Jharkhand High Court
Dashru Lohra vs The State Of Jharkhand on 9 May, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 892 of 2013
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Dashru Lohra ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Gaurav, Advocate
For the State : Mr. Vishwanath Roy, A.P.P.
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13/09.05.2022 Heard Mr. Gaurav, learned counsel for the appellant and
Mr. Vishwanath Roy, learned A.P.P. for the State.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 30.09.2013 (Sentence passed on
07.10.2013) passed by Sri Sushil Kumar Jha, learned Additional
Sessions Judge, Simdega in S. T. No. 176 of 2009 whereby and
whereunder the appellant has been convicted for the offence under
Section 302 of the Indian Penal Code and has been sentenced to
undergo imprisonment for life along with a fine of Rs. 10,000/-.
3. A Fardbeyan was recorded of Anima Lugun on 01.07.2009
wherein it has been stated that on 30.06.2009 at about 07:30 p.m. she
was sitting in the door of her house and her husband Marianus
Lugun had gone to borrow tobacco from his neighbour Alphons
Kerketta. It has been alleged that in course of her husband taking
tobacco, Dasru Lohra (appellant) had arrived with a Bansula and
assaulted her husband which resulted in his death. She, on seeing
such a ghastly act, started crying and shouting at which several
persons assembled but the accused fled away towards the jungle
with a Bansula. The cause of the incident according to the informant
is on account of a land dispute.
Based on the aforesaid allegations Jaldega (Orga O.P.) P. S.
Case No. 19 of 2009 was instituted against the accused Dashru Lohra
for the offence under Section 302 of the Indian Penal Code. On
conclusion of investigation, charge-sheet was submitted under
Section 302 of the Indian Penal Code after which cognizance was
taken by the learned Chief Judicial Magistrate, Simdega on
05.10.2009. The case was committed to the Court of Sessions on
12.11.2009 and charge was framed against the accused/appellant on
25.06.2010 under Section 302 of the Indian Penal Code which was
read over and explained to him in Hindi to which he pleaded not
guilty and claimed to be tried.
4. The prosecution has examined as many as seven witnesses in
support of its case.
5. P.W. 1 Praful Lomga has not supported the case of the
prosecution and has accordingly been declared hostile by the
prosecution.
6. P.W. 2 Subal Lugun has deposed that the incident is of
30.06.2009 at about 07:30 p.m. when on hearing the cry of alarm, he
had come outside and had seen the accused assaulting his brother
Marianus Lugun with a Bansula. He has identified the accused in the
court.
In his cross-examination, he has stated that the deceased was
his younger brother. This witness stays at Girja Toli while the
deceased used to stay at Lohra Toli. The distance of his house from
the residence of the deceased is about half a kilometre and there are
agricultural fields in between. He has stated that he had come to the
place of occurrence on hearing the cry of alarm and when he had
reached the place of occurrence Marianus Lugun was already lying
on the ground.
7. P.W. 3 Iliyas Lugun @ Kerketta has stated that the incident is of
two years back at about 07:30 p.m. when he had seen Dashru Lohra
assaulting Marianus Lugun as a result of which Marianus Lugun
had died. He has identified the accused in the dock.
In his cross-examination, he has deposed that when he came
out from his house after 15-20 minutes, he had seen Marianus lying
on the ground.
8. P.W. 4 Anima Lugun is the informant and the wife of the
deceased who has stated that the incident is of three years back and
it was night when the same had occurred. She has stated that there
was a dispute between her husband and the accused which
culminated in the commission of murder of her husband by the
accused with a Bansula. She had given her statement before the
police. She has also identified the accused in the dock.
In her cross-examination, she has deposed that she had heard
that there was a quarrel between her husband and the accused and
an assault had also taken place. She has further stated that the police
had come after a day of the occurrence. According to her, there was
enemity between both the sides due to a land dispute.
8. P.W. 5 Ram Sarovar Singh is the Investigating Officer who was
posted at Orga O.P. as an Assistant Sub-Inspector of Police on
01.07.2009. On receiving an information regarding a murder, he had
entered such information in the station diary and proceeded towards
the place of occurrence. He had recorded the Fardbeyan of Anima
Lugun which is in his hand writing and bears his signature and
which has been proved and marked as Exhibit - 1. The inquest
report of Marianus Lugun was also prepared by him. After taking
over investigation of the case, he had sent the body to Sadar
Hospital, Simdega for post mortem, recorded the restatement of the
informant and also the statement of the witnesses Subal Lugun,
Iliyas Kerketta, Praful Lomga, Nicholas Lugun and Alphons
Kerketta. He has, thereafter, inspected the place of occurrence which
is in front of the main door of Alphons Kerketta. On conclusion of
investigation, he had submitted charge-sheet. He has also proved the
formal FIR which has been marked as Exhibit -2.
In his cross-examination, he has stated that he has not
mentioned in the diary that there was presence of blood at the place
of occurrence. He had not recorded the statements of Daud Surin
and Masih Surin.
10. P.W. 6 Dr. Krishna Kumar Sharma was posted at Simdega on
02.07.2009 on which date he had conducted autopsy on the dead
body of Marianus Lugun. He had found the following injuries:-
i) Incised wound of size 3"x1/4"x1/2" over back of neck
on left side;
ii) Incised wound of size about 3"x1/4"x3" about one inch
blow injury no (i) cutting sixth cervical vertebrae partially;
iii) Lacerated wound of size about 1- ½"x 1"x bone deep
over left temporal region of head;
iv) Incised wound of size about 2"x1/2"x bone deep about
1-1/2" interior to injury no. (iii);
In the opinion of this witness, injury nos. 1, 2 and 4 are due to
sharp cutting object such as Bansula and injury no. 3 is due to a hard
and blunt substance and all the above injuries are anti-mortem in
nature.
In his cross-examination, he has deposed that four separate
blows are required for the four injuries sustained. Such injuries are
possible by a heavy weapon weighing at least 2 k.g.
11. P.W. - 7 Alphons Lugun @ Kerketta has deposed that the
incident is of four years back and it was dusk when he and his entire
family members were sitting outside the house. He has stated that
Marianus Lugun had wanted tobacco from him which was given
when all of a sudden, the accused came and gave a blow on the neck
of Marianus Lugun with a Bansula. Due to such assault, Marianus
Lugun died while the accused had fled away.
In his cross-examination, he has stated that at the time of the
incident he was sitting along with his family members which
included his daughter Deonita, son-in-law Iliyas Kerketta and his
wife Elisba Baro. He has stated that there are several houses adjacent
to his house. When he had raised an alarm nobody had come. The
house of Ajit Kandulna, Masi Soren and Netro Surin are situated
nearby. This witness has further deposed that there was no other
person save and except the persons named by this witness. He has
once again stated that no one had come when he had raised alarm.
He does not know as to whether any dispute was existing between
Marianus Lugun and the accused or not. This witness has further
stated that Marianus was his eldest son.
12. The statement of the accused was recorded under Section 313
CrPC in which he has merely denied his involvement in the
occurrence.
13. It has been submitted by Mr. Gaurav, learned counsel for the
appellant that the evidence of the witnesses do not indicate that they
are the eye-witnesses to the occurrence. It has been stated that
several material witnesses have not been examined. He has
submitted that some of the witnesses have stated about a land
dispute between the deceased and the appellant and, therefore, the
false implication of the appellant cannot be ruled out. Drawing the
attention of the Court to the post mortem report, Mr. Gaurav,
learned counsel for the appellant has submitted that the injuries
sustained by the deceased could not have been inflicted by a solitary
person and the evidence of the witnesses indicate that they want to
screen the real offender.
14. Mr. Vishwanath Roy, learned A.P.P. has opposed the prayer of
the appellant while submitting that several eye-witnesses have
described the manner of occurrence and the participation of the
appellant in committing the murder of Marianus Lugun and some
minor inconsistencies would not dilute the case of the prosecution.
15. We have heard the rival submissions and have also perused
the lower court records.
16. The FIR gives a description of the assault and the appellant has
been described as the person who had without any provocation
attacked the husband of the informant with a Bansula resulting in
his death. The informant claims herself to be an eye-witness to the
occurrence. In course of trial apart from the informant who has been
examined as P.W. -2, P.W. - 3, P.W. - 4, and P.W. - 7 have also
claimed themselves to have witnessed the occurrence. The learned
trial court has convicted the appellant primarily by putting reliance
upon the evidence of P.W. - 3, P.W. - 4 and P.W. - 7.
17. P.W. - 2 is the brother of the deceased who in his examination-
in-chief has stated about the assault committed by the appellant
upon the deceased. He has said that he had come out from his house
on hearing the cry of alarm but in his cross-examination, he has
stated that his house is about half a kilometre away from the house
of the deceased. The occurrence is said to have taken place in front of
the house of the Alphons Kerketta who is a neighbour of the
deceased as stated by P.W. - 4 in his Fardbeyan and as such P.W. - 2
cannot at all be considered to be an eye-witness.
18. P.W. - 3 in his cross - examination has stated that he had come
out from his house after 15-20 minutes from the time of the incident
and he had seen Marianus Lugun lying on the ground. It is clear
from the evidence of P.W. - 3 that he is also not an eye-witness to the
occurrence.
19. The informant though in fardbeyan has given a description of
the occurrence witnessed by her but in her cross-examination as
P.W. - 4 she has stated about hearing the dispute between the
deceased and the appellant and assault consequent to such dispute.
Even from her examination-in-chief, it cannot be deciphered that she
is an eye-witness. She has also stated about the existence of a
previous enmity.
20. P.W. - 7 who was aged about 70 years has also claimed to have
witnessed the occurrence along with the son-in-law, daughter and
his wife. The wife and daughter of P.W. - 7 have not been examined
by the prosecution but his son-in-law has been examined as P.W. - 3.
However, P.W. - 3 has given a different version and his evidence
neither indicates the presence of P.W. - 7 nor he convenes the role of
P.W. - 3 as an eye-witness. P.W. - 7 has raised alarm but not a single
person had arrived. He has given the names of his neighbours but
none have been examined by the prosecution. This witness has
stated that the incident occurred between 7-8 p.m. and there was no
light. He has stated that the appellant came, struck the deceased on
his neck with a Bansula and fled away. According to P.W. - 7, there
was a single blow inflicted by the appellant but the post mortem
report reveals a different scenario. The deceased had suffered three
incised wounds and a lacerated wound over left temporal region of
head. The doctor has opined that a heavy instrument was used in
such assault. The injuries would reveal either indiscriminate assault
on the deceased or presence of more than one assailant.
21. The evidence of the eye -witnesses and the hearsay witnesses
regarding the involvement of the appellant and the post mortem
report when considered would reveal a veil of doubt securing the
role of the appellant with an intention to perhaps screen the real
offender(s). Added to this is the previous enmity arising out of a
land dispute between the appellant and the deceased which would
not rule out the false implication of the appellant.
22. We are, therefore, of the considered view that the evidence of
the witnesses specially P.W. - 4 and P.W. - 7 do not inspire
confidence as they are inconsistent with each other as well as to the
evidence of the other witnesses and cannot be relied upon. The
learned trial court had overtly relied upon the evidence of P.W. - 3,
P.W. - 4 and P.W. - 7 without properly appreciating the innate
deficiencies in their evidences.
23. We on the basis of the findings recorded above, therefore,
come to the conclusion that the prosecution has miserably failed to
prove its case beyond all reasonable doubt. As a consequence, we
hereby set aside the judgment and order of conviction and sentence
dated 30.09.2013 (Sentence passed on 07.10.2013) passed by Sri
Sushil Kumar Jha, learned Additional Sessions Judge, Simdega in
S. T. No. 176 of 2009 whereby and whereunder the appellant has
been convicted for the offence under Section 302 of the Indian Penal
Code and has been sentenced to undergo imprisonment for life
along with a fine of Rs. 10,000/-.
24. This appeal stands allowed.
25. Pending I.A.s, if any stands disposed off.
26. Since the appellant is in custody, he is directed to be
released forth with, if not wanted in any other case.
(R. Mukhopadhyay, J.)
(Rajesh Kumar, J.)
Umesh/-
