Jharkhand High Court

Sunder Pahan vs The State Of Jharkhand on 6 May, 2024

Author: Ananda Sen

Bench: Ananda Sen

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr. Appeal (D.B.) No. 379 of 2020
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(Against the Judgment of Conviction and Order of Sentence
dated 08.05.2018 and 11.05.2018 respectively passed by the
learned District & Additional Sessions Judge-I, Khunti in S.T.
Case No. 766 of 2012)
                        ------------

Sunder Pahan, son of Late Samu Pahan, resident of Sarjoma,
P.O. Khunti & P.S. Khunti, District-Khunti (Jharkhand)
                          ...          ...      ...Appellant
                          -Versus-
The State of Jharkhand ...             ...      ...Respondent
                     ---------
                   PRESENT
                SRI ANANDA SEN, J.

SRI SUBHASH CHAND, J.

For the Appellant : Mr. Kumar Vaibhav, Advocate For the State : Mrs. Lily Sahay, A.P.P.

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Order No.09/Dated: 06.05.2024 Per Subhash Chand, J.

The instant Criminal Appeal is directed against the

Judgment of Conviction dated 08.05.2018 and Order of Sentence

dated 11.05.2018 passed by the District and Additional Sessions

Judge-I, Khunti in S.T. Case No. 766 of 2012, arising out of

Khunti P.S. Case No. 57 of 2012 whereby the accused-Sunder

Pahan was convicted for the offence under Sections 302 of the

Indian Penal Code and sentenced to undergo Rigorous

Imprisonment for life and to pay fine of Rs.20,000/-. In default of

payment of fine appellant/convict has to further undergo S.I. for

six months under Section 302 of the Indian Penal Code.

2. The brief facts of the prosecution case leading to this Cr.

Appeal are that the fardbayan of the informant Manki Pahan was recorded in which the allegations are made that on 27.05.2012 at

04 O'clock she was at her house and her husband Suku Pahan

was manufacturing wooden window at the door of the house. At

the same time, the son of her brother-in-law (Bhainsur) Sunder

Pahan came and assaulted with Tangi on the head of her husband

from the backside of Tangi. Thereafter he went and again came

after some time and gave again the blow with the Tangi to her

husband with intent to commit murder of him whereby neck of

her husband was cut and died at the spot. She raised alarm.

Persons of the village also attracted there and nabbed Sunder

Pahan along with Tangi. Sunder Pahan also sustained some

injury in this sequence. On this fardbayan, Khunti case crime No.

57 of 2012 was registered under Section 302 of I.P.C. against

Sunder Pahan.

3. The I.O. concluded the investigation and filed charge-sheet

against Sunder Pahan to the Court of Magistrate concerned who

took cognizance on the charge-sheet and committed the case for

trial to the Court of Sessions Judge, Khunti who further

transferred the same for trial to the Additional Session Judge-I.

4. The trial court framed charge against Sunder Pahan under

Section 302 of I.P.C. and charge was read over the explained to

him. He denied the charge and claimed to face the trial.

5. On behalf of prosecution in oral evidence examined P.W.1

Ghasiray Munda, P.W.2 Sahdeo Munda, P.W.3 Anudeep Singh,

I.O. of this case, P.W.4 Jitray Munda, P.W.5 Sanika Munda,

P.W.6 Dr. Sunil Khalkho and P.W.7 Manki Pahanain and in

documentary evidence filed Ext.1 (signature of Ghasiray Munda

(P.W.1) over the inquest report), Ext.2 (signature of Anudeep

Singh (P.W.3) over the fardbayan), Ext.3 (inquest report), Ext.4

(seizure list), Ext.5 (entire postmortem report).

6. The statement of the accused under Section 313 of Cr. P.C.

was recorded in which he denied the incriminating circumstances

against him and told himself to be innocent.

7. The learned trial court after hearing the rival submission of

learned Counsel of parties, passed the impugned Judgment of

Conviction as stated hereinabove.

8. Aggrieved from the impugned Judgment of Conviction and

Sentence, the instant Cr. Appeal has been directed on behalf of

appellant.

9. We have heard the learned Counsel of parties and perused

the materials on record.

10. The learned Counsel for the appellant has submitted that

the prosecution case is based on direct evidence. The eye-witness

of the occurrence is the wife of the deceased. Her testimony is not

corroborated with the medical evidence as she has stated that the

second blow was given from the sharp side of Tangi whereby his

neck was cut but same is not corroborated with the medical

evidence as the Doctor has shown only two lacerated wounds.

Further the testimony of the sole eye-witness is also tainted as

she stated that the appellant/convict had given blow with Tangi

on account of mental illness. In view of the above contented to

allow the appeal and to set aside the impugned Judgment of

Conviction and Sentence.

11. The learned A.P.P. vehemently opposed the contentions

made by the learned Counsel for the appellant.

12. The prosecution has examined altogether 07 witnesses.

12.1 P.W.1 is Ghasiray Munda. He in his Examination-in-chief

says that he knows nothing in regard to the occurrence. Suku

Pahan died. How he died he is not aware. He identified his

signature on the inquest report. This witness was declared

hostile by the prosecution and was cross-examined and he

denied his statement under Section 161 of Cr.P.C. given to the

I.O.

12.2 P.W.2 is Sahdeo Munda. This witness has stated that he

knows nothing in regard to the occurrence. Police did not record

his statement. He heard that Sunder Pahan had assaulted with

Tangi to Suku. In cross-examination this witness says that he

came to know in regard to the occurrence when he came to

the village that Suku has been murdered.

12.3 P.W.3 Anudeep Singh is the Investigating Officer. He says

that on 28.05.2012 he was In-charge Station Officer of Police

Station, Khunti. He took over the investigation of case crime No.

57 of 2012 on 28.05.2012 under Section 302 of I.P.C. He after

having recorded the fardbayan of informant, he recorded his

restatement. He found the dead body of Suku Pahan at the place

of occurrence also nabbed Sunder Pahan. Thereafter he recorded

fardbayan of informant. He identified his signature on the

fardbayan marked Ext.2. He also prepared the inquest report of

deceased which bears his signature marked Ext.3. He prepared

the seizure memo of the Tangi recovered from the place of

occurrence and the blood-stained soil. Seizure memo bears his

signature and he marked Ext.4. The witness of the seizure memo

was Ghasiray Munda and Harshketu Munda. He recorded the

statement of Ghasiray Munda, Sahdeo Munda, Chitray Munda,

Sanika Munda. All corroborated the prosecution story. He got

conducted the postmortem of deceased and thereafter filed the

charge-sheet. In cross-examination this witness says that in the

seizure memo he did not mention the size of Tangi. That

Tangi is not produced in the Court today. The blood-stained

soil was never sent by him for examination to F.S.L.

12.4 P.W.4 is Jitray Munda in his Examination-in-chief says

that Suku Pahan is known to him. He died. How he died he is not

aware. Police did not interrogate him. This witness was declared

hostile and denied the statement under Section 161 of Cr.P.C.

given to the I.O.

12.5 P.W.5 Sanika Munda in his Examination-in-chief says that

Suku Pahan was murdered. He did not see the murder. He was at

the agriculture field but came to know in the village from the

people that Sunder Phan had been murdered. Police did not

interrogate him.

12.6 P.W.6 Dr. Sunil Khalkho in his Examination-in-chief says

that on 28.05.2012 at 9:00 p.m. he was posted at Sadar Hospital,

Khunti as Medical Officer. He conducted the postmortem of dead-

body of deceased-Suku Pahan and found the following injuries:

i. Lacerated wound on scalp over occipital region. Size 6" x 4" x 3".

ii. Lacerated wound on left parietal bone size 2" x 3". All the injuries were antemortem in nature & death occurred due to haemorrhage and shock.

Time elapsed since P.M. examination 12-48 hours from P.M. This P.M. report is written and prepared by him under his pen and signature which he identified and same is marked as Ext.5.

In cross-examination this witness says that injury may be caused by hard and blunt substance that may be occurred due to road accident. Such injuries cannot be caused from the back side of axe. Such injury cannot be caused by sharp portion of axe.

He has not mentioned that the injuries found were antemortem in nature.

12.7 P.W.7 is Manki Pahnain. She in her Examination-in-chief

says that the occurrence was of 05-06 years ago. It was evening.

Her husband was assaulted by Sunder Pahan with Tangi from the

backside. Her husband fell down on the ground. Again, Sunder

Pahan assaulted from the edge side of Tangi. Her husband died

at the spot. Sunder Pahan fled towards the river and was nabbed

by the villagers. Police also nabbed Sunder Pahan thereafter. Her

statement was recorded by the Police. She put her thumb

impression thereon. She identified Sunder Pahan who is son of

her brother-in-law (Bhainsur). In cross-examination this witness

says that there was no dispute between them and Sunder Pahan.

Sunder Pahan was little bit insane. On account of his insanity, he

murdered her husband. At the time of occurrence, she and her

husband were alone. Only she and her husband were present at

the place of occurrence. Police recorded her restatement. It is

wrong to say that Sunder Pahan is innocent.

13. The prosecution had examined altogether 07 witnesses. Out

of them P.W.1 Ghasiray Munda is the hostile witness. P.W.2 is

Sahdeo Munda. Testimony of Sahdeo Munda is based on

hearsay. P.W.4 Jitray Munda is hostile witness. P.W. 5 Sanika

Munda is hearsay witness.

14. The conviction of the appellant is based on the sole

testimony of the eye-witness P.W.7 Manki Pahanain who is

informant. This witness P.W.7 Manki Pahanain is the wife of

deceased. As per prosecution case, the place of occurrence is the

house of informant where at the time of occurrence only the

informant and her husband were present at the house. All of a

sudden, the appellant/convict Sunder Pahan came armed with

Tangi and he gave blow to her husband who fell down on the

ground. Thereafter Sunder Pahan went back and came again

within few times and again gave a blow from the edge side of Tangi

whereby her husband died on the spot and was lying in pool of

blood. This witness has also stated that Sunder Pahan had given

the blow with Tangi to her husband on account of his insanity.

14.1 The learned Counsel for the appellant has argued that in

view of the testimony of the sole eye-witness P.W.7 Manki

Pahanain, there is no criminal intent on the part of the appellant

as he had given the blow on account of insanity.

This argument of learned Counsel for the appellant is not

found tenable since on behalf of the defence while cross-

examining this witness or other prosecution witnesses no

suggestion was given that the appellant/convict Sunder Pahan

was mentally ill or insane. Further the statement of

appellant/convict Sunder Pahan was recorded under Section 313

of Cr.P.C. Though he denied the incriminating circumstances in

evidence against him, yet he did no say that he was insane on the

date of occurrence. Simply saying by the P.W.7 eye-witness

Manki Pahanain that Sunder Pahan had committed murder of

her husband on account of insanity, it cannot be accepted that

the appellant was insane because there is no medical evidence

to this effect. Neither this plea was raised on behalf of the

appellant/convict during the trial nor any medical evidence

was adduced to this effect. Therefore, on the single line which

this eye-witness P.W.7 has stated that Sunder Pahan has

assaulted on account of insanity, her testimony which is found

quite natural and trustworthy, cannot be discarded. It is settled

that the testimony of a witness is to be read as a whole, it

cannot be discarded relying upon any single line in the

statement.

14.2 The Hon'ble Apex Court also held in Prem Prakash @ Lillu

& Anr. vs State of Haryana (2011) 11 SCC 687 in para 19 as

under:

19. The evidence, essentially, must be viewed collectively. The statement of a witness must be read as a whole. Reliance on a mere line in the statement of the witness, out of context, would not serve the ends of justice and the conclusion of the court based on such appreciation of evidence could be faulted.

14.3 Further so far as the criminal intent of the appellant/convict

is concerned, the same is reflected from the act and conduct

of the appellant as after having given the first blow from the

backside of the Tangi, he went and came again and gave the

blow with Tangi to the husband of the informant. The second

blow given by the appellant/convict till death of the deceased

reflects the criminal intent of the appellant/convict.

15. The learned Counsel for the appellant has also raised this

plea that the ocular evidence is not corroborated with the medical

evidence. This plea is not found sustainable though the eye-

witness P.W.7 Manki Pahanain has stated that the first blow was

given with the backside of the Tangi and subsequent blow was

given with the edge side of the Tangi cutting the neck of her

husband. As per medical evidence, P.W.6 Dr. Sunil Khalkho

while conducting the postmortem report which has been proved

by him as Ext.5 has opined two external injuries one was

lacerated wound on the scalp over occipital region size 6"x4"x3".

Second was the lacerated wound on left parietal bone size 2"x 3"

and cause of death is also shown on account of haemorrhage and

shock as a result of antemortem injuries. The ocular evidence is

found corroborated with the medical evidence reason being

that the Tangi which is usually used in the village for cutting

the wood are blunt. P.W.3 Investigating Officer Anudeep

Singh who seized the Tangi and prepared the seizure memo

and proved the seizure memo of the same has stated that in

the seizure memo he nowhere given the size of Tangi.

Moreover it nowhere came in the evidence of prosecution

witness that the Tangi which was used in commission of the

murder was sharp like the sword or the knife. As such there

being no evidence in regard to the sharpness of the Tangi the

injury inflicted by the two blows given with the Tangi by the

appellant would be of lacerated wound as shown in the

postmortem report of the deceased by P.W.6 Dr. Sunil Khalkho.

As such the ocular evidence is also found corroborated with the

medical evidence.

15.1 It is also the settled law that the medical evidence is

simply the opinion and same cannot prevail upon the ocular

evidence where the ocular evidence is at variance with the

medical evidence, the ocular evidence shall prevail upon the

medical evidence unless and until the medical evidence

totally belies the ocular evidence.

15.2 The Hon'ble Apex Court held in Suraj Singh vs State of

U.P. (2008) 16 SCC 686 at para 14 as under:

14. "20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'.

15.3 The Hon'ble Apex Court also held in Bhajan Singh @

Harbhajan Singh & Ors. vs State of Haryana AIR 2011 SC

2552 at para 23 as under:

23.Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis. a vis. medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

[Vide: Abdul Sayeed (AIR 2011 SC (Cri) 964 : 2010 AIR SCW 5701) (supra)].

16. The learned Counsel for the appellant has also further

submitted that the conviction of the appellant is based on single

testimony of the eye-witnesses cannot be sustainable. This

submission made by the learned Counsel for the appellant is not

found tenable reason being that the conviction can be

sustained on the testimony of a single eye-witness if the same

is found trustworthy and reliable and transpires the

confidence of the Court to believe it. In view of Section 134 of

Evidence Act it is quality of the evidence not the quantity of

the evidence to prove the prosecution case. The conviction can

be based on single testimony of the single eye-witness which is

trustworthy.

16.1 The Hon'ble Apex Court held in Takdir Samsuddin Sheikh

vs State of Gujarat AIR 2012 SC 37 in para 10 as under:

"............This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration.In fact, it is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquitthe accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence............"

17. The learned Counsel for the appellant has also submitted

that the Tangi which is alleged to have been used in commission

of the murder was not blood stained and same was neither

produced during trial nor was sent for examination to the F.S.L.

This argument is also not found tenable reason being that if the

case is based on testimony of reliable eye-witness, the

production of the weapon or non-sending the same to the

F.S.L. for examination cannot be fatal to the prosecution

case.

17.1 The Hon'ble Apex Court held in Md. Jamiluddin Nasir vs.

State of West Bengal AIR 2014 SC 2587 in para 48 as under:

48.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 upon by the learned Additional Solicitor General to the decision reported in Ram

Singh v. State of Rajasthan (2012) 12 SCC 339 would meet the said contention. In paragraphs 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. 17.2 The Hon'ble Apex Court also held in State of Punjab vs.

Hakam Singh (2005) 7 SCC 408 in para 13 as under:

13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident.

18. Therefore, in view of the critical analysis of the evidence on

record, prosecution has been successful to prove its case beyond

all shadow of reasonable doubts and the impugned Judgment of

conviction and sentence passed by the learned trial court needs

no interference. Accordingly, this Cr. Appeal deserved to be

dismissed.

19. This Cr. Appeal is dismissed. The impugned Judgment of

conviction and sentence passed by the learned trial court is

affirmed.

20. Let the trial court record be sent back to the court concerned

along with copy of Judgment.

(Ananda Sen, J.)