Budhu Kandeyang And Ors vs State of Jharkhand

Shree Chandrashekhar, J

Two accused persons, namely, Budhu Kandeyang and Manay @ Samu Kandeyang have faced the trial in Sessions Trial No. 250 of 2006 on the charge of causing death of Tribhuvan Kandeyang in furtherance of their common intention.

On the basis of fardbeyan of Jonga Kui wife of Tribhuvan Kandeyang recorded on 01.8.2006, at about 7:00 hrs., Muffasil P.S. case No. 110 of 2006 was registered under section 302/34 IPC against both the appellants. During the investigation, blood-stained tangi and blood-stained soil from the place of occurrence were seized by the investigating officer and sent for FSL report. The prosecution has examined altogether eight witnesses; the informant, namely, Jonga Kui is PW-1 and the doctor who has conducted post-mortem examination over the dead body of Tribhuvan Kandeyang is PW-3.

Dr. Ashok Kumar Mishra- PW-3 has found the following injuries on Tribhuvan Kandeyang:

"1. Lacerated wound on occipital area 2"x1" deep to cranial cavity is fracturing on occipital bone.

Lacerated wound on the chin 3"x2" deep to oral cavity with fracture of mandible. Hole in incisor and canine &f lower jaw broken.

Lacerated wound on the right parietal area 1"x1/2" deep to bone.

Lacerated wound on the right chick 1"x1" deep to oral cavity with fracture of maxilla."

The investigating officer of the case, however, was not examined during the trial of S.T. Case No. 250 of 2006.

The informant has stated that in the morning of 31.7.2006, at about 7 a.m., she along with her sister-in-law had gone for working in her land. At that time, her husband was ploughing field adjacent to their house. She has stated that co-villager Damodar Kandeyang-PW-2 was also ploughing his adjacent field at that time. It was in the afternoon when the accused Manay Kandeyang informed her that her husband has been killed, whereupon she came home and found her husband dead. In her examination in the court, she has reiterated that on the day of the incident her husband was at home and she had gone for work. She says that Damodar Kandeyang had also told her about the incidence. She has seen injuries on the dead body of her husband. She further says that Budhu Kandeyang had confessed to her about murder of her husband. She, however, has said that she has no knowledge about the actual dispute between her husband and the accused. She further says that when she was informed about the incident Manay was not there. The prosecution witness, namely, Damodar Kandeyang who has been examined as PW-2 has stated that the incident has happened at about 3:00 p.m.; he was working in his field since morning. At that time, the accused Manay Kandeyang slapped Tribhuvan Kandeyang and the accused Budhu Kandeyang brought a kulhari and assaulted Tribhuvan. This witness has deposed that the accused Budhu Kandeyang gave five blows to Tribhuvan Kandeyang. In his cross-examination also he has reiterated that Budhu Kandeyang has given five kulhari blows to Tribhuvan Kandeyang.

The prosecution witnesses, namely, PW-4, PW-5 and PW-8 have been declared hostile at the instance of prosecution. However, there are other independent witnesses; Saluka Kandeyang-PW-6, who is village Munda, and PW-7 is the inquest and seizure list witness.

Mr. Praveen Kumar, learned counsel for the appellant Budhu Kandeyang has contended that; (i) time of occurrence is not established by the prosecution (ii) discrepancy in the evidence of the informant and PW-2 regarding the time of occurrence and information given to the informant would create doubt on the prosecution's case and (iii) evidence of PW-2 is belied by the medical evidence; the doctor has found only four injuries on Tribhuvan Kandeyang and no injury on his chest.

On a glance at the evidence of PW-1 and PW-2, we find that PW-1 has little knowledge of Hindi and PW-2 does not know Hindi at all. An interpreter was therefore appointed with the consent of both the parties during the trial. In this background, we find that when the informant says that the incident has occurred at about 4 p.m. she gives an approximate time as per her estimation on the basis of the information given to her by the accused persons and PW-2. She has said in her examination-in-chief that Budhu Kandeyang came and informed her that he has killed her husband. It is the prosecution's consistent case that the incident in which Tribhuvan Kandeyang was assaulted by Budhu Kandeyang has happened in the afternoon of 31.7.2006 . The minor inconsistencies in the evidence of PW-1 and PW-2 regarding the time of occurrence would not shake the prosecution's case. In the cross-examination, PW-2 was not given any suggestion about his presence at the time of occurrence. He has been cross-examined about number of assault by Budhu Kandeyang on Tribhuvan Kandeyang. The reason, why the appellant Budhu Kandeyang has assaulted Tribhuvan Kandeyang, has been clearly brought on record by the prosecution. It is the prosecution's case that the deceased Tribhuvan Kandeyang was nursing a doubt that the appellant Budhu Kandeyang had illicit relationship with his wife and out of the said illicit relationship, her son, Birsa aged about two and half years was born. This was the cause of annoyance between the parties.

From the aforesaid evidence, we find that the prosecution has established presence of the appellant Budhu Kandeyang and assault by him upon Tribhuvan Kandeyang. So far as the number of assault by the appellant Budhu Kandeyang upon Tribhuvan Kandeyang is concerned, it has to be kept in mind that a witness is not supposed to count each blow with mathematical precision. Contradiction between the ocular evidence and medical evidence becomes relevant only when it is established that the number of injuries found by the doctor could not have occurred at all as a result of the manner of occurrence as disclosed by the prosecution. As many as four injuries around the occipital region of Tribhuvan Kandeyang have been found by the doctor and the blood-stained kulhari was seized by the investigating officer during the course of investigation. Therefore, we find that PW-2 asserting in his examination-in-chief and reiterating in his cross-examination that Budhu Kandeyang has given five blows to Tribhuvan Kandeyang whereas only four injuries have been found on the dead body of Tribhuvan Kandeyang is not such a contradiction on the basis of which the entire prosecution case would fall.

The accused Budhu Kandeyang has inflicted as many as four axe blows on the occipital region of Tribhuvan Kandeyang. The number of injuries and, that too, on the vital part of the body of Tribhuvan Kandeyang definitely reveals intention of the appellant Budhu Kandeyang to cause his death. In view of the evidence of Damodar Kandeyang-PW-2 as supported by the informant and other two witnesses-PW-6 and PW- 7, we hold that the prosecution has proved the charge under section 302 IPC against Budhu Kandeyang who is appellant in Cr.Appeal (DB) No. 836 of 2012.

The appellant Budhu Kandeyang in Cr. Appeal (DB) No. 836 of 2012 is guilty of causing death of Tribhuvan Kandeyang and, accordingly, his conviction under section 302/34 IPC passed by the learned 1st Additional Sessions Judge, Singhbhum West, Chaibasa in Sessions Trial No. 250 of 2006 vide judgment of conviction dated 1.3.2012 is converted u/s 302 IPC. However, the order of sentence of R.I. for life imposed upon him is affirmed.

In the result, Cr. Appeal (DB) No. 836 of 2012 is dismissed, with the aforesaid modification.

In so far as the appellant, namely, Manay @ Samu Kandeyang is concerned, we find that except a cryptic statement that he was present at the place of occurrence nothing specific has been said by any of the prosecution witnesses about him. There is no allegation of any assault upon Tribhuvan Kandeyang by him. It is also not the prosecution's case that the appellant Manay @ Samu Kandeyang was holding any weapon. The manner of occurrence as disclosed by the prosecution does not reveal that the appellant Manay @ Samu Kandeyang has assaulted Tribhuvan Kandeyang in furtherance of any common intention shared with the appellant Budhu Kandeyang.

The prosecution has failed to prove the charge under section 302/34 IPC against the appellant, namely, Manay @ Samu Kandeyang who is the appellant in Cr.Appeal (DB) No. 732 of 2013. Accordingly, the judgment of conviction and order of sentence dated 1.3.2012 passed against the appellant, namely, Manay @ Samu Kandeyang by the 1st Additional Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 250 of 2006 are set-aside.

Cr. Appeal (DB) No. 732 of 2013 is allowed.

The appellant- Manay @ Samu Kandeyang in Cr.Appeal (DB) No. 732 of 2013 is discharged of liability of bail-bonds furnished by him.

Let lower court records be transmitted to the court concerned, forthwith.