Jharkhand High Court
Sukhu Sardar @ Suku Sardar vs The State Of Jharkhand on 18 October, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Criminal Appeal (D.B.) No. 832 of 2017
[Against the judgment of conviction dated 13.06.2016 and order of
sentence dated 15.06.2016 passed by Sri Pradeep Kumar Srivastava,
learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial
No. 192 of 2009]
...........
Sukhu Sardar @ Suku Sardar, S/o Chamu Singh Sardar, R/o Village- Kerabir, P.O.- Sonua, P.S.- Sonua, District- West Singhbhum ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........
For the Appellant : Mr. Arun Kumar, Advocate
For the State : Mr. Saket Kumar, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........
C.A.V. on 19/07/2022 Pronounced on 18/10/2022 Heard Mr. Arun Kumar, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. for the State.
2. This appeal is directed against the judgment of conviction dated 13.06.2016 and order of sentence dated 15.06.2016 passed by Sri Pradeep Kumar Srivastava, learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 192 of 2009, whereby and whereunder the appellant has been convicted for the offence punishable u/s 302 of the IPC and has been sentenced to undergo imprisonment for life along with a fine of Rs. 10,000/- and in default in payment of fine to further undergo R.I. for one year.
3. The fardbeyan of Singrai Bodra was recorded on 27.05.2009 to the effect that on 26.05.2009 his elder brother Fagu Bodra had gone to village Kerabir to watch Ashari Mela and Chhau dance and at 3:00 P.M, information was received that Fagu Bodra has been murdered. At this information, he left for village Kerabir alone and reached there at 5:00 P.M. On reaching village Kerabir he saw his brother lying on the ground at a distance of 100 yards from the house of the village Munda Chamu Sardar. His brother was found to be dead. He returned back home and on the next day he went to village Kerabir with his sister-in-law and 20-25 persons. The Police officials on getting such information had reached the place of occurrence at
-2- Cr. Appeal (D.B.) No. 832 of 2017 1:00 P.M. It has been alleged that today i.e. on 27.05.2009 information was received from the village Munda and other villagers that Fagu Bodra has been murdered by Sukhu Sardar (appellant) and Kande Hembrom. It has been alleged that about one month back a quarrel had taken place between his deceased brother and the suspected persons. He does not know the reason for the quarrel.
Based on the aforesaid allegations Sonua P.S. Case No. 17/2009 was instituted against Sukhu Sardar and Kande Hembrom for the offence punishable u/s 302 of the I.P.C. On completion of investigation charge-sheet was submitted against both the accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 192 of 2009. Charge was framed against Sukhu Sardar for the offence punishable u/s 302 of the I.P.C. which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. The trial against the accused Kande Hembrom was dropped since he had died.
4. The prosecution has examined as many as ten witnesses in support of its case.
5. P.W.1 (Chamu Singh Sardar) has deposed that he knew Fagu Bodra who was murdered about 1½ years back. Sukhu Sardar and Kande Hembrom had committed his murder with Lathi. He has stated that the incident had taken place during the Chhau dance organized at Kerabir village. He had also participated in the dance. The murder was committed by both the accused in a place adjoining the place where the Chhau dance was being performed. Both had confessed before the villagers and the Police of committing the murder of Fagu Bodra. None had disclosed the reason for the murder.
In cross-examination, he has deposed that several persons were dancing with him. Fagu was murdered just besides the place where they were dancing. There was a huge crowd
-3- Cr. Appeal (D.B.) No. 832 of 2017 present at the place of occurrence. On being questioned as to whether he could not see the assault due to the crowd he had answered in the affirmative.
6. P.W.2 (Singrai Bodra) has deposed that Fagu Bodra was his elder brother who had been murdered about 1½ years back at village Kerabir. The murder was informed by the village Chaukidar and the Munda. He had gone to see the dead body at Kerabir village along with other villagers. The Munda of Kerabir village had disclosed that the murder was committed by Sukhu Sardar and Kande Hembrom.
In cross-examination, he has deposed that Kerabir village is at a distance of 4 kilometer from his village. He has admitted that he had not witnessed the occurrence.
7. P.W.3 (Shyam Bodra) has stated that the incident is of 25.05.2009 and it was mid-noon and Chhau dance was going on in the village. He was also present when he had seen Sukhu Sardar and Kande Hembrom assaulting Fagu Bodra with Danda. Fagu Bodra had injuries on his neck, head and chest. He and the others had brought the injured Fagu Bodra besides a Jack fruit tree. In absence of a vehicle the injured could not be taken to the Hospital. On the next day the Police had come. An inquest report was prepared which was also signed by him.
In cross-examination, he has deposed that the assault had taken place between 12:00-01:00 P.M. at a distance of 50 yards from the place where Chhau dance was being performed. There were several persons present at the place of occurrence including the village Munda Chamu Singh Sardar, Daso Sardar, Soma Sardar, Sundar Sardar and Motai Koda. The persons who were dancing had made a circle and he had seen the assault while the dance performance was going on. He has stated that Sukhu Sardar had assaulted about 3-4 times while Kande Hembrom had caught hold of Fagu Bodra.
8. P.W.4 (Soma Sardar) has deposed that during the
-4- Cr. Appeal (D.B.) No. 832 of 2017 Chhau dance programme at 12:00 P.M. Fagu Bodra was assaulted with Lathi by Sukhu Sardar and Kande Hembrom. After the assault there was a commotion. After committing the assault both the accused persons had fled away.
In cross-examination, he has stated that in course of the pandemonium he came to know that a fight is going on. He had not seen the assault with Danda.
9. P.W.5 (Motai Koda) has stated that in course of a song and dance programme which was being held in the field a quarrel had started between Fagu Bodra on one side and Sukhu Sardar and Kande Hembrom on the other side. This led to a chaotic situation. He came to know that Sukhu Sardar and Kande Hembrom had committed the murder of Fagu Bodra. Fagu Bodra lay on the place of occurrence drenched in blood. This witness thereafter had come back to his house in the evening.
In cross-examination, he has deposed that there was a crowd at the place where the dance programme was going on.
10. P.W.6 (Sundar Sardar) has deposed that during the dance programme there was a quarrel between Fagu Bodra and Sukhu Sardar as well as Kande Hembrom which led to a pandemonium. He had not witnessed the fight since he was dancing. He came to know that Sukhu and Kande had committed the murder of Fagu Bodra.
In cross-examination, he has deposed that along with him Motai, Shyam and others were also dancing.
11. P.W.7 (Daso Sardar) has deposed that he had also participated in the dance programme. He had not seen the persons who had committed assault upon Fagu Bodra. This witness has been declared hostile by the prosecution.
12. P.W.8 (Shyam Dangil) has stated that he had participated in the Chhau dance programme and in course of the programme Sukhu Sardar and Kande Hembrom had committed
-5- Cr. Appeal (D.B.) No. 832 of 2017 the murder of Fagu Bodra. He does not know as to with which weapon the assault was committed. He also does not know the reason for the occurrence.
In cross-examination, he has deposed that due to the crowd he had not seen as to who had committed the assault.
13. P.W.9 (Dr. Dilip Kumar Singh) was posted as a Medical Officer at Sadar Hospital, Chaibasa. On 28.05.2009 he had conducted autopsy on the dead body of Fagu Bodra and had found the following antemortem injuries:
External findings:
i) Body swollen, skin webs out from the body, tongue protruded.
ii) Incised wound left side frontal region of the scalp 3" x 1" x 5" deep to skull.
iii) Incised wound frontal region of the neck on left side 3" x 1" x 3".
iv) Lacerated wound below the lower lip of mouth 1½ x ½" x muscle deep. Teeth broken.
On dissection Thorax- No rib fracture, Lungs-Pale, Heart-Empty. Abdomen- Liver, spleen-pale, Stomach- empty. Time since death: 48 to 72 hours because rigor mortise absent both limbs.
The cause of death was opined to be due to head injury, haemorrhage and shock due to the above mentioned injuries caused by hard and sharp weapon.
He has proved the postmortem report which has been marked as Exhibit-1.
14. P.W.10 (Nagendra Kumar Singh) was posted at Sonua P.S. as a Sub-Inspector of Police. On 27.05.2009 the fardbeyan of Singrai Bodra was recorded by the Officer-in-Charge Parshuram Paswan in presence of the village Munda Chamu Singh Sardar. He has proved the fardbeyan which has been marked as Exhibit-2. He has identified the handwriting and signature of Parshuram Paswan in the fardbeyan which has been marked as Exhibit-2/1. He has also proved the formal First Information Report which has been marked as Exhibit-3. After taking over the investigation he had recorded the restatement of the informant.
-6- Cr. Appeal (D.B.) No. 832 of 2017 The inquest report was prepared by the Officer-in-Charge of the Police Station. He had also recorded the statements of Chamu Singh Sardar, Shyam Bodra, Sundar Sardar, Shyam Dangil, Daso Sardar, Soma Sardar and Motai Korah. He had obtained the postmortem report. After obtaining the supervision report of his superior officer he had submitted charge-sheet.
In cross-examination, he has deposed that he had not prepared the fardbeyan, formal First Information Report, inquest report and the confessional statement of the accused.
15. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied his involvement in the murder.
16. The defence has examined two witnesses in support of its case.
17. D.W.1 (Sirka Sardar) has deposed that on the date of occurrence Sukhu Sardar was in the house of this witness from 08:00 A.M. to 05:00 P.M. as a Puja was being performed in his house.
In cross-examination, he has deposed that he had not disclosed the fact that at the time of occurrence Sukhu Sardar was in his house either to the villagers or to the Police.
18. D.W.2 (Guruwa Sardar @ Chamu Singh Sardar) is the father of Sukhu Sardar who has stated that the Munda of the village had falsely implicated his son due to a land dispute with Soma Sardar, Sundar Sardar and others as the Munda always favoured them.
19. Mr. Arun Kumar, learned counsel for the appellant has submitted that P.W.3 claims himself to be an eye-witness though his evidence has not been corroborated by the other witnesses in spite of the fact that there were several villagers present when the assault is said to have taken place but whoever have been examined has desisted from citing himself as an eye- witness. He has further submitted that the ocular evidence is not corroborated by the medical evidence as though the assault was
-7- Cr. Appeal (D.B.) No. 832 of 2017 said to have been committed with a Danda but the fatal blows seems to have been inflicted with sharp cutting weapons.
20. Mr. Saket Kumar, learned A.P.P. has submitted that the conviction of an accused can be sustained even on the eye-witness account of a solitary witness provided the same is reliable and trustworthy and the evidence of P.W.3 has not been shaken in the cross-examination. He has submitted that the evidence of the other witnesses conclusively proves that the assault upon Fagu Bodra was committed by the appellant.
21. We have heard the learned counsel for the respective sides and have also perused the Lower Court Records.
22. The genesis of the case is the murder of the brother of the informant Fagu Bodra by the present appellant and Kande Hembrom. The assault was said to have been committed with Lathi/Danda. P.W.1 to P.W.6 and P.W.8 have stated about participating in the Chhau dance programme and the assault is said to have taken place in an adjoining area. The testimony of these witnesses reveal that the assault was visible to a large number of persons who had gathered to take part in the programme. However, barring P.W.3 none have stated about witnessing the act of assault. Many have said about a pandemonium amongst the crowd on account of the assault but as noticed above P.W.3 appears to be the only person who had witnessed the assault committed by the appellant. This witness has stated that the assault was committed with a Danda and Fagu Bodra who was in an injured state was brought by this witness and others near the Jack fruit tree. He could not be rushed to the Hospital since no vehicle was available. This part of his evidence has also not been corroborated by any of the witnesses. It does seem strange that so many persons were aware about the injuries suffered by Fagu Bodra but no efforts were made to get him treated and he lay dead the entire night before the Police came and completed the formalities. This apart the other striking feature is
-8- Cr. Appeal (D.B.) No. 832 of 2017 the autopsy report which suggests that two incised wounds were found on the vital part of the body of the deceased and the cause of death was opined to be due to head injury. This findings runs contrary to the evidence of P.W.3. In the case of "Ram Narain Singh versus State of Punjab" reported in (1975) 4 SCC 497, it was held as follows:
14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. State this Court observed in similar circumstances as follows:
"In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle."
It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the doctor's evidence with a view to support an incorrect case.
23. In the case of "Thaman Kumar versus State of Union Territory of Chandigarh" reported in (2003) 6 SCC 380, it was held as follows:
"16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a
-9- Cr. Appeal (D.B.) No. 832 of 2017 particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."
24. There appears to be a direct conflict between the evidence of P.W.3 and the medical evidence. The ocular evidence would have gained credence if the same was reliable and trustworthy. However, the evidence of P.W.3 suffers from serious infirmities as have been noticed above and coupled with the apparent discrepancy if compared with the medical evidence the same erodes the testimony of P.W.3 which cannot at all be relied upon in order to convict the appellant.
25. The learned trial court has primarily relied upon the evidence of P.Ws. 1, 3, 4, 5, 6 and 8 treating them to be the eye-witnesses though on a close scrutiny it is evident that barring P.W.3 none are eye-witnesses and so far as P.W.3 is concerned, as noted above his evidence on the anvil of the other circumstances belies legitimacy.
26. Consequent to what has been discussed above, we hereby set aside the judgment of conviction dated 13.06.2016 and order of sentence dated 15.06.2016 passed by Sri Pradeep Kumar
-10- Cr. Appeal (D.B.) No. 832 of 2017 Srivastava, learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 192 of 2009, whereby and whereunder the appellant has been convicted for the offence punishable u/s 302 of the IPC and has been sentenced to undergo imprisonment for life along with a fine of Rs. 10,000/- and in default in payment of fine to further undergo R.I. for one year.
27. This appeal is allowed.
28. Since the appellant is in custody, he is directed to be released immediately and forthwith, if not, wanted in any other case.
29. Pending I.As., if any, stand disposed off.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) High Court of Jharkhand at Ranchi Dated, the 18th day of October, 2022.
Alok/NAFR