Jharkhand High Court
Ramjee Hembrom vs The State Of Jharkhand on 18 March, 2024
Author: Ananda Sen
Bench: Ananda Sen, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.479 of 2015
(Against the Judgment of conviction dated 1st June, 2015 and Order of sentence
dated 10th June, 2015, passed by the Sessions Judge, Godda in Sessions Trial
No.290 of 2012)
1. Ramjee Hembrom
2. Bihari Hembrom .... Appellants
Versus
The State of Jharkhand ..... Respondent
CORAM : SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
.....
For the Appellants : Mr. Ranjit Kumar Tiwari, Advocate For the State : Mr. Pankaj Kumar Mishra, A.P.P. .....
C.A.V. on 04.03.2024 Pronounced on 18.03.2024 Per Subhash Chand, J.:- Heard learned counsel for the appellants and learned counsel for the State.
2. The instant criminal appeal is preferred on behalf of the appellants against the impugned Judgment of conviction dated 1st June, 2015 and Order of sentence dated 10th June, 2015 passed by the Sessions Judge, Godda in Sessions Trial No.290 of 2012, whereby, the appellants have been convicted for the offence under Sections 302/34 and 201/34 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence under Section 302/34 of the I.P.C. and one year rigorous imprisonment for the offence under Section 201/34 of the I.P.C. along with fine of Rs.5,000/- each and in default of payment of fine, the appellants were directed to undergo simple imprisonment for three months. Both the sentences were directed to run concurrently.
3. The brief facts giving rise to this criminal appeal are that the informant--Priya Tudu had given the written information with the -2- Cr. Appeal (DB) No.479 of 2015 police station concerned with these allegations that the informant wife of Binod Hembram resides along with her mother-in-law Most. Marangmai Soren, Bhaisur--Raj Kumar Hembram and sister-in-law Bhiru Tudu. It is further stated that her sister-in-law and Bhaisur both were not at the house and her mother-in-law Marangmai Soren was at the house. The family of her father-in-law Ramji Hembram along with Bihari Hembram also resides there and courtyard of both the house is one and same and main door opens thereon. It is further alleged that on 31st July, 2012 at 1.30 o' clock of day time she had gone to sow the paddy and her husband was alone at the house. When at 5 o' clock the informant came back to the house, she saw that her father-in-law Ramji Hembram and Bihari Hembram both were dragging her husband Binod Hembram into the house. She reached in the courtyard and found her husband lying in pool of blood who ultimately died. Thereafter her father-in-law Ramji Hembram and Bihari Hembram fled away. One Tala Murmu of the village told her that at the time of occurrence, he was sleeping on the cot in front of door of Ganesh Marandi and had seen Ramji Hembram and Bihari Hembram armed with Lathi, kudal and the tangi and they had assaulted to Binod Hembram over the head. He also came to rescue but both fled away after having committed murder of Binod Hembram. He had also snatched away one tangi from Ramji Hembram, thereafter, both had dragged Binod Hembram and took him inside the house.
-3-Cr. Appeal (DB) No.479 of 2015
4. On this written information, the Case Crime No. 112 of 2012 was registered with the police station Pathargama District Godda under Sections 302/201/34 of the Indian Penal Code against Ramji Hembram and Bihari Hembram. The Investigating Officer concluded the investigation and filed charge-sheet against both the said accused persons for the offence under Sections 302/201/34 of the I.P.C.
5. The learned court of Magistrate took cognizance on the charge-sheet and the offence alleged being triable by the Court of Sessions, the case was committed for trial to the court of learned Sessions Judge, Godda.
6. The court of Sessions Judge, Godda framed charge against the accused Ramji Hembram and Bihari Hembram under Sections 302/201/34 of the I.P.C. The charge was read over and explained to both the accused, who denied the charge and claimed for trial.
7. On behalf of the prosecution to prove the charge against the accused persons in oral evidence examined P.W.1-Naresh Hembram, P.W.2- Prakash Kisku, P.W.3-Shiv Charan Baski, P.W.4-Tala Murmu, P.W.5- Dr. Kulanand Choudhary, P.W.6-Sushil Hansda, P.W.7-Raj Kumar Hembram, P.W.8-Nawal Kishore Soren, P.W.9-Mitu Soren, P.W.-10 Marangmai Soren, P.W.-11 Arun Kumar Pandey (the I.O. of the case), P.W.-12 Priya Tuddu (the informant) and P.W.-13 Bhola Nath Bhagat.
8. On behalf of the prosecution in documentary evidence adduced Ext.1 signature of Naresh Hembram on the seizure list, Ext.2 postmortem -4- Cr. Appeal (DB) No.479 of 2015 report, Ext.3 inquest report, Ext.1/1 seizure list, Ext.3/1 signature on carbon copy of inquest report, Ext.4 order for postmortem, Ext.5 fard beyan, Ext.6 formal F.I.R., Ext.5/1 endorsement on the fard beyan and Ext.7 application of Officer-in-Charge dated 9th February, 2015.
9. The material Ext.I is an axe with its handle and Ext.II spade with its handle.
10. The statement of the accused persons under Section 313 of the Cr.P.C. were also recorded, wherein they denied the incriminating circumstances against them and stated that they have been falsely implicated in this case on account of family dispute. No defense evidence was adduced on behalf of the accused persons.
11. The trial court after hearing the learned counsel for the parties passed the impugned judgment of conviction dated 1st June, 2015, convicting the appellants for the offence under Sections 302/201/34 of the I.P.C. and sentenced accordingly.
12. The aforesaid convicts/appellants being aggrieved with the impugned judgment of conviction dated 1st June, 2015 and order of sentence dated 10th June, 2015 preferred the present criminal appeal.
13. We have heard learned counsel for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record.
14. In order to decide the legality and propriety of the impugned judgment of conviction and order of sentence passed by the learned trial court, we would like to re-appreciate the evidence on record, which are reproduced herein below :
-5-Cr. Appeal (DB) No.479 of 2015
15. As per prosecution case the star witness of the occurrence are Priya Tuddu (P.W.-12) and Tala Murmu (P.W.-4), who are alleged to be the eye-witness of the occurrence.
15.1 P.W.-4 Tala Murmu in his examination-in-chief says that the occurrence was of two years ago and it was 5.30 of evening, he was sleeping in the courtyard of Ganesh on the cot. He heard the screaming of Binod and upon hearing the same, he reached to the house of Binod and saw Ramji and Bihari were assaulting him with spade, tangi and a small wand(danda). The tangi was hit on the forehead of Binod Hembram which was assaulted by Ramji. He made attempt to rescue him but both the accused persons dragged Binod Hembram inside the house, thereafter, wife of Binod also came there. Binod Hembram had died when his wife reached there. All the accused persons have also fled away. The witness again says that when the wife of Binod was there, the accused persons had fled away leaving kudal and danda at the place of occurrence. He is not aware why this occurrence was caused.
In cross-examination, this witness says that Binod Hembram was his uncle. He was sleeping in courtyard of house of Ganesh. He is not aware whether there was Ganesh or not. There are about 6 to 7 houses in between house of Ganesh and Binod. After five minutes of occurrence, he reached at the place of occurrence and at that time there was no person of the village. First of all, he reached there and who reached thereafter he is not aware. This suggestion was also given to this witness that he and Binod both drunk wine and also -6- Cr. Appeal (DB) No.479 of 2015 assaulted to each other, whereby Binod sustained injury. This suggestion was denied by this witness.
15.2 P.W.-12 Priya Tuddu in her examination-in-chief says that the occurrence is of more than two years ago and it was 5 o' clock of evening. When she was coming to her house from Vahiyar and saw that her husband was being dragged by Bihari and Ramji inside the house. Her husband was lying in pool of blood. The cut injury on the forehead and her husband was half dead. She wept, thereupon, Munsi Soren, Tala Murmu and other persons attracted there. Her husband died after two minutes she had come. She had not talked with Tala Murmu. She identified both the accused persons, namely, Ramji Hembram and Bihari Hembram in the dock.
In cross-examination, this witness says that Bihari Hembram and Ramji Hemram both are her father-in-law. She had gone to sow the paddy crop in the agricultural field which was nearby her house. She had been sowing paddy alone. Her husband Bihari Hembram has left the agricultural field at 1.30 o' clock of day time. Her husband did not drink wine. It is wrong to say that Bihari Hembram and Tala Murmu both had drunk wine and also fought each other and her husband sustained injury on account of falling down on the ground and subsequently succumbed to injuries. Ramji Hembram and Bihari Hembram both have also criminally intimidated her. The courtyard of her house and Bihari and Ramji Hembram is one and same. The opening door is also one and same.
-7-Cr. Appeal (DB) No.479 of 2015 15.3 P.W.-10 Marangmai Soren is the wife of late Talwa Hembram and mother-in-law of informant and mother of the deceased Binod Hembram. This witness in her examination-in-chief says that Binod Hembram was her son. The occurrence had taken place two years ago and it was 5 o' clock of evening, Priya Tuddu and Tala Murmu both had informed over the phone that Bihari Hembram and Ramji Hembram both had murdered Binod Hembram with axe and spade. Binod Hembram was adopted by Ramji Hembram and one year had not passed the adoption of Binod was denied by Ramji. When she reached there Binod had died.
In cross-examination, this witness says that at 6 o' clock, after having received the information, she reached at the house. There is common courtyard of her, Ramji Hembram and Bihari Hembram. Ramji and Bihari both were coming out of the house, at that time there were so many persons in the courtyard. Her son was lying in pool of blood. She talked only with Priya and Tala, thereafter, police came there. It is wrong to say that her son and Tala Murmu had drunk wine and on account of sustaining injury her son Binod Hembram had died. She also denied the suggestion that the accused persons were implicated in this case, since, the adoption of her son Binod Hembram was denied by the accused Ramji Hembram. 15.4 On behalf of the prosecution to prove the inquest report of the deceased examined Nawal Kishore Soren (P.W.-8) and Sushil Hansda (P.W.-6).
-8-Cr. Appeal (DB) No.479 of 2015 15.5 P.W.-6 Sushil Hansda identified his signature on the inquest report which was marked Ext.3. He further stated that this occurrence was of 31st July, 2012 and time was 4 o' clock of evening. Binod Hembram was murdered by Bihari Hembram and Ramji Hembram. He had reached at the place of occurrence after having received information over the phone and came to know from the persons at the spot in regard to murder of Binod Hembram. He put his signature on the inquest report after having perused the same and what was written therein, he does not recollect. He put signature on the inquest report at the behest of the police.
15.6. P.W.-8 Nawal Kishore Soren is also the witness of the inquest report of the deceased Binod Hembram. He also says that he had come to know in regard to the occurrence. On being asked, Priya Tuddu and Tala Murmu had told that Ramji Hembram and Bihari Hembram had assaulted Binod with axe and spade, whereby he died. 15.7 On behalf of the prosecution to prove the postmortem report of the deceased Binod Hembram examined P.W.-5 Dr. Kulanand Choudhary. This witness in his examination-in-chief says that on 1st August, 2012 he was posted as Medical Officer, Sadar Hospital, Godda and on that very day he had conducted the postmortem of the deceased Binod Hembram at 9.45 a.m. and found following injuries:-
i. Lacerated wound over left forehead 4 x 2 x 2 cm. ii. Lacerated wound over outer canthus of left eye 2 x 2 x 2 cm. iii. Lacerated wound on left ear involving pinna 4 x 1.5 x 1 cm. iv.One incised wound on scalp posteriorly near occiput on right side 4 x 2 x 2.5 cm.-9- Cr. Appeal (DB) No.479 of 2015
v. Incised wound over left temple 3 x 3 x 1.5 cm.
vi. One abrasion on left chin 1 x 1 cm.
Time since death- About 18 hours.
Cause of death-In my opinion was due to shock and hemorrhage as a result of aforesaid injuries leading to C.R. failure and finally death.
P.W.-5 has also stated that this postmortem report is in his handwriting and signature which was marked Ext.2.
In cross-examination, this witness says that he found no sign in the body of the deceased that he had consumed wine prior to his death. No evidence of consumption of wine has been found.
15.8 On behalf of the prosecution to prove the seizure memo of blood-
stained spade, bamboo wand and tangi examined Naresh Hembram P.W.-1 and Arun Kumar Pandey (the I.O.), P.W.-11 15.9 P.W.-1 Naresh Hembram has turned hostile and he identified his signature on the seizure memo which was marked Ext.1 but stated that from where these articles were recovered, he is not aware. Binod Hembram was murdered by whom he is not aware.
In cross-examination, this witness says that he had put his signature on the seizure memo in fear of police. 15.10 P.W. 11 Arun Kumar Pandey, the Investigating Officer in his examination-in-chief says that on 31st July, 2012 he was Station Officer of Pathargama and had recorded the fard beyan of Priya Tuddu and took over the investigation of this case. He recorded restatement of the informant, statement of Marangmai Soren, Tala Murmu, Nawal Kishore Soren, Prakash Kisku and also inspected the place of occurrence. At the place of occurrence, he found the dead
- 10 -
Cr. Appeal (DB) No.479 of 2015body of Binod Hembram which was lying in the courtyard of the house and there was also stain of blood of dragging the deceased in injured condition. He also prepared the site plan at place of occurrence. He also recovered the spade bearing wooden handle and small bamboo wand which were blood stained. He also recovered tangi having two and half feet wooden handle and seizure memo of the same was also prepared. The seizure memo is in his handwriting and signature. The signature of Naresh Hembram and Baleshwar Manjhi were also taken on the seizure memo. The signature of both the accused was taken on the seizure memo and copy of the same was given to them which was marked Ext.1/1. He also prepared the inquest report of the deceased and received his postmortem report. He recorded the statement of witness Raj Kumar Hembram, Naresh Hembram, Sushil Hansda, Shiv Charan Baski and charge-sheet was also filed against both the accused. The wife of Binod Hembram and Tala Murmu of the village both had told him that Ramji Hembram and Bihari Hembram had assaulted to Binod Hembram and dragged him to the courtyard and it was seen by them. The witness Naresh Hembram had voluntarily put his signature and no fear was created by him. The mother and wife of the deceased and Tala Murmu had told that Ramji Hembram and Bihari Hembram both had committed murder of Binod on account of domestic dispute by assaulting with spade, axe and danda as well. The witness Mitu Soren had told him that upon hearing hue and cry, Tala Murmu who was sleeping at his door awoke and Tala Murmu had seen Ramji Hembram and Bihari
- 11 -
Cr. Appeal (DB) No.479 of 2015Hembram assaulting with axe and spade to Binod Hembram and both took him inside the room after having dragged him. The inquest report is in his handwriting and signature which was marked Ext.3/1. The fard beyan of the informant Priya Tuddu is in his handwriting and Priya Tuddu has put his thumb impression thereon and the witness Nawal Kishore has also put his signature thereon which was marked Ext.5. The formal F.I.R. was also registered which is in handwriting of Pankaj Kumar Ranjan. The said F.I.R. also bears his signature which was marked Ext.6. On the fard beyan his signature is also thereon which is marked Ext.5/1.
In cross-examination, this witness says that from the place of occurrence, he did not take in his possession the blood-stained soil. Blood stained lathi and kudal was seized and the same were not sent to Forensic Science Laboratory for examination. On the seizure memo, the thumb impression of accused Ramji Hembram was taken. The witness Tala Murmu had not stated him that he and Binod both had drunk wine on the date of occurrence.
15.11 P.W.-13 Bhola Nath Bhagat in his examination-in-chief says that material exhibit related to Case Crime No.112 of 2012 which has been brought by him was marked Ext.I. He further stated that it is spade on which M.R. No.12/12 was registered which is marked Ext.II. He also stated that two bamboo wands have been destroyed during maintenance of Malkhana. The G.D. entry of the same is at No.11 dated 20th January, 2015. This letter is in the writing and signature of the Station In-charge Satendra Prasad which he
- 12 -
Cr. Appeal (DB) No.479 of 2015identified and marked Ext.7. He has no personal knowledge of this case.
In cross-examination, this witness says the material exhibit which is rapped in paper was not rapped in his presence. The Station Officer- in-Charge had handed over him this material exhibit which he had brought in the court. He is not In-charge of Malkhana. The material exhibits were not recovered in his presence.
16. The learned counsel for the appellant has submitted that the F.I.R. of this case was lodged belated which casts doubt on the prosecution story.
16.1 This submission made by the learned counsel for the appellant is not found sustainable reason being that the occurrence is of 31st July, 2012 and the F.I.R. was lodged on 1st August, 2012 at 2:00 hours. The distance from the place of occurrence and the police station is five kilometers, whatever delay in lodging the F.I.R. is, the same is also being explained by the informant. The informant had stated that both the accused had criminally intimidated her, as such, on account of criminal intimidation the delay is caused in lodging the F.I.R. The delay caused is well explained and is not found fatal to the prosecution case.
17. The learned counsel for the appellant has also submitted that as per prosecution case there are two eyewitnesses of the occurrence i.e., P.W.-12 Priya Tuddu and P.W.-4 Tala Murmu. From the testimony of these witnesses, it is found that they are not the eyewitness and the occurrence was not seen by them. So far as other witnesses are
- 13 -
Cr. Appeal (DB) No.479 of 2015concerned, all have come to know in regard to the occurrence from these two witnesses, therefore, the prosecution case is not proved and the conviction and sentence held by the learned trial court relying upon the testimony of both these witnesses is based on perverse and erroneous finding.
17.1 Certainly, the prosecution case is based on testimony of two witnesses, i.e., informant, P.W.-12 Priya Tuddu and P.W.-4 Tala Murmu.
17.2 P.W.-12 Priya Tuddu in her testimony has stated that when she reached to the house after having planted the paddy in the agricultural field, she saw that her husband was being dragged inside the house by Bihari Hembram and Ramji Hembram. She also saw that her husband was lying in pool of blood. The injury was on his forehead, the ear was also cut and her husband was half dead. When she wept and cried, Munsi Soren, Tala Murmu and other person had come there. In cross-examination, on behalf of the accused persons, this statement given by this witness was not shaken in regard to the occurrence being witnessed by her. The only suggestion which is given to this witness on behalf of the defense that the deceased had drunk wine with Tala Murmu and both had scuffled and on account of falling down on the ground Binod Hembram had sustained injury and succumbed to injuries.
17.3 P.W.-4 Tala Murmu in his examination-in-chief says that after hearing the cry of Binod on the date and time of occurrence, he awoke as he was sleeping at the courtyard of Ganesh Marandi and
- 14 -
Cr. Appeal (DB) No.479 of 2015reached to the house of Binod and saw Ramji and Bihari were assaulting Binod with Kudal, tangi and a small danda. Binod had sustained injury on the forehead caused by tangi. He also came to rescue to Binod but the accused persons had dragged him inside the house. Priya Tuddu had also come there. In cross-examination, this witness says that after five minutes of the occurrence, he reached at the place of occurrence. When he reached there at that time no one was there. He also says that in between the house of Ganesh and Binod there are 6 to 7 houses. This suggestion was also given to this witness that he had drunk wine along with Binod Hembram and both had quarreled and scuffled, whereby Binod sustained injuries and died. This suggestion was denied by this witness. 17.4 Certainly P.W.-12 Priya Tuddu has not seen the accused persons assaulting her husband Binod Hembram; but she had seen both the accused Bihari and Ramji dragging her husband in injured condition inside the house and also seen her husband lying in pool of blood half dead, who had sustained multiple injuries. The testimony of this witness P.W.-12 Priya Tuddu found cogent and trustworthy and the same is also corroborated with the statement of Tala Murmu, P.W.-4, though he had not seen the occurrence but he also reached to the place of occurrence after having heard the cry of the deceased Binod Hembram and seen both the accused persons dragging the injured Binod Hembram inside the house.
- 15 -
Cr. Appeal (DB) No.479 of 201517.5 The ocular evidence of P.W.-12 Priya Tuddu is also corroborated with the medical evidence. The postmortem report of the deceased is proved as Ext.2 by P.W.-5 Dr. Kulanand Choudhary who has found six ante mortem injuries on the body of the deceased. The ante mortem injuries shows that lacerated wounds and incised wounds were caused to the deceased by sharp edged weapon and blunt object.
17.6 As per ocular evidence, the accused persons were armed with axe, spade and bamboo wand. All the three weapons were found blood stained from the place of occurrence. The seizure memo of the blood-stained spade, tangi and bamboo spade is Ext.1 which is also proved by P.W.-11 Arun Kumar Pandey, the I.O. Though witness Naresh Hembram (P.W.-1) has turned hostile yet he had admitted his signature on the seizure memo (Ext.1). No contrary conclusion could be drawn in cross-examination from P.W.- 11 Arun Kumar Pandey on behalf of the defense.
17.7 The blood-stained spade is also proved as material Ext.1 by P.W.-13 Bhola Nath Bhagat. The blood-stained tangi and spade both are material Ext.I and II have been proved by him by producing them in his examination before the trial court and he has stated that these two were handed over to him from Malkhana by the order of the Station Officer. The blood-stained bamboo wands have been destroyed and to this effect, the G.D. entry was also made at No.11 on 20th January, 2015 and a letter was also issued by the Station
- 16 -
Cr. Appeal (DB) No.479 of 2015Officer-in-Charge Satendra Prasad in handwriting and signature which he identifies and marked Ext.7.
18. Though witness Marangmai Soren (P.W.-10) had not seen the accused persons assaulting deceased or dragging deceased in injured condition, yet she had come to know in regard to the occurrence from eyewitness P.W.-12 Priya Tuddu and P.W.-4 Tala Murmu. Therefore, her testimony also becomes admissible under Section 60 of the Indian Evidence Act as corroborative evidence.
18.1 The Hon'ble Apex Court in the case of Mukhtiar Singh and Anr vs State of Punjab reported in AIR 2009 SC 1854 at paragraph 8 has held as under :-
"8. PW-5 has clearly stated in his statement that no telephone was installed at the Railway Station, Kahangarh but there was a telephone installed at the Railway Control Room at the Railway Station which, however, was found to be out of order. He also stated that he had gone to GRP Police Post at Budhlada from where he sent a message to the Control Room at Bathinda on telephone about the occurrence. The aforesaid statement clearly explains the delay in sending the information and also explained as to why detailed information regarding all materials leading to the occurrence was not mentioned by him. He cannot be called in any manner an interested witness; in fact he was a most dis-interested witness. Nothing has been brought on record to show that he is inimical to the accused persons. He has specifically stated in his depositions that he saw the aforesaid accused running towards the village side carrying weapons. His presence at the spot cannot be doubted as it is established that he was at duty at the Railway Police Post, Kahangarh, which is the place of occurrence. He has also stated in his depositions that he had in fact chased the two accused persons up to a certain distance but could not manage to nab them and that when he returned to the scene of occurrence, Surjit Kaur, PW-3, disclosed to him about the occurrence. This shows that he did not see the accused persons attacking the deceased but learnt about the same from an eye witness and the said information about the dead body lying at the platform was flashed by him, for he knew that on receipt of the aforesaid information the police should start investigation and during that course police would definitely ask eye witnesses and get all the information from them. In any case, his information would be hearsay evidence, but as the same corroborates the substantive evidence of PW. 2 and PW. 3 the same would be admissible, as was held in the case of Pawan Kumar v. State of Haryana, (2003) 11 SCC 241, wherein it was observed that evidence
- 17 -Cr. Appeal (DB) No.479 of 2015
of such nature could be used to corroborate the substantive evidence. However, in that case, as there was no substantive evidence the benefit of said evidence was not granted.
19. The testimony of eyewitness P.W.-12 Priya Tuddu is also corroborated with the testimony of P.W.-11 Arun Kumar Pandey (the I.O.). The I.O. has stated that he had recorded the statement of Priya Tuddu and Tala Murmu. He had also stated that he had recorded the fard beyan of Priya Tuddu on which her thumb impression and signature of Nawal Kishore Soren were there. He has proved the fard beyan on which exhibit has already been put as Ext.5 by the informant Priya Tuddu herself and signature thereon was also proved as Ext.5/1 by the I.O. P.W.-11 has also stated that Priya Tuddu has stated to him she (wife of Binod Hembram) and Tala Murmu both had seen the accused persons assaulting Binod Hembram and dragging him inside the house. This witness had also seen the mark of blood of dragging at the spot nearby the place from whereby the body was dragged up to the courtyard of the deceased.
20. Learned counsel for the appellant has submitted that the testimony of P.W.-12 Priya Tuddu cannot be relied because she is interested witness.
20.1 This submission is not sustainable because the testimony of P.W.-12 Priya Tuddu inspires confidence of the Court in regard to its veracity. Her testimony is not shaken in cross-examination by the defense counsel.
20.2 The Hon'ble Apex court in the case of Ashok Kumar Chaudhary and Ors. vs State of Bihar reported in AIR 2008 SC 2436 at paragraph 7 has held as under :-
- 18 -Cr. Appeal (DB) No.479 of 2015
"7.We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17th July, 1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence. In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled that though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/ she cannot be characterized as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive."
20.3 The Hon'ble Apex Court in the case of Ravishwar Manjhi and Ors vs State of Jharkhand reported in AIR 2009 SC 1262 at paragraph 24 has held as under :-
"24.Out of seven eye-witnesses, P.W. 7 was not believed by the courts below. P.Ws. 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eye-witnesses were related to the deceased. However, we do not hesitate to add that only on that ground their evidences should not be disbelieved.
Furthermore, there was no enmity between the parties. Only a case under Section 107 of the Code of Criminal Procedure was pending against them. Even in respect thereof, no documentary evidence was brought on record to show as to when the said proceeding was initiated and at whose instance. The prosecution witnesses merely supported the prosecution case that a death had taken place and two witnesses suffered grievous injuries but it was absolutely necessary in the facts and circumstances of this case to show that the accused were the aggressors. It was for that reason the genesis of the prosecution case must be held to have grave significance."
21. This plea is also taken on behalf of the appellant that the alleged blood-stained spade, axe and bamboo want were not sent to the SFSL for confirmation whether blood on the same is matched with the blood group of the deceased or not, as such, the prosecution case becomes doubtful.
- 19 -
Cr. Appeal (DB) No.479 of 201521.1 Certainly, the blood-stained weapons which were recovered nearby the body of the deceased were not sent to the SFSL as admitted to P.W.-11 Arun Kumar Pandey (the I.O.); but the prosecution case which is based on ocular evidence and in not sending the blood-stained weapons to the SFSL for examination cannot be fatal to the prosecution case which is based on the ocular evidence.
21.2 The Hon'ble Apex Court in the case of Mano v. State of T.N. reported in (2007) 13 SCC 795 at paragraph 16 has held as under:-
"16. Even if the recovery of the weapons as claimed was after a long period and those were not sent for forensic examination that does not in any way dilute the evidentiary value of the prosecution version."
21.3 The Hon'ble Apex Court in the case of State of Punjab v. Hakam Singh reported in (2005) 7 SCC 408 at paragraph 13 has held as under :
"13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident."
22. On behalf of the appellants this plea has also been raised that there was enmity between the deceased and the accused persons on the ground that the accused Ramji Hembram, who had adopted the deceased Binod and subsequently denied the adoption and on account of this enmity he has been falsely implicated in this case.
- 20 -
Cr. Appeal (DB) No.479 of 201522.1 The enmity between the parties is a double edged weapon. The possibility of commission of offence is also the same, as that of false implication.
22.2 The Hon'ble Apex Court in the case of State of Maharashtra vs Tulshiram Bhanudas Kamble and Ors reported in AIR 2007 SC 3042 at paragraphs 29 and 33 has held as under :-
"29.Each of the reasoning assigned by the High Court, in our opinion, is contrary to the well-settled legal principle. The witnesses examined on behalf of the prosecution, apart from being eye-witnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidences. Although in accepting the same, some amount of caution is required to be maintained.
33.As regards enmity, it is well known that enmity is a double edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication."
23. This plea is also raised on behalf of the learned counsel for the appellants that the deceased had drunk wine along with P.W.-4 Tala Murmu and both had scuffled and during fight Binod Hembram (the deceased) had sustained injuries and on account of falling on the ground.
23.1 This plea is belied from the testimony of P.W.-5 Dr. Kulanand Choudhary who has stated that during postmortem he found no evidence of consumption of wine by the deceased.
24. After critical appraisal of the prosecution evidence available on record, we are of the considered opinion that the prosecution has been successful to prove the case against the convicts/appellants beyond reasonable doubt and the impugned judgment of conviction
- 21 -
Cr. Appeal (DB) No.479 of 2015and sentence passed by the learned trial court requires no interference by this Court.
25. Accordingly, this appeal is dismissed and the impugned judgment of conviction dated 1st June, 2015 and order of sentence dated 10th June, 2015 passed by the learned Sessions Judge Godda in S.T. Case No.290 of 2012 is, hereby, affirmed.
26. The appellants are already in jail and they are directed serve out the rest of the sentence. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment.
27. Pending interlocutory applications shall also stand disposed of.
(Subhash Chand, J.) Per Ananda Sen, J. : I Agree (Ananda Sen, J.) Jharkhand High Court, Ranchi Dated, the 18th March, 2024.
Rohit Pandey/A.F.R