Jharkhand High Court
Longra Pawariya vs The State Of Jharkhand on 21 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (SJ) No. 373 of 2011
(Against the judgment of conviction dated 19th January 2011 and the order of sentence
dated 21st January 2011 passed by the learned 1st Additional Sessions Judge, Rajmahal
in S.C. Case No. 36 of 2007)
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Longra Pawariya, S/o late Chunda Pawariya, Village Aamjhor, PO & PS
Ranga, District Sahibganj, Jharkhand .... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
(Heard on 06th September 2023)
PRESENT
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant(s) : Mrs. Archana Kumari Singh, Amicus
For the State : Mrs. Ruby Pandey, APP
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JUDGMENT
CAV on 06th September 2023 Pronounced on 21 September 2023
Per, Subhash Chand, J.
This criminal appeal has been preferred against the judgment of
conviction dated 19.01.2011 and order of sentence dated 21.01.2011 passed
in Special Case No.36 of 2007 by the learned 1 st Additional Sessions Judge,
Rajmahal, District Sahibganj whereby the learned court below had convicted
the appellant for the offence under section 326 of the Indian Penal Code and
sentenced with rigorous imprisonment of six years and a fine of Rs.1,000/-.
In default of payment of fine the appellant/convict was directed to undergo
additional simple imprisonment of three months.
2. The brief facts of prosecution case leading to this criminal
appeal are that the informant Pandu Hembram had given the written
information with these allegations that on 22.06.2006 in the morning he
alongwith Somai Hembram, Saiba Hembram, Fudan Hembram and others
2 Cr. Appeal (SJ) No. 373 of 2011
had gone for hunting in the hillock and hunted one wild cat (banbillar).
They brought the wild cat and in preparing Khichri in the night, at about
11:30 O'clock, Longra Pawaria and Baijul Murmu came at the place where
the Khichri was being prepared. They demanded their share in the Khichri
while they had not participated in the hunting of the wild cat. On this issue,
altercation took place, both the accused abused the informant and when the
informant forbaded then Baijul Murmu assaulted him with the fist and slaps.
Longra Pawaria gave a knife blow in his abdomen whereby the informant
Pandu Hembram sustained injury in left side of his abdomen. The persons
who were present at the place of occurrence made effort to catch hold of the
accused person but both the accused managed to flee away from there. On
this written information, P.S. Case No. 0033 of 2006 on 23.06.2006 was
registered under sections 341, 323, 504, 324, 307 r/w 34 of IPC against the
accused Longra Pawaria and Baijul Murmu with the police station Ranga.
3. The investigating officer after completing the investigation
filed charge-sheet against both the accused for the offence under sections
341, 323, 504, 324, 307 r/w 34 of IPC in the court of the learned ACJM,
Rajmahal who took the cognizance on the charge-sheet and the offence
being triable by the court of session was committed to the court of learned
Sessions Judge, Sahibganj for trial.
4. The trial court framed charge against the accused persons for
the offence under section 341 r/w 34, 323 r/w 34, 324 r/w 34, 307 r/w 34
and 504 r/w 34 of IPC against both the accused Longra Pawaria and Baijul
Murmu. The charge was read over and explained to both the accused
persons, both pleaded not guilty and claimed to face the trial.
5. On behalf of prosecution to prove the charge against both the
accused persons in oral evidence examined eleven (11) witnesses.
PW1- Somai Hembram, PW2- Fudan Hembram, PW3- Pandu
Hembram, PW4- Kartick Hembram, PW5- Saiba Hembram,
PW6- Somai Hembram s/o late Lakia Hembram, PW7- Dulhan
Murmu, PW8- Rani Tuddu, PW9- Chundai Hembram, PW10- Lalan
Prasad and PW11- Doctor Amitesh Ranjan Srivastava.
6. On behalf of prosecution in documentary evidence filed FIR-
exhibit-1, written information/fardbeyan exhibit-2, injury slip of Pandu
Hembram exhibit-3, the letter of Station Officer of Ranga to Medical
3 Cr. Appeal (SJ) No. 373 of 2011
Officer, Primary Health Centre, Ranga who examined the injury of Pandu
Hembram exhibit-4, supplementary injury report of Pandu Hembram
exhibit-4/1.
7. The statement of the accused persons under section 313 of
Cr.PC were recorded. Both the accused persons denied the incriminating
circumstances in evidence against them and no defence evidence was
adduced on behalf of accused persons.
8. The learned trial court after hearing the rival submissions of
learned counsel of both the parties passed the impugned judgment dated
19.01.2011 and acquitted the accused Baijun Murmu for the charge framed
against him; while convicted Longra Pawaria for the charge under section
326 of IPC and sentenced with rigors imprisonment of six years and a fine
of Rs.1,000/-. In default of payment of fine, further simple imprisonment of
three months was directed to undergo.
9. Aggrieved from the impugned judgment of conviction and
sentence dated 19.01.2011 and 21.01.2011 respectively, this criminal appeal
was directed on behalf of appellant/convict Longra Pawaria on the ground
that the impugned judgment of conviction and sentence was bad in the eye
of law. The court below has not appreciated the evidence on record in proper
perspective. The witness PW4, PW5 and PW9 have stated in their statement
that they had not given any statement to the police during investigation.
Therefore, their testimony before the trial court cannot be believed. The
court below had failed to appreciate the evidence of PW10 Lalan Prasad
investigating officer who stated that he neither had seized any weapon nor
had stated the source of light at the place of occurrence which makes the
prosecution story doubtful. All the witnesses are the interested witness, their
testimony cannot be believed since the same is not corroborated with
testimony of any independent witness. The x-ray plate and the report of
radiologist has not been brought on record. As such, the impugned judgment
of conviction and sentence is not sustainable in the eye of law.
10. In order to decide the legality and propriety of the impugned
judgment of conviction and sentence, the evidence oral and documentary
adduced on behalf of the prosecution is reproduced hereinbelow:
PW1- Somai Hembram in his examination-in-chief says that
the two and half years had passed, when the occurrence took place. In
4 Cr. Appeal (SJ) No. 373 of 2011
between 7 to 8 in the night he had gone for the dinner near the chapakal. His
brother Pandu Hembram was given knife blow by Longra Pawaria on the
left side of his abdomen. The doctor in Kendua had given treatment him
Alongwith Longra Pawaria, Baijun Murmu was also there. This witness
identified both the accused Longra Pawaria and Baijun Murmu.
In cross-examination this witness says at 8 O'clock in the
morning had gone for hunting and came back 2 to 3 O'clock after hunting.
The khichri was prepared. In the north of place of occurrence is Talmari
Station, in south is the house of Chandan, in east is the house of Kartick, in
west is the house of which name of the owner is not known to him. He did
not make effort to nab the accused. At that time, he was not present
there.
PW2- Fudan Hembram in his examination-in-chief says that
three years had passed when the occurrence took place. It was 11 O'clock of
night in the village Aamjhor near the chapakal, Longra Pawaria gave a knife
blow on the abdomen of Pandu Hembram with intention to cause his
murder. The quarrel arose on the issue to participate in the khichri of the
hunted banbillar. Baijun Murmu was also with Longra Pawaria but Baijun
did nothing.
In cross-examination this witness says the informant is his
brother. They are five brothers. The elder brother had died, the rest are he,
Kundan, Somai, Pandu and Thakur jivitahu, all resides separate. He was
present in the dinner which lasted at 11 O'clock. He had given statement to
the police that Longra Pawaria had given a knife blow with intent to kill
Pandu Hembram. In east of the place of occurrence is his house, in west is
chapakal, in north is the road and in south is road. The blood was also at the
place of occurrence. The police has taken blood in its custody from the
place of occurrence. There was blood on the pant of Pandu. Only one knife
blow was given to Pandu whereby he also became senseless. He regain
senses after eight to ten days.
PW3- Pandu Hembram is the victim himself. This witness has
stated that two years nine months had passed when the occurrence took
place. At 11 O'clock of day time he had gone for hunting and they hunted
wild animal (banbillar). Khichri of the same was prepared in the night. It
was 11:30 O'clock of night. Longra Pawaria came and he gave a knife blow
5 Cr. Appeal (SJ) No. 373 of 2011
in his abdomen. Longra Pawaria fled away from there, he became senseless.
He was taken to the hospital for treatment.
In cross-examination this witness says at the time of occurrence
there were 16 to 17 persons among them were Kartick Hembram, Lakhan
Pawaria, Chawhal Pawaria, Kornel Pawaria Pradhan, Soley Hembram. He
regained senses after 5 to 6 days in the hospital. The accused had fled away
after having given knife blow to him. In the north of the place of occurrence
is land of Paharia. In south is the house of Kartick, in east is the house of
Bhajan, in west is the chapakal. No marpeet was done by Baijun to him.
PW4- Kartick Hembram in his examination in chief says that
the occurrence is of 4 years ago. It was 10 O'clock of night. In adjoining to
his house, he, Saiba Hembram, Somai Hembram total 10 to 12 persons were
preparing Khichri. All had gone for hunting and had hunted wild animal
(banbillar). Longra Pawaria came and he began to quarrel with Pandu
Hembram and he gave a knife blow on the abdomen of Pandu Hembram
whereby he sustained injuries.
In cross-examination this witness says that where the khichri
was preparing occurrence took place at the distance of 10 to 12 hands.
Somai and Saiba were present at the place of occurrence. No one nabbed
Longra. Police did not take his statement.
PW5- Saiba Hembram in his examination-in-chief says the
occurrence is of year 2006 it was month of June, time was 11:30 of night.
He alongwith 10 to 12 persons of the village had gone for hunting Somai
Hembram, Pandu Hembram, Chandu Hembram, Kartick Hembram etc went
for hunting. One wild animal (banbillar) was hunted. The khichri was
prepared at the house of Chandan Pawaria. Longra Pawaria and Baijul both
were not present at the time of hunting. Both demanded share in the khichri,
same was opposed and Longra Pawaria gave a knife blow to Pandu
Hembram. Baijul also slapped Pandu. In cross-examination this witness says
Pandu regain senses after 3 or 4 days in the hospital. At the place of
occurrence there were Chandu, Kartick, Somai, Munu, Chandan, Stiphen,
more than 10 to 12 persons.
PW6- Somai Hembram in examination-in-chief says that the
occurrence is of 4 years ago. It was 11 O'clock of night after having hunted
wild cat - the khichri was being prepared. Baijul and Longra Pawaria were
6 Cr. Appeal (SJ) No. 373 of 2011
not in hunting. Baijul and Longra both demanded share in khichri. The
dispute arose, Longra gave a knife blow in the abdomen of Pandu.
In cross-examination this witness says at the place of
occurrence there were about 25 persons. Pandu regained sense in the
hospital after 3 to 4 days. Police did not take his statement.
PW7- Dulhan Murmu in her examination-in-chief says the
occurrence was of 4 years ago it was 11 O'clock of night. She was at her
house. Heard the alarm and went to the place of occurrence and saw Pandu
was laying senseless. He had injury caused by the knife. He had received the
knife blow in his abdomen. The knife blow was given by Longra.
In cross-examination this witness says when she reached at the
place of occurrence she saw only Pandu there. When she reached there no
one was seen there. Police had not recorded his statement.
PW8- Rani Tuddu in her examination-in-chief says that the
occurrence was of 4 years ago. It was 11 O'clock of night she was at the
house and hearing the alarm she went at the place of occurrence and saw
there Baijul was slapping to Pandu and Longra had given a knife blow to
Pandu. Pandu injured and thereafter became senseless. The cause of dispute
was demand of share in khichri.
In cross-examination this witness says that she is wife of
Pandu. When she reached at the place of occurrence the quarrel was going
on. 6 to 7 persons were present there among them were Kartick Hembram
and Fudan Hembram, Saiba Hembram, Somai Hembram etc. Chundai
Hembram was also there. No one had catch hold of accused. Both fled away.
She had seen the knife. The knife was not taken in custody by police.
PW9- Chundai Hembram in his examination-in-chief says
that the occurrence was of 4 years ago. It was 11 O'clock night. The wild
animal (banbillar) was hunted, khichri was being prepared. Longra Pawaria
had given a knife blow to Pandu in his abdomen.
In cross-examination this witness says the persons who were
present at the place of occurrence no one make effort to nab the accused. He
did not see from his own eye giving knife blow to Pandu.
PW10- Lalan Prasad is the investigating officer on 23.06.2006
he was Sub-Inspector in police station Ranga. Ranga P.S. Case No. 33 of
2006 was registered with police station concerned. The investigation of the
7 Cr. Appeal (SJ) No. 373 of 2011
same was handed over to me. The formal FIR of the same was written by
Munsi Ji which is exhibit-1. The same was endorsed by Officer-in-charge
Rajiv Nayan marked exhibit-2. The place of occurrence is the house of
Chandan Pawaria in village Aamjhor. At the place of occurrence he also
found the stove made of bricks (eit ka chulha). In the east of the place of
occurrence was the house of Chandan Pawaria at the distance of 50 yards, in
west is the land of Manu Hembram, in the north is the house of informant
and other persons. In south is the road goes toward Badharwa. He recorded
the restatement of Pandu Hembram, also recorded the statement of Rani
Tuddu, Dulhan Murmu, Somai Hembram, Fudan Hembram, Somai
Hembram son of late Lakia Hembram, Saiba Hembram, Kartick Hembram,
Chundai Hembram. The letter written by the officer-in-charge of the police
station concerned was taken for examination of Pandu Hembram taken. He
filed charge-sheet. No weapon was recovered by him. In cross-examination
this suggestion was denied by this witness given on behalf of the defense
that no such occurrence was taken place and he prepared the case diary at
the police station and filed the charge-sheet.
PW11- Doctor Amitesh Ranjan Srivastava in examination-in-
chief says on 23.06.2006 he was posted at Patna Primary Health Centre as
Medical Officer in charge. On that date at 3:00 AM he examined Pandu
Hembram son of late Chunda Hembram and found following injuries:
Penetrating wound over the left lower abdomen size 1/2" x
1/4" into depth could not be ascertained due to the fear of more damage
to the internal organ.
Opinion about nature of injury was reserved for want of
x-ray abdomen or ultra sound of the abdomen.
Injury report is in his handwriting bears his signature
marked Ext.4. Supplementary injury report of Pandu Hembram was
prepared on 26.06.2006.
After seeing the x-ray report of Pandu Hembram injury
was found grievous. The report is also in his pen and signature marked
exhibit-4/1. In cross-examination this witness says that x-ray plate is not
attached with exhibit 4/1.
11. I have heard the rival submissions made by the learned Amicus
Curiae on behalf of appellant and learned APP on behalf of State and
8 Cr. Appeal (SJ) No. 373 of 2011
perused the material on record.
12. For disposal of this appeal following point of determination is
being framed:
(i) Whether the impugned judgment of conviction and
sentence passed by the court below is sustainable in the eye of law in
view of the evidence on record.
13. This court averts to the evidence oral and documentary adduced
on behalf of prosecution to prove the charge against the appellant/ convict
which is being analyzed and re-appreciated hereinbelow:
14. Herein it would be pertinent to reproduce certain statutory
provisions of I.P.C. 1860 given hereinbelow:
"Section 320. Grievous hurt: The following kinds of hurt only
are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear,
Fourthly.--Privation of any member or joint.
Fifthly.--Destruction or permanent impairing of the powers of
any member or joint.
Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the
sufferer to be during the space of twenty days in severe bodily
pain, or unable to follow his ordinary pursuits."
"Section 322. Voluntarily causing grievous hurt.- Whoever
voluntarily causes hurt, if the hurt which he intends to cause or
knows himself to be likely to cause is grievous hurt, and if the
hurt which he causes is grievous hurt, is said "voluntarily to
cause grievous hurt."
Explanation.--A person is not said voluntarily to cause grievous
hurt except when he both causes grievous hurt and intends or
knows himself to be likely to cause grievous hurt. But he is said
voluntarily to cause grievous hurt, if intending or knowing
himself to be likely to cause grievous hurt of one kind, he
actually causes grievous hurt of another kind."
"Section 326. Voluntarily causing grievous hurt by dangerous
weapons or means: Whoever, except in the case provided for by
section 335, voluntarily causes grievous hurt by means of any
instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or
by means of fire or any heated substance, or by means of any
poison or any corrosive substance, or by means of any explosive
substance, or by means of any substance which it is deleterious
to the human body to inhale, to swallow, or to receive into the
blood, or by means of any animal, shall be punished with
1[imprisonment For life], or with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine."
15. The prosecution case is based on direct evidence. In case of
9 Cr. Appeal (SJ) No. 373 of 2011
direct evidence the motive of the occurrence has no significance.
However if the motive is given in prosecution story itself then its
evidence becomes relevant. As per prosecution case the occurrence took
place on the issue of participation in the khichri of the wild animal
(banbillar) which was brought after hunting by the deceased alongwith
other aide. As per prosecution cases the appellant/convict had not
accompanied the deceased and his aide in hunting of the wild animal i.e.
banbillar, rather he alongwith his associate Baijul Murmu reached at the
place where the khichri of the hunted banbillar was being prepared and
demanded his share in the khichri. The appellant Longra Pawaria gave a
knife blow in the abdomen of injured Pandu Hembram. This motive is well
corroborated with the testimony of Fudan Hembram who stated that the
dispute arose to have share in the food prepared after hunting of banbillar.
He was also present at the time of occurrence. PW4- Kartick Hembram,
PW5- Saiba Hembram, PW6- Somai Hembram, PW9- Chundai
Hembram, all these witnesses have also corroborated this cause of
occurrence that the wild animal (banbillar) which was being hunted by the
injured alongwith his other aide, the khichri of the same was being prepared
and in the same share was demanded by Longra Pawaria. Same was
opposed by the injured Pandu Hembram and on this very issue the
occurrence took place. As such, the motive of the occurrence is found
proved.
15.1 The Hon'ble Apex Court held in "Sunil Kumar v. State of UP"
(2010) 2 SCC 5:
"7. Mr Amarendra Sharan, learned Senior Counsel who
appeared in both the appeals attacked the judgment of the High
Court and the trial court firstly, contending that there was
absolutely no reason for the accused persons to assault the
deceased and no motive has been attributed to all these accused
persons. The learned counsel suggested that basically the story
of the prosecution in the absence of any apparent motive became
extremely doubtful. We are not impressed by this submission
since motive in a criminal case is irrelevant where evidence of
the eyewitnesses is available. In this case, there were as many as
three eyewitnesses one of whom was the father of the deceased.
Therefore, the question of absence of motive would have no
importance whatsoever."
16. So far as the commission of the offence under section 326 of
IPC is concerned. The injured eye witness who is victim himself PW3-
10 Cr. Appeal (SJ) No. 373 of 2011
Pandu Hembram has stated that at 11:30 O'clock of night Longra Pawaria
came at the place where the khichri was being prepared of the hunted
banbillar and he also stated that at the time of occurrence Kartick
Hembram, Lakhan Pawaria, Chawhal Pawaria, Kornel Pawaria Pradhan
Soley Hembram were also present. He also stated that Longra Pawaria
gave a knife blow to him and he became unconscious thereafter. The
accused Longra Pawaria fled away after giving a knife blow to him.
16.1. PW1- Somai Hembram also stated that Longra Pawaria gave
a knife blow in the left side of abdomen of his brother Pandu Hembram.
16.2. PW2- Fudan Hembram also stated the occurrence was of near
chapakal in Aamjhor village at 11 O'clock of night. Longra Pawaria gave a
knife blow to Pandu Hembram in his stomach. He stated that only one knife
blow was given to Pandu Hembram and Pandu Hembram became senseless
thereafter. He regained senses after 8 to 10 days in the hospital.
16.3. PW4- Kartick Hembram also stated that at the time of
occurrence the khichri was being prepared after hunting of banbillar. Longra
Pawaria came and he began to quarrel with Pandu Hembram. He gave a
knife blow to Pandu Hembram in his left side of abdomen whereby he
sustained injuries. He also stated that Longra Pawaria was not nabbed by
any of the person at the place of occurrence.
16.4. PW5- Saiba Hembram says that Longra Pawaria gave a knife
blow in the abdomen of Pandu Hembram. At the time of occurrence Chandu
Hembram, Kartick Hembram, Somai Hembram, another Somai Hembram,
Manu Chandan, Stifan more than 10 to 12 persons were there. Knife blow
was given to Pandu Hembram whereby he became unconscious. He
regained senses in the hospital.
16.5. PW6- Somai Hembram son of late Lakia Hembram also
stated that dispute arose on the issue of demand in khichri and Longra
Pawaria gave a knife blow to Pandu Hembram in the abdomen who became
unconscious.
16.6. PW8- Rani Tuddu also stated that at the time of occurrence
she was at her house hearing hulla she reached there and saw Longra
Pawaria who inflicted a knife blow in the abdomen of Pandu Hembram.
Pandu Hembram became injured and he became unconscious. The blood
was oozing. The cause of occurrence was that Longra Pawaria who had not
11 Cr. Appeal (SJ) No. 373 of 2011
gone for hunting was demanding share in the khichri. When she reached at
the time of occurrence there were Kartick Hembram, Kundan Hembram,
Saiba Hembram, Somai Hembram etc. Chundai Hembram was also there.
17. All these are the eye witness of the occurrence and have
seen the appellant convict giving a knife blow in the abdomen of injured
Pandu Hembram. Causing grievous hurt voluntarily is proved from the
testimony of all these witnesses who have stated that on the very issue of
demanding share in the khichri of the hunted banbillar i.e. wild animal
Longra Pawaria gave a knife blow in the abdomen of Pandu Hembram.
Therefore, this ingredient of the offence under section 326 of IPC is
also made out from the evidence on record. The injury was endangering
to life of injured.
18. So far as the contention of the learned Amicus Curiae on behalf
of the appellant that the witness PW4- Kartick Hembram, PW5- Saiba
Hembram, PW6- Somai Hembram son of late Lakia Hembram have
stated that no statement was given by them to the police under section
161 of Cr.PC. This plea raised by learned counsel for the appellant is
not found tenable in view of the testimony of PW10- Lalan Prasad,
investigating officer. This witness has stated that during investigation he
recorded the restatement of Pandu Hembram and also recorded the
statement of Rani Tuddu, Dulhan Murmu, Somai Hembram, Fudan
Hembram, Somai Hembram son of late Lakia Hembram, Saiba
Hembram, Kartick Hembram and Chundai Hembram. In cross-
examination on behalf of defense no cross-examination was done on this
point even no suggestion was given that the witness PW4- Kartick
Hembram, PW5- Saiba Hembram, PW6- Somai Hembram son of late Lakia
Hembram have not given a statement under section 161 of Cr.PC to this
witness i.e. investigating officer Lalan Prasad. The testimony of all these
eye witnesses is also corroborated with the testimony of PW7- Dulhan
Murmu, PW9- Chundai Hembram who also reached at the place of
occurrence and found Pandu Hembram injured who had sustained
knife injury in his abdomen and they also stated that they came to know
at the place of occurrence that Longra Pawaria had given knife blow to
him on the issue of participation in the khichri which was prepared of
the hunted banbillar.
12 Cr. Appeal (SJ) No. 373 of 2011
19. The ocular evidence adduced on behalf of the prosecution is
also well corroborated with the medical evidence. PW11- Dr. A.R.
Srivastava was examined on behalf of the prosecution. This witness in his
examination-in-chief stated that on 23.06.2006 he was posted at Patna
Primary Health Centre as Medical Officer in charge. On that date at 3:00
AM he examined Pandu Hembram son of late Chunda Hembram, r/o
Aamjhor PS Ranga, District Sahibganj and found following injuries:
Penetrating wound over left abdomen size 1/2" x 1/4" depth
could not be ascertained due to fear of more damage to the internal
organ.
This witness also stated that injury report was prepared by
him and the same was in his handwriting marked exhibit-4. He also stated
that in view of the x-ray report the injury was grievous in nature and
was dangerous to life. He also marked this x-ray report as exhibit-4/1.
Therefore, the ocular evidence is well corroborated with the medical
evidence and it is found that the injury inflicted to the injured Pandu
Hembram was dangerous to life.
20. Therefore, all the ingredient for the offence under section
326 of IPC is made out from the evidence adduced on behalf of
prosecution.
21. The learned Amicus curiae on behalf of the appellant also
submitted that the knife which is alleged to be used in commission of the
offence was not recovered and same was not produced in evidence.
Admittedly the knife was not recovered by the investigating officer
during investigation and same was not produced in evidence. But the
same is not found fatal reason being the prosecution case is based on
direct evidence and in a case of direct evidence, the recovery of the
weapon if not made the same cannot be said fatal to the prosecution
case, if the prosecution case is proved from the trustworthy and cogent
evidence of the eye witnesses.
21.1 The Hon'ble Apex Court held in "Mohd. Jamiludin Nasir v.
State of W.B" (2014) 7 SCC 443:
"57. As far as the contention made on behalf of the appellant
that non-production of the weapon used in the attack is fatal to
the case of the prosecution is concerned, the reliance placed by
the learned Additional Solicitor General upon the decision in
13 Cr. Appeal (SJ) No. 373 of 2011
Ram Singh v. State of Rajasthan [Ram Singh v. State of
Rajasthan, (2012) 12 SCC 339 : (2013) 4 SCC (Cri) 661] would
meet the said contention. In paras 8 and 10, this Court has also
held that the non-production of the weapon used in the attack is
neither fatal to the prosecution case nor any adverse inference
can be drawn on that score. Therefore, the said submission is
also rejected."
22. The Hon'ble Apex Court held in "Vijay Shankar Shinde v.
State of Maharashtra" (2008) 2 SCC 670:
"9. The trial court was not justified in holding that because PW
11 was an injured witness he may have reason to falsely
implicate the accused. However, as rightly observed by the trial
court and the High Court, the evidence of PWs 12 and 13 does
not suffer from any deficiency. PWs 11, 12 and 13 were cross-
examined at length but nothing substantial could be elicited to
destroy the credibility of their version. As a matter of fact, the
evidence of injured person who is examined as a witness lends
more credence, because normally he would not falsely implicate
a person thereby protecting the actual assailant."
22.1 The Hon'ble Apex Court held in "Bhanwar Singh v. State of
M.P." (2008) 16 SCC 657:
"68. When implicit reliance is placed on eyewitnesses, some
embellishment in the prosecution case caused by reason of
evidence of any of the prosecution witnesses although not
declared hostile by itself cannot be a ground to discard the
entire prosecution case. Each case must be judged on its own
facts. For appreciation of evidence, there cannot be any hard-
and-fast rule. This aspect of the matter has been considered in
Dharmendrasinh v. State of Gujarat wherein it was held: (SCC
p. 693, para 16)
"16. ... She did go and on return as soon as she entered
into the house, she raised alarm, this part of statement is
supported by PW 7 also, but for the fact that according to
him on his arrival, he found no one else at the scene of
occurrence. It would be a matter of minutes or a fraction
thereof, if the accused had at once left the place by the
other door, the moment he heard the alarm of PW 3. PW 7,
though a neighbour, lives in a different house and by the
time he reached, it is not unlikely that he may have missed
the appellant who had left the spot. Therefore, on the basis
of the mere statement of PW 7 that on his arrival he found
no one else it cannot be said that PW 3 told a lie while
stating that her husband had slipped away from the other
door on hearing her cries. At the same time, we also find
no good reason to suspect that she would falsely implicate
her husband for the killing of their sons by someone else.
The real assailants of her own children would not be
spared."
22.2. The Hon'ble Apex Court held in "Satish Narayan Sawant v.
State of Goa" 2009 (17) SCC 724:
"33. On being cross-examined, PW 7 categorically stated that
14 Cr. Appeal (SJ) No. 373 of 2011
death due to stab injury was in consequence of Injury 1 and all
other injuries were superficial in nature. There is no doubt that
four injuries are indicated in the post-mortem report shown to
have been received by the deceased but the fact that the
deceased was given stab injuries by the appellant with the help
of a knife brought by him from inside the house is clearly
established from the ocular evidence. There is therefore one
particular injury, being Injury 1, caused because of stabbing and
the rest being superficial in nature could be caused during
scuffle. Therefore, the alleged discrepancy cannot be said to be
very vital as it has been held by this Court in several decisions
that ocular evidence cannot be brushed aside only because, to
some extent, it is not in consonance with the medical evidence.
Reference in this regard may be made to the decisions of this
Court in State of U.P. v. Krishna Gopal, Anwar v. State of
Haryana, Ravi Kumar v. State of Punjab and Munivel v. State of
T.N."
23. The contentions made by learned Amicus Curiae on behalf of
appellant that the blood stained was not taken into custody by the
investigating officer and same was not sent to FSL. The latches on part of
the investigating officer is not found fatal because the place of occurrence is
well proved from the testimony of eye witness and also from statement of
investigating officer as well. Therefore, on this latches on the part of
investigating officer, the whole of the prosecution case cannot be discredited
keeping in view the cogent and trustworthy evidence of the eye witnesses.
24. In view of the analysis of the evidence adduced on behalf of the
prosecution and also keeping in view the statutory provisions and the settled
legal propositions of law as laid down by the Hon'ble Apex court as given
hereinabove, I am of considered view that the prosecution has
successfully proved its case against the appellant/convict beyond
reasonable doubt and the impugned judgment of conviction and order
of sentence passed by the court below needs no interference and this
criminal appeal deserved to be dismissed.
25. This criminal appeal is, hereby, dismissed. The impugned
judgment of conviction and order of sentence passed by the court below
is, hereby, confirmed.
26. The appellant/convict is on bail, his bail bonds are cancelled
and the sureties are discharged from there liabilities. The appellant is
directed to surrender before the trial court. The trial court is also directed to
ensure the arrest of the appellant and to send him jail to serve out the
sentence inflicted in the impugned judgment of conviction and sentence.
15 Cr. Appeal (SJ) No. 373 of 2011
27. Let the record of learned lower court be sent back alongwith
copy of judgment for necessary compliance.
(Subhash Chand, J.)
Jharkhand High Court, Ranch
RKM
AFR
