Judgment:
Criminal Appeal (D.B) No.255 of 2007 ------ Against the judgment of conviction dated 21.11.2006 and the order of sentence dated 28.11.2006 passed by 4th Additional Sessions Judge, FTC IV, Garhwa in S.T.No.43 of 2004. ------ 1.Ramashray Rajwar 2.Naresh Rajwar 3.Rajendra Rajwar…………………………………………Appellants VERSUS State of Jharkhand …………………………………… .Respondent For the Appellants : Mr.A.K.Kashyap, Sr. Advocate For the State : Mr. Shekhar Sinha, Advocate P R E S E N T THE HON’BLE MR. JUSTICE R. R. PRASAD THE HON’BLE MR. JUSTICE PRAMATH PATNAIK By Court: This appeal is directed against the judgment of conviction dated 21.11.2006 and the order of sentence dated 28.11.2006 passed by the then 4 th Additional Sessions Judge, FTC, Garhwa in S.T.No.43 of 2004 whereby and whereunder the appellants as well as Ramashray Rajwar (died during the pendency of the appeal preferred by him) on being found guilty for committing murder of Rajnath Rajwar and also for making an attempt on the life of Punia Devi, mother of the deceased, convicted them for the offences punishable under Sections 302/34,307/34 and 326/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5000/- for the offence under section 302/34 of the Indian Penal Code and further to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2000/- for the offence under Section 307/34 and also to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- for the offence punishable under Section 326/34 of the Indian Penal Code. The case of the prosecution is that on 3.6.2002 while the informant Asarfi Rajwar (P.W.3) after taking meal at 9 O’clock was sitting in his room along with his wife Punia Devi (P.W.1) and his son Rajnath Rajwar (deceased) was lying in the cot at the courtyard where Kamla Devi (P.W.2), daughter-in- law of the informant and also his brother Mandeo Rajwar (P.W.10) and his wife Jhunia Devi (P.W.9) were there, the appellants as well as Mundrika Rajwar (died during the pendency of the appeal preferred by him) and also Bhupan Rajwar (since absconded) came and entered into the courtyard having farsa with them and started assaulting Rajnath Rajwar. On seeing this, when Punia Devi came to rescue her son, the appellants and others severely assaulted her and then fled away. Thereupon the informant and others started taking Rajnath Rajwar and Punia Devi to Ramna for treatment but in the way Rajnath Rajwar died. From Ramna the informant took his wife to hospital at Nagar. On the next morning, when the informant returned home, the police on getting information of the murder of Rajnath Rajwar came on 4.6.2002 and recorded the fardbeyan of the informant Asharfi Rajwar (P.W.3) at 7.15 a.m. where he stated about the incidence as has been disclosed above. He further stated that the appellants, who are agnates had committed such offence as there was land dispute and also on account of the fact that some days before, an altercation had been taken place in between the children of both the families during play of a game. On the basis of fardbeyan (Ext.1), a formal FIR (Ext.3) was drawn. The said Upendra Kumar Singh (P.W.11) himself took up the investigation. During which, he held inquest on the dead body of the deceased and prepared an inquest report (Ext.5). Upon holding inquest, the dead body was sent for post mortem examination which was conducted by Dr.Roshan Kumar Minz (P.W.12). Upon holding autopsy on the dead body of the deceased, doctor did find following ante mortem injuries.
1. Incised wound below left side of ear to chin, red in colour, 4” x 1” x 4” muscle deep cutting veins and nerves, blood clot was found over the wound.
2. Incised wound left side of neck 1/2” below of injury no.1 1” x 4” into muscle deep, cutting veins and nerves.
3. Incised wound left side of neck 1” below injure no.2.
4. Incised wound on left upper arm 1-1/2” x ½” x ½” red in colour.
5. Incised wound on left knee above patella 1” x ½” x ½ “ bone deep .
6. Incised wound on left ankle joint, 1” x ½” x bone deep 7. Incised wound on right knee 1” x ½ “ x bone deep .
8. Contact abrasion on right forearm 1” x ½ “ Doctor issued post mortem examination report (Ext.6) with an opinion that death was caused due to shock and haemorrhage on account of aforementioned injuries caused by sharp cutting object such as farsa. During investigation, the Investigating Officer got the injured Punia Devi examined by Dr. Shyam Sunder Singh (P.W.13), who upon examining her found the following injuries. (1) Incised wound on the right ankle cutting lower end of tibia and fibula. There was profused bleeding leading to grievous and dangerous to life. Right palm separated from lower end of tibia. (2) Incised wound over right three fingers, little ring and middle fingers were found chopped of. The injury was grievous and dangerous to life. There was cutting of three bones . (3) Incised wound on partial temporal 3-1/2 “ x bone deep which were grievous and dangerous to life. (4) Incised wound on right and left chest 1” x 1” x bone deep. Doctor issued injury report (Ext.7) with an opinion that injuries caused by sharp cutting weapon like garasa were dangerous to life. Meanwhile, the Investigating Officer recorded the statement of all the eye witnesses and also the other witnesses. After completion of investigation, charge sheet was submitted against these three appellants as well as one Mundrika Rajwar (died during the pendency of his appeal ) and Bhupen Rajwar showing him as absconder, upon which cognizance of the offences was taken and when the case was committed to the court of sessions, the appellants were put on trial. During trial, the prosecution examined altogether 13 witnesses. Of them, P.W.1, Punia Devi, an injured eye witness, P.W.2, Kamla Devi, P.W.3 Asharfi Rajwar, P.W.8, Raj Kumar Rajwar, P.W.9, Jhunia Devi and P.W.10, Mandeo Rajwar all eye witnesses did testify that while they were in the house either in the courtyard or in the room, the appellants and others named above came armed with garasa and started assaulting the deceased Rajnath Rajwar. On seeing this, when Punia Devi (P.W.1) mother of Rajnath Rajwar (deceased) came to rescue her son, she was also assaulted by the appellants with a view to kill her. According to them, the appellants and others did commit such offence as there was land dispute and some days before, there was altercation in between the children of both the families. P.W.4, Satedra Ram is the witness to seizure of broken garasa having blood make over it, sleeper and hawai chappal. P.W.5, Gopal Ram is also witness to seizure but he as well as other witnesses Naresh Mahra (P.W.6) and Upendra Ram (P.W.7) have turned hostile. After the case of the prosecution was closed, the appellants and others were questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences appearing against them to which they denied. Thereafter the defence examined three witnesses. Of them Rajendra Rajwar, one of the appellants, did testify that on 26.2.1999 while he had gone for getting wheat grinded, the informant, the deceased and some of the witnesses, who have been examined on behalf of the prosecution came and assaulted him. They also assaulted his wife Heera Devi. Sohar Rajwar and Premni Devi have been examined as D.Ws.1 and 2 on behalf of Mundrika Rajwar (since died). They did testify that on the day of occurrence, the appellant Mundrika Rajwar was not in the village where occurrence took place. Thereupon the trial court having placed its implicit reliance on he testimonies of the eye witnesses getting corroboration from the medical evidence and also by the objecting finding of the Investigating Officer found the appellants as well as Mundrika Rajwar (since died) guilty of committing murder of Rajnath Rajwar and also found them guilty for making an attempt to commit murder of Punia Devi and accordingly, convicted and sentenced them which is under challenge. Mr.A.K.Kashyap, learned Sr. counsel appearing for the appellants submits that admittedly relationship in between the prosecution party and the accused, who were agnates to each other, were on the inimical term and therefore, when the deceased was killed by members of the extremist party, the prosecution party got an opportunity to falsely implicate these appellants to settle score. Semblance of this fact is coming to fore from the evidence of P.W.8, Raj Kumar Rajwar where he has testified that three unknown persons had also come along with the appellants but the Investigating Officer did not investigate the case from that angle, rather he on the basis of the statements of interested witnesses conveniently charge sheeted the appellants, though on account of night being dark the witnesses would not have been in position to identify the accused persons in absence of source of light, though, according to the witness, one dhibri (earthen lamp) was burning in the room but the same has never been seized and as such, it could not be ascertained as to whether it can have sufficient illumination to identify the accused. Further submission is that the conduct of the witnesses particularly of the informant (P.W.3) is as such which warrants rejection of his testimony though he has claimed to be an eye witness. In this regard, it was pointed out that as per the evidence of the informant, P.W.3, he was in the room when the appellants entered into the courtyard and started assaulting the deceased but the witness never came out of the room either to rescue his son or to raise alarm whereas natural conduct of a father would have to come to rescue his son or even to raise alarm. In that event, one may form an opinion that he may not be present at the place of occurrence. Apart from that, the witnesses are not consistent as to who among the eye witnesses were present in the courtyard and who were there in the room and that they are also not consistent on the point of assault being made to the deceased and that the testimonies of witnesses do not find corroboration from the medical evidence and thereby the trial court should have acquitted the appellants by giving benefit of doubt. As against this, Mr. Shekhar Sinha, learned counsel appearing on behalf of the State submits that time of occurrence is 9 O’clock in the night and thereby in the village witnesses are expected to be present at home and in fact, all the eye witnesses examined by the prosecution such as P.Ws, 1, 2, 3, 8, were in the house when the appellants came and assaulted the deceased and also to P.W.1 when she came to rescue her son (the deceased), who sustained severe injuries and thereby trustworthiness of this witness (P.W.1) and also of other witnesses can not be doubted rather their testimonies get corroboration from the medical evidence and also by objecting finding of the eye witnesses and thereby the trial court is absolutely justified in recording the order of conviction and sentence and hence, it needs no interference. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution that while the informant, P.W.3 along with his family members, P.Ws. 1, 2, 3, 8 and 10 were in the house in the night of the occurrence, the appellants and also one Mundrika Rajwar (since died) and Bhupen Rajwar (since absconded) came to the house of the informant (P.W.3) and entered into the courtyard where the deceased Rajnath Rajwar was lying over a cot and the witnesses were also there. The appellants finding Rajnath Rajwar in the courtyard assaulted him, as a result of which, he died. While the deceased was being assaulted, his mother Punia Devi (P.W.1) came to rescue him but she was also assaulted. The said occurrence has been claimed to have been seen by six witnesses all inmates of the house; P.W.1 Punia Devi, mother of the deceased, P.W.2, Kamla Devi, wife of the deceased, P.W.3, the informant, father of the deceased, P.W.8, Raj Kumar Rajwar, cousin of the deceased, P.W.9, Jhunia Devi, Aunt of the deceased and P.W.10, Mandeo Rajwar, uncle of the deceased. According to Punia Devi, mother of the deceased, while she was in the courtyard where her son, Rajnath Rajwar was lying over a cot and other persons, namely, P.W.10, P.W.9 and P.W.2 were also present, the appellants and others came and started assaulting with garasa. On seeing this, when she tried to rescue him, she was also assaulted severely, as a result of which, she sustained injuries. The defence tried to impeach her evidence by referring to the statement made in the fardbeyan wherein it has been stated by the informant that he as well as his wife, Punia Devi was in the room whereas she in her testimony has claimed that at the time of occurrence, she was in the courtyard. It is true, situation is like that but one may record that by making reference of the statement made in fardbeyan only the testimony of the informant can be impeached and not of others. However, there has been no denying of the fact that she had received severe injuries and thereby her presence in the courtyard at the time of occurrence can not be denied. In that event, her testimony is hardly impeachable. However, we do find that the witness though has said that it was dark night but at the same time, she had testified that dhibri (earthen lamp) was burning in the house. Since word ‘house’ has been used submission which was advanced in this regard is that house would always mean room but this submission in absence of anything being elicited in this regard cannot be accepted, particularly in view of the testimony of P.W.9, Jhunia Devi where she has testified that dhibri (earthen lamp) was burning not only at the place where she was cooking food but also in the courtyard. Under the circumstances, there does not appear to be any reason to disbelieve the testimony of P.W.1. Similar is the case with P.W.2, Kamla Devi, wife of the deceased, who has testified that while she was cooking meal, the accused persons came with garasa and assaulted her husband and when her mother-in-law came to rescue him, she was also assaulted. Since she has testified that at the time of occurrence she was cooking meal, submission was advanced on behalf of the defence that she may not be in position to see the occurrence which submission appears to be imaginary as she has testified in her cross- examination that when the appellants were assaulting the deceased, she had come to the courtyard. Coming to the evidence of the informant, P.W.3, it appears from his evidence that he had seen the appellants assaulting the deceased from his room. Again the submission was advanced that he also may not be in position to see the occurrence as he was in the room but this submission is based without there being any foundational fact as nothing has been elicited that from the room courtyard was not visible. At the same time, doubt is also being raised over the trustworthiness of his evidence as he never came out of the room. It is true that as per the evidence of P.W.2, he never came out but that conduct in the facts and circumstances of the case never makes him unworthy of credence. How one acts in a given situation it depends upon the wisdom of the person. In a given situation one may act in one manner, others may act in different manner. Acting differently will not always have adverse impact. In the instant case, when he saw his son and his wife being assaulted, he would have thought not to come out of the room and therefore, the fact that the witness did not come to the courtyard at the time of occurrence never undermines of the testimony of this witness and also the testimony of P.W.8, Raj Kumar Rajwar, cousin of the deceased, who have also claimed to have seen he occurrence from his room. P.W.9, Jhunia Devi and P.W.10, Mandeo Rajwar, uncle of the informant were in better position to see the occurrence as both of them have testified that while they were in the courtyard, the appellants came and assaulted the deceased and when P.W.1 came to rescue him, she was also assaulted. Noting has been elicited from them to make a dent over the trustworthiness of those witnesses. Not only P.Ws.9 and 10, rather all the eye witnesses being natural witnesses are trustworthy whose testimonies get corroboration from the medical evidence as the doctor has found number of injuries over the person of the deceased by sharp cutting weapon and at the same time, doctor has also found imjuries on the person of P.W.1. Further we do find that the Investigating Officer did also notice the presence of blood make over the cot on which the deceased is said to have been lying. Going further in the matter, it be stated that submission was advanced that the prosecution has failed to establish the motive but we do find that witnesses particularly P.W.3, P.W.8, P.W.9 and P.W.10 have testified that occurrence took place on account of the fact that the parties were not in good term on account of land dispute. However, plot number and other description of the land has not been given by any of the witnesses but the evidence of D.W.1 amply establishes that the parties were in inimical terms and thereby the motive also gets established. Thus, we do find that the trial court having believed the testimonies of the witnesses has rightly convicted the appellants for the offence punishable under Sections 302/34 and 307/34 of the Indian Penal Code for committing murder of the deceased and also for making an attempt on the life of Punia Devi (P.W.1) but we failed to understand as to why conviction has also been recorded under Section 326/34 of the Indian Penal code. Accordingly, we set aside that part of the judgment of conviction and order of sentence whereby the appellants have been convicted and sentenced under Section 326/34 of the Indian Penal Code. It is made clear that the conviction and sentence passed for the offence under sections 302/34 and 307/34 of the Indian Penal Code remains intact and it is hereby affirmed. Accordingly, we do not find any merit in this appeal and hence, with the modification of conviction and sentence as aforesaid, this appeal stands dismissed. (R. R. Prasad, J.) (Pramath Patnaik, J.
) Jharkhand High Court, Ranchi, Dated the 19th May, 2015, NAFR/ N.Dev.