BudIn Hansda @ Budinath Hansda and ors. Vs. the State of Jharkhand - Court Judgment

D.G.R. Patnaik, J.

1. The appellants were put on trial for the offence under Section 302 and 302/149 of the Indian Penal Code. While appellant No. 1 Budin Hansda was convicted for the offence under Section 302 of the Indian Penal Code, remaining accused were convicted for the offence under Section 302/149 of the Indian Penal Code and all of them were sentenced to undergo imprisonment for life by the trial court.

2. Prosecution case relates to the murder of one Dhena Marandi, a resident of village Mol Pahari Bathan situated at about 15 km from the nearest police station namely Pakuria police station in the district of Pakur. The incident had occurred in the evening of 18.4.1995. A dispute over certain land was pending between the informant and his family members an one side and the accused Budin Hansda and Girish Marandi on the other side. A panchayati was to be held to resolve the dispute on 18.4.1995. A pradhan of village namely Johan Murmu (PW9), Amin namely Gulam Rasool Mian (PW 10) and two other Amines of another village besides others including Dhena Marandi (deceased) were present at the panchayat meeting. At that time, accused persons namely. Budin Hansda, Dhemka Hansda, Noo Hansda, Kanhu Thakur Tudu, Rasool Baski, Amin Baski, Srinath Baski, Girish Marandi and Palwan Soren arrived there with bows, arrows, lathi, bhujali and oilier lethal weapons. As soon as they arrived, they began shooting arrow, as a result of which, punches began fleeing away. However, the deceased Dhena Marandi was caught hold by the assailants and he was also assaulted and felled down by lathi. The appellants Budin Hansda thereafter cut the throat of the victim Dhena Marandi resulting in the victim's instant death. The incident was witnessed by several persons who were present there.

Fardbeyan of the informant Devidhan Marandi (PW8) who is the nephew of the deceased, was recorded at about 5.00 AM at village Pakuria by the police officer who had visited the village. The police officer prepared the inquest report in presence of the witnesses and had forwarded the dead body of the deceased to the hospital for postmortem examination.

3. The trial was conducted jointly against seven of the accused persons who were named in the F.I.R. Trial of two others namely, Dhemka Hansda and Noo Hansda was separated since they were found to be juveniles. At the trial, the prosecution has examined altogether eleven witnesses including the informant (PW8), the doctor (PW6) who had conducted postmortem examination on the dead body of the deceased and other material witnesses. Learned trial court after going through the evidences on record and placing reliance upon the testimony of the informant as an eye witness to the occurrence and also on the testimony of PW1, who is the brother of the informant and that of PW5, who is the daughter of the deceased, and on the evidence of the doctor had provided its finding of guilt against all the accused persons for the aforementioned offences.

4. The appellants have assailed the impugned judgment of conviction and sentence basically on the ground that the learned trial court has seriously erred in failing to appreciate the evidences on record in proper perspective and arriving at its finding of guilt against the accused persons ignoring numerous vital contradictions in the evidence of the witnesses and also ignoring the fact that the non-examination of the investigating officer has caused serious prejudice to the defence and further ignoring the fact that the witnesses on whose testimony reliance was placed, are highly interested witnesses and their testimony has not been corroborated by any independent evidence. It is also contended that the learned trial court had erred in ignoring the contradictions between the ocular and medical evidence inasmuch as no injury of arrow was either found by the doctor or mentioned in the inquest report, although the purported eye witness claims that the deceased had suffered injury by arrow. It is further contended that the learned trial court has erred in failing to consider the possibility of false implication of the appellants by the informant party on account of admitted previous enmity due to the land dispute and further more, that the information which was given initially and first in point of time to the police regarding the occurrence and on the basis of which, police had arrived at the village of the informant has been suppressed and instead, the purported fardbeyan of the informant has been projected by the prosecution as the F.I.R., although the same is hit under Section 162 Cr. P.C.

5. Learned Counsel for the State, on the other hand, has strongly defended the impugned judgment of conviction and sentence, as recorded by the trial court against the appellants. Contention of the learned Counsel is that the argument of the appellants that the informant and other eye witnesses could not be relied upon merely because there are members of the family of the deceased, is totally misconceived. These witnesses, according to the learned Counsel, were present at the place of occurrence due to fact that a Panchayati meeting was called for and they had occasion to see the entire occurrence and as such, they being the natural witnesses, there is no reason why their testimony should not be relied upon. As regards the purported prejudice caused by the non-examination of the investigating officer, learned Counsel submits that the defence has not through any such circumstance on record to indicate that the non-examination of the investigating officer has caused any prejudice whatsoever to the appellants. Learned Counsel explains that the place of occurrence has adequately and clearly been described by the eye witnesses particularly the informant (PW8) and other persons who were present there including PW1 and PW5 and even the hostile witnesses, who have though not supported the prosecution's case fully but have affirmed the place of occurrence by lending adequate corroboration to the testimony of the eye witnesses. Learned Counsel adds that there is no discrepancy at all between he ocular testimony of the eye witnesses and the post-mortem report.

6. From the evidences on record, it appears that out of the several witnesses examined by the prosecution, the informant (PW8), his brother (PW1), daughters of the deceased (PW3 and PW5) have claimed to be the eye witnesses to the occurrence. One police officer namely, Dinesh Paswan (PW7) who has been examined, has claimed that he had accompanied the investigating officer Raj Ballav Singh to the place of occurrence and in his presence and also in the presence of the witnesses, the investigating officer had prepared the inquest report on the dead body of the deceased Dhena Marandi and further, that the investigating officer had also recorded the fardbeyan of the informant (Ext.3). On transfer of the investigating officer, this witness had taken up the investigation and alter concluding the investigation, he had submitted charge sheet against the accused persons.

From perusal of the evidences and trend of cross-examination of the witnesses, it appears that the unnatural death of the deceased Dhena Marandi has not been disputed and confirmation of the fact that the deceased had suffered homicidal death is available from the evidence of the doctor (PW6) and the postmortem reported recorded by him. The doctor has deposed that he had conducted the postmortem examination on the dead body of the deceased at 12.30 PM at sadar hospital on 20.4.1995. In his opinion, the dead body had suffered second degree decomposition. He found following ante mortem injuries on the dead body of the deceased.

1. Sharp cut injury on the front of the neck 3' x 2' muscle deep with cutting of the gullet and Trieia.

2. Lacerated injury 1' x 1/2 'x bone deep on the left eye brow.

3. Multiple fracture of occipital and parietal bone.

4. Sharp cut injury 2' x 1' x bone deep with fracture of left mandible.

On opening the skull, he found multiple fracture of occipital and Parietal bone and brain tissues were badly lacerated. The cause of death, in his opinion, was on account of severe injury on the skull and cutting of the neck. He has further stated that the dead body was brought and identified before him by constable No. 267 Suresh Singh and Choukidar Ash Mohammad. In his opinion, time elapsed since the death was within 72 hours and has stated on the basis of extent of decomposition of the dead body, he has ascertained time elapsed since death.

7. Referring now to the witnesses who have been projected as eye witnesses to the occurrence, the evidence of the informant (PW8) is relevant. He has disposed that the incident had occurred on 18th April 1995. On that day, a panchayat meeting was scheduled to be held at the house of village Pradhan Johan Murmu (PW9) for settling the land dispute between Kaku Marandi and Dhanweti Marandi, both of whom happen to be his sisters. On the direction of the pradhan, measurement of the disputed land was to be made and for which, Amin namely, Gulam Rasool Milan (PW10) and other persons of the village who had constituted panches had assembled. Members of one of the parties had also assembled there, but the opposite party had not arrived. It was at about 5.00 PM that the accused persons namely, Budin Handa, Dhemka Hansda, Rasool Baski, Srinath Baski, Kanhu Thakur Tudu, Palwan Soren and Girish Marandi, who were members of the other patty, arrived at the paddy field variously armed with lathi, sword and Bhujali and opened assault on the informant's brother Shibu Marandi. (PW1) and his uncle Dhena Marandi (deceased). He explains that he and his brother Shibu Marandi fled away from the place to a distance of about 50 yards, but his uncle Dhena Marandi could not escape. He claims to have seen that his uncle was assaulted by all the accused persons with lathi and felled down on the ground, whereafter the accused Budin Hansda dealt a Bhujali blow and cut the neck of the victim. He admits in his cross-examination that earlier on previous occasion, the accused Girish Marandi had instituted a criminal case against him The evidence of PW1, who has been referred to by the informant (PW8) as his brother is identical to the evidence of the informant on the time, manner and place of occurrence as also the identity of the assailants. He too has identified all the assailants and has stated categorically that while all the accused persons had assaulted the deceased and felled him down him on the ground, the accused Budin Hansda had inflicted cut injury on the neck of the deceased when the victim had fallen down on the ground. From the evidence of these two witnesses, it appears that they have described the place of occurrence to be the disputed paddy field situated at village Paliadaha within the police station of Pakuria and it was the same land which was to be measured by the Amin (PW10). The police officer (PW7) has described the aforesaid place as Mol Pahari Bathan and it is claimed that it is this place where the dead body of the deceased was found.

PW5 also confirms to have seen the incident and claims that at the time when the panchayati was to be held and disputed land was to be measured, the accused persons arrived there variously armed with lethal weapons and assaulted the deceased. She specifies that the accused Budin Hansda had inflicted cut injury on the neck of the deceased resulting in the instant death of the victim, while others had assaulted with lathi. Amongst the weapons which the accused persons are claimed to have held in their hands, this witness claims that she had also seen pistol in the hand of one of the accused, but the informant or PW1 have not corroborated the above statement.'

PW3 claims to be the eye witness to the occurrence and says that the accused persons had shot arrow and had killed the deceased by causing arrow injury to him. This witness has further stated that when the accused persons had arrived, she had fled away. It is apparent that she could not have seen the occurrence of assault and therefore, her claim to be an eye witness to the occurrence, cannot be accepted.

Johan Murmu (PW9), who is the village Pradhan, has stated in his evidence that on the date of occurrence, a panchayati was held at his house for settling the land dispute between his co-villagers Dhanweti Marandi and Kaku Marandi and it was decided at the meeting that the disputed land should be divided by demarcation and Amin was also invited for measuring the land. He, however, does not go any further to acknowledge as to what had happened at the place of occurrence and was promptly declared hostile by the prosecution.

Gulam Rasool Mian (PW10) has deposed that he is an Amin by profession and that there was the land dispute between the accused persons on the one side and co-villager Kaku Marandi on the other, concerning their paddy fields. He further affirms that on the date of occurrence, he along with another Amin of village Aludaha had arrived at the land for measuring the same. He however, refuses to acknowledge any incident. He too was promptly declared hostile by the prosecution. Other witnesses namely PW11 Johan Soren another co-villager, was also declared hostile by the prosecution.

Though, these hostile witnesses have failed to offer support to the prosecution's case on the point of occurrence, yet it is significant to note that they have affirmed that on the date of occurrence, pursuant to the decision of the panchayat, the paddy field of the disputants within the village was to be divided by demarcation after measurement and for this purpose, two Amins were called for and both of whom were present at the site and that the family members of the parties had Also arrived at the site. It has come in the evidence of the informant (P W8) that he and his family members had assembled from the side of one of the parties, while accused persons represented the other party to the dispute. Thus, the presence of the informant (PW8), his brother (PW1) the deceased and daughters of the deceased (PW3 and PW5) at the place of occurrence has been explained.

8. Learned Counsel for the appellants has strenuously argued that the evidence of PW8, PW1 and PW3 and PW5 should not be relied upon, since they are the near relations of the deceased and, therefore, highly interested and also because, no independent witness has offered any support to their evidence. The contention of the learned Counsel for the appellants that the evidences of the near relations should be totally discarded, since they are highly interested witness, appears to be misconceived and misplaced. There is no rule of law that the evidence of such witnesses should be discarded altogether. The rule of appreciation of evidence prescribes only that the evidence of such witnesses needs to be scrutinized with care and caution and such degree of caution should reasonably be more in case of evidence of previous enmity.

9. As mentioned earlier, the presence of the informant (PW8) and that of PW1 as well as the deceased along with his wife and daughter at the place of occurrence has been explained, since they had assembled there in order to witness the division of the disputed land between the two sisters of the informant. The occasion for these witnesses to he present at the place of occurrence is also confirmed even by the hostile witnesses. It is true that the independent witness have not offered any support to the prosecution's case by lending corroboration to the evidence of the informant and his family members on the point of occurrence, but such failure on their part to support the prosecution case has to be viewed along with the fact that they happen to be the residents of the same village of which, the accused persons are also residents and therefore, their preference to remain neutral. The matter of significance is that the prosecution has fairly produced all these witnesses and has not withheld them. Furthermore, the description of the manner of assault, as narrated by the informant and supported by PW1 in particular, is corroborated by the medical evidence. The claim of the eye witnesses that the deceased was first felled down by the assault with lathi when all the accused persons had surrounded him and thereafter, one of the accused namely Budin Hansda had assaulted the victim on his neck with Bhujali, finds corroboration from the ante mortem injury which the doctor (PW6) had observed and recorded in the postmortem report.

10. The evidence of the informant (PW8) and that of PW1 are clear and consistent and unambiguous. Their evidence finds ample support in material particulars from the evidences of PW3 and PW5, besides the medical evidence. Their evidence also finds partial support from the evidence of the hostile witnesses also. The evidence of these witnesses is therefore trustworthy and reliable. The evidence of these witnesses clearly indicate that each of the present accused persons, who have been specifically named, had arrived at the place of occurrence variously armed with lethal weapons and had launched a joint assault on the deceased and one of them namely Budin Handa had dealt a fatal blow with sharp cutting weapon on the skull and the neck of the deceased and the resultant effect of the injury caused on the neck of the deceased was his instantaneous death.

11. The controversy raised by the learned Counsel for the appellants that the original version of occurrence which was given at the police station in the night of the occurrence itself, has been suppressed by the prosecution, appears also to be misplaced. This controversy appears to be raised only on the basis of the statement of the informant (PW 8) that the police was informed in the night of the occurrence itself and that the police had visited the place of occurrence in the early hours of next morning. Though, PW8 has stated that the information regarding the occurrence was conveyed to the police in the night of the date of occurrence itself, he has not specifically stated that lie has himself visited the police station, nor has he specifically stated the name of the person who had informed the police about the occurrence. The appellants have also not come up with definite claim of knowledge that any information was received and recorded at the police station by the police officer and neither was any such suggestion put to the police officer (PW7) by the defence.

As regards the non-examination of the investigating officer on careful reading of the evidence of the witnesses and the materials elicited from them in their respective cross-examination, there appears no such circumstance unanswered or leaving scope for any controversy to enable the appellants to claim that they have suffered prejudice on account of non-examination of the investigating officer. A few minor contradictions in the evidence of PW3 and PW5 which relate to the weapons used for inflicting injury on the deceased, have been pointed out by the learned Counsel for the Appellants, but the learned trial court appears to have taken note of the same and has not placed reliance entirely on the evidence of these two witnesses.

12. We find that the learned trial court has discussed the evidence on record elaborately and has assigned adequate reasons for arriving at the finding of guilt, which was recorded by it against the accused persons.

13. We do not find any infirmity or illegality in the impugned order. Accordingly, this appeal is dismissed. Judgment of conviction and sentence, as imposed by the trial court against the appellants, is hereby confirmed.

R.R. Prasad, J.

14. I agree.