not unknown". One of the judges of the Supreme Court in an earlier case - State of U.P. v. Bhagwant Kishore Joshi has observed that "in the absence of any prohibition in the Code (of Criminal Procedure) express or implied, I am of the opinion that it is open to the police officer to make preliminary inquiry before registering an offence and making a full-scale investigation into it".
The issue raised by the appellant in the instant case would have assumed significance if there was any material contradiction in the information recorded as Station Diary Entry and the statements recorded as the fardbeyan relating to the murder of the deceased and the identity of the assailant. The ground advanced by the learned Counsel for the appellant on this issue is, therefore, not persuasive enough to discard the fardbeyan as being not acceptable in evidence. From the evidence of the investigating officer (PW12), it would appear that the information regarding the occurrence was received at the police station by another police officer present at that time who had proceeded to the place of occurrence after registering the station Page 2036 diary entry and was present at the place of occurrence much before the arrival of PW12 at the place of occurrence. PW12 has also affirmed that the police officer namely Vishwajeet Kumar Singh who had arrived earlier at the place of occurrence, had recorded the fardbeyan of the informant and prepared the inquest report and the seizure list. This fact has been confirmed also by the witnesses who had witnessed the inquest and the seizure of the articles found at the place of occurrence. The non-examination of the said police officer namely, Vishwajeet Kumar Singh does not cause any prejudice to the defence since the circumstance under which he had arrived at the place of occurrence, has been amply explained by the station diary (Ext.-9)
13. On perusal of the impugned judgment of the Trial Court, we find that the learned Trial Court has carefully discussed the evidences on record and has assigned adequate reasons for placing reliance on the testimonies of the informant and other material witnesses and accepting their testimonies as eyewitness account and for recording its finding of guilt against the appellant. We do not find any reason to interfere with the findings of the learned Trial Court.
14. In the light of the above discussion, we do not find any merit in this appeal. Accordingly, the same dismissed. The impugned judgment of conviction and sentence, as imposed by the Trial Court against the appellant, is hereby confirmed.