Judgment:
1. Cr.Appeal (DB) No.430 of 2005 ------- [Against the judgment of conviction and order of sentence dated 28th July, 2004 and 30th July, 2004 respectively, passed by Sri Raj Narayan Tiwari, learned Additional District & Sessions Judge, Fast Track Court, Lohardaga in Sessions Trial Case No.278 of 2000] ---- Niraj Tamera @ Lecha, son of Jogeshwar Tamera, resident of Garhatoli (Barwatoli), P.O. & P.S. & District Lohardaga ........... Appellant -Versus- The State of Jharkhand ............ Respondent ------ For the Appellant : Rajesh Kumar Mishra, Advocate For the State : Mr. Amaresh Kumar, APP ------ PRESENT HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE P.P. BHATT ------ Dated, the 10th September, 2015 Per Virender Singh, C.J.
(Oral): The appellant, Niraj Tamera @ Lecha (hereinafter referred to as the accused) after suffering conviction for the charge of Section 302 IPC vide impugned judgment of conviction and order of sentence for life imprisonment dated 28th July, 2004 and 30th July, 2004, respectively, has preferred the instant appeal.
2. Since he is in custody for the last more than 16 years, priority has been given to this case. The instant appeal is otherwise pending in this Court for the last ten years.
3. One Budhwa Oraon is the deceased in this case. He was allegedly assaulted by the appellant with knife. According to the doctor of autopsy, as many as four injuries are found on the person of the deceased and all have on vital part of the body viz left side of the chest and umbilicus. These are stab wounds.
4. The police was set on motion on the statement of Sushil Oraon recorded on 22.9.1999 at about 10.30 p.m. stating therein that at about 8 O'clock, when he was in the house, some person came and informed him that his cousin 2. brother- Budhwa Oraon (deceased) was killed by the accused by assaulting him with knife and that the villagers had caught the accused along with the knife. He then went to the police station along with the dead body and reported the matters, upon which, formal FIR being P.S. Case No.95/1999 was registered under Section 302 IPC.
5. During the course of investigation, the prosecution recorded the statement of certain witnesses including the eye witnesses. The autopsy on the dead body of the deceased was conducted by the Doctor M.M. Sengupta. The ac- cused was arrested. The weapon of offence (knife) was recovered at his instance and on completion of the investigation, challan was filed against him to face the trial for the charge of Section 302 IPC, for which he now stands convicted and sen- tenced.
6. The prosecution in support of the charge, has produced as many as eight witnesses, but, we, without entering into the details of all the witnesses, feel the necessity of discussing the evidence of the eye witnesses only viz. P.W.-Dinesh @ Dhiran Lakra and P.W.-Mallu Oraon. P.W.-Mallu Oraon, has also stated about the quarrel which has been taken place between Niraj Tamera, Dhiraj Tamera and Amar Kindo, which was settled by the villagers and in that quarrel, Budhwa Oraon had intervened. On the same day, the occurrence had taken place. P.Ws. Dinesh @ Dhiren Lakra and Mallu Oraon are consistent with regard to the main occurrence that the deceased was assaulted by the accused with the knife. Rather, in the cross-examination of P.W.-Dinesh @ Dhiran Lakra, when a specific question was put to him about the numbers of injuries, he categorically stated that he had seen the accused giving four injuries on the person of the deceased and as per the post- mortem report, the deceased had received four stab wounds.
7. The occurrence has taken place near the house of Deora Oraon as is stated by both the eye witnesses and the learned counsel for the appellant made an attempt to demolishes the evidence of eye witnesses stating that the best wit- ness with the prosecution was Deora Oraon and he has not been produced during 3. the trial. Learned counsel submitted that his name does not appear even in the list of witnesses. We are not in agreement with the submissions advanced by the learned counsel for the appellant-accused for the reasons that it has nowhere come during the trial that Deora Oraon had also seen the occurrence. The only fact available on record is that the occurrence had taken place near the house of Deora Oraon.
8. Learned counsel submitted that another vital flaw in the case is non- examination of the Investigating Officer. Not only that, even the knife allegedly re- covered at the instance of the accused, has also not been produced during the trial. He has also pointed out certain discrepancies in the statement of aforesaid two eye witnesses. In our considered view, even that aspect cannot be said to be fatal to the case of the prosecution. Non-examination of the Investigating Officer is not vi- tal in each and every case of the prosecution as it depends upon the individual fact of the case and in the case on hand when eye version account as put forth by the prosecution is believable, there being no reason to doubt the presence of the these witnesses at the time of occurrence near the place of occurrence, the examination of the Investigating Officer in any manner could not improve the case of the prose- cution, as such non-examination of Investigating Officer also cannot cause any damage to the case of the prosecution. Similarly, non-production of knife during the trial, would also not weaken the case of the prosecution in any manner once the eye version account is found to be believable. The case of the prosecution as unfolded by the aforesaid two witnesses is that the accused had given repeated four knife injuries on the person of the deceased, which fact is strengthened by the medical evidence. As stated above, there are as many as four injuries on the per- son of the deceased, all caused by the knife on the vital part of the body, as it is ev - ident from the statement of P.W.-Doctor M.M. Sengupta.
9. We do find certain discrepancies in the statement of the aforesaid two eye witnesses, but those are not of that serious nature so as to take them as a ground for dislodging the eye version account in totality. Certain discrepancies are 4. bound to happen in the statement of even most natural witnesses with the lapse of time and that appears to be a reason of those discrepancies occurring in the state- ments of the eye witnesses, who are otherwise rustic villagers.
10. Since we do not find any inherent weakness in the evidence of the aforesaid two eye witnesses, which is consistent and trustworthy vis-a-vis the main occurrence, we do not feel the necessity of discussing the other piece of evidence unnecessarily.
11. As a sequel to the aforesaid discussion, the net result now surfaces is that the prosecution has been able to prove its case against the accused for the charge of Section 302 IPC beyond any shadow of reasonable doubt. His convic- tion and sentence dated 28th July, 2004 and 30th July, 2004 respectively, as already rendered by learned Additional District & Sessions Judge, Fast Track Court, Lohardaga in Sessions Trial Case No.278 of 2000, thus, deserves to be up- held. Ordered accordingly.
12. The appeal, on hand, stands dismissed. ( Virender Singh, C.J.) (P.P. Bhatt, J.) High Court of Jharkhand, Ranchi, Dated the 10th of September, 2015. Anu/SI/ NAFR