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Judgment
This criminal appeal is directed against the judgment of
conviction and order of sentence dated 08th June 2006 and 09th June, 2006
respectively, passed by Sri Anand Kumar Gupta, the learned 2 nd Additional
Session Judge, Gumla in Session Trial No. 63 of 2004, arising out of Raidih
P.S. Case No. 61/2003, corresponding to G.R. No. 790 of 2003, whereby and
whereunder, the learned trial court having found the sole appellant guilty for
committing murder, convicted him for the offence punishable under Section
302 of the Indian Penal Code and sentenced him to undergo rigorous
imprisonment for life.
The brief facts of the prosecution as per written statement of
the informant Vikash Mallah @ Jhora is that at the night of 11.12.2003 he
slept with his family members in his house. The mother of the informant, the
deceased namely Lodo Devi, three brothers, one sister and father were
sleeping. The informant was sleeping in another room. In the morning at
about 5 O''clock on 12.12.2003 his younger brother Krishna raised alarm,
hearing which, he woke up and went to his mother''s bedroom and saw that
his father Topa Mallah @ Jhora was standing with an iron sabal (an iron
crowbar or lever) in his hand, which was blood stained. His mother (namely
Lodo Devi) was lying dead on the bed with head injury. The informant went to
his aunt (elder aunt/Bari Maa), namely, Sukra Devi and told her that his father
killed his mother by giving a blow from iron Sabal. Then, his aunt (elder aunt)
and nearby people assembled hearing hulla. The persons residing in nearby
areas/neighbours, then cought hold of his father. According to the informant,
the bone of contention between his mother and father were as to why his
sister Asha Kumari has been sent to Delhi for working.
On the basis of the said written report, an FIR being Raidih
P.S. Case No. 61 of 2003, corresponding to G.R. No. 790 of 2003 was
registered for the offence under Section 302 IPC.
After completion of investigation, the Investigating Officer
submitted chargesheet against the appellant under Section 302 IPC. The
case was committed to the Court of Session. Charge was framed under
Section 302 IPC against the sole accused, which was read over and
explained to him, but the accused pleaded innocence and claimed to be
tried.
To prove the case, twelve witnesses were examined in this
case by the prosecution, who are P.W.1- Md. Kamruddin Khan, PW.2-
Keshwari Sahu, P.W.3- Vikash Mallah, the informant of this case, P.W.4-
Bahura Mallah, P.W.5-Sukuaro Devi, P.W.6- Dr. A.D.N. Prasad, P.W.7-
Krishna Mallah, P.W.8- Arjun Mallah, P.W.9- Rewati Devi, P.W.10- Kailash
Mallah, P.W.11-Shyam Prasad and P.W.12- Md. Saiyad Ansari. Some
documents were also marked as Exhibits.
After closure of the evidence of the prosecution, the
statement of the appellant was recorded under Section 313 Cr.P.C.
The trial court, after hearing the arguments on behalf of the
parties and after going through the materials available on record, vide
judgment dated 08.06.2006, convicted the appellant for the offence under
Section 302 of the Indian Penal Code and sentenced him to undergo rigorous
imprisonment for life.
Challenging the said judgment of conviction and order of
sentence dated 08.06.2006 and 09.06.2006 respectively, the appellant has
preferred this appeal.
We have heard the learned counsel appearing for the
appellant and the learned Addl. P.P. We have also scanned the evidences
and gone through the lower court records.
The counsel appearing for the appellant submits that the
appellant is innocent and the prosecution has miserably failed to prove the
case beyond all reasonable doubt. He further submits that there is no eye
witness to the occurrence and P.W.-7 cannot be said to be an eye witness, as
he was sent outside the room by the appellant before the assault was
committed. It is also submitted that the appellant was of unsound mind and
thus he is entitled to be acquitted. He also submits that the appellant has
falsely been implicated in this case as there were differences between the
appellant and the informant. He lastly submits that the prosecution witnesses
are highly interested witnesses and therefore, their evidences cannot be
relied upon.
On the other hand, learned Addl. P.P. submits that the
appellant has been found guilty for the offence under Section 302 IPC, as the
evidences of the witnesses are consistent. He further submits that inspite of
the differences between the informant and the appellant, P.W.7- the younger
son of the appellant, is the eye witness to the occurrence. He also submits
that all other witnesses categorically stated that the appellant was seen with
the murder weapon, which was blood stained, immediately after the
occurrence and the deceased was lying dead. He also submits that there is
nothing on record to suggest that the appellant was mentally unsound. He
lastly submits that in view of the evidences gathered in this case, this appeal
is liable to be dismissed.
In this case, as mentioned earlier, there are 12 prosecution
witnesses who have been examined.
P.W.-1 Md. Kamruddin has stated that he reached the house of
the informant after hearing scream. He saw the mother of the informant
sustained head injury and was lying in bed. He further saw that the accused
being confined by the persons present there. He also deposed that the
appellant was possessing an iron rod, which was blood stained. He stated
that the informant told him that his father has murdered his mother. The
police prepared the seizure list in his presence and he has put his signature
upon it, which was marked as Exts. 1 and 1/1. He also stated that his house
is hardly 100 yards from the house of the accused. He further stated that
though he has not seen the actual assault but had seen the blood stained
weapon, which was seized in his presence and he had also seen the
accused-appellant, who was kept in confinement. He also stated that several
other persons were also present there.
P.W.-2 is Keshwari Sahu, who deposed that he also reached the
place of occurrence after hearing scream and saw the deceased with injury
on her head. He stated that the appellant was possessing iron sawal (iron
rod) which was blood stained. He also got information from the informant
about the occurrence, who told that the present appellant has committed the
murder. This witness is also a seizure list witness.
P.W.-3 is Vikash Mallah, who is the informant in this case. This
witness stated that he was sleeping in another room and his younger
brother-Krishna woke up him and he went to the other room and saw the
appellant (his father) standing with an iron sawal in his hand, which was
blood stained and his mother dead and from her head, blood was oozing
out. This witness went on to his aunt and narrated the story. The villagers
assembled there on hearing hue and cry. He stated that he along with
Kamruddin confined the appellant and tied him with a post. He also stated
that the police arrived there and thereafter seized blood stained straw. He
admitted that he had put his thumb impression after reading his statement.
He stated that he did not see the actual assault and he also stated that he
has differences with his father.
P.W.-4 is Bahuran Mallah, who deposed in the same line as that of
P.Ws. 1 and 2. He further state that he had seen the appellant with the
murder weapon in his hand and the deceased was lying dead. He further
went on to say that this appellant always used to quarrel with his wife for the
reason that the daughter of this appellant was residing in Delhi, which was
not liked by this appellant and there was dispute amongst them on this
issue.
P.W.-5 Sukuaro Devi, is related to the deceased and the informant.
She also reached the place of occurrence after hearing hue and cry and saw
the deceased lying dead and the appellant was standing at the place of
occurrence with sawal (murder weapon). According to her also, the reason
for dispute was that the daughter of the deceased and this appellant had
gone to Delhi, who was not being traced, for which often the appellant and
the deceased used to quarrel. She further stated that the appellant was not
in his proper sense and always used to quarrel with several persons.
P.W.6 is Dr. A.D.N. Prasad, who conducted the postmortem of the
deceased and found the following injuries on the person of the deceased.
(I) lacerated injury on right parital region of the skull with depressed fracture and laceration of brain - 3" x1" x 1.5"
(II) Lacerated injury just behind the right pina 1.5"x1"x 2" with fracture of right mastoid bone with laceration of brain.
(III) Lacerated injury on right zygoma with fracture of zygomatic bone 1.5"x0.5"x1".
The Doctor has opined that the cause of death of the deceased is
because of above antemortem injury combined together causing head
injury. He also opined that the above injury may be possible by sawal
blows.
P.W.7 Krishna Mallah is the eye witness and is minor. The court
after being satisfied with his capacity to understand has come to a
conclusion that he is capable to depose only thereafter his deposition was
recorded.
This witness is the younger son of the appellant and the brother of
the informant. He was sleeping with his mother. He stated that in the
morning when he woke up, his father sent him out of the room for
urinating and shut the door of the room. Thereafter his father had given
blow on his mother''s head by sabal, resulting into her death. He stated
that blood was oozing out from the head of his mother. He also stated
that he woke up his brother Vikash Mallah (the informant). He also stated
that his uncle had come to the place of occurrence.
In cross examination, he stated that when his father was assaulting
his mother, he opened the door and went inside and saw the occurrence.
P.W.-8: is Arjun Mallah, who also deposed that he had seen the
deceased lying dead when he went to her house. He also stated that the
appellant was standing with sabal in his hand and he was confined. He
also gave the reason of quarrel between the husband and the wife as it
was narrated by other witnesses. This witness clearly stated that the
appellant was not mad. He further stated that he had not seen the actual
assault but he had seen the appellant standing with sabal. He has put his
signature on paper in police station.
P.W.-9 is Khebi Devi, who deposed that she had seen the
appellant with the murder-weapon. She further stated that the relationship
between the appellant and the informant was not good and that may be
the cause to implicate the appellant in this case.
P.W.10- Kailash Mallah, who reached the house of the appellant
after hearing hue and cry and narrated that he had seen the deceased
lying dead and the blood was oozing out from her head and the informant
told him that his father has committed the murder of the deceased. This
witness is a signatory to the inquest report.
P.W.-11 is Shyam Prasad, who deposed that he heard the
occurrence from the informant and hearing this, he went to the house of
the informant and saw the deceased was lying dead. He also stated that
he saw blood oozing out from her head and the appellant was standing
there possessing a sabal, which was blood stained. This witness is a
signatory to the arrest memo. This witness has stated that the mental
condition of the appellant was not good and the appellant has also
assaulted a child earlier with an axe but for the said occurrence, no case
was lodged.
P.W.12 - Syed Ansari: This witness is the I.O. of the case. He
stated that on 12.12.2003 at about 8 O''clock in the morning, after
receiving rumor that a woman has been killed in Bargitand village, he
reached the place of occurrence. He stated that he made entry in the
Station Diary. On reaching the place of occurrence, he recorded the
fardbeyan of Vikash Mallah and obtained his signature. He also
confirmed that Arjun Mallah has put his signature on the fardbeyan which
is marked as Ext.7. He also exhibited formal FIR (Ext.8) and the
endorsement as Ext.7/1. He stated that the accused was confined by the
villagers. He also stated that he prepared the seizure list, which is marked
as Ext.9 and the Inquest Report was also prepared in presence of
Bahuran Mallah and Kailash Mallah, which is marked as Ext.10. He
further stated that he also prepared the arrest memo, which is marked as
Ext.11, he seized the blood stained sabal in present of Kamruddin Khan
and Keshari Sahu and prepared the seizure list, which is marked as
Ext.9/1. He stated that blood stained straw was also seized, which is
marked as Ext.9/2. He thereafter, recorded the statements of witnesses
and gave the description of the place of occurrence. He admitted that the
blood was spread at the place of occurrence and the bed appeared to be
in a pool of blood.
Thus, from analyzing the evidences, we find that the witness
Nos. 1, 2, 4, 5, 8, 9, 10 and 11 reached the place of occurrence soon after
hearing the scream and they saw the deceased lying in pool of blood with
head injury. They also saw the appellant was standing near the deceased
with sabal, whom the witnesses and others took in confinement. There is no
contradiction in the statements of any of these witnesses on the aforesaid
point. P.W.3 is the informant, who states that he was sleeping in the next
room and his younger brother woke him up and told him about the said
occurrence. He immediately went in the room and saw the deceased lying
in the pool of blood, ''dead'' and this appellant was standing with blood
stained sabal. There were no other person in the room, except the appellant
and the deceased. The child witness (P.W.7) is the eye witness and as per
his evidence, it is clear that he was sent out by the appellant from the room
but he sneaked into the room when the assault was being made by this
appellant on the deceased. In his cross-examination, the defence has taken
out this point, which suggests that this witness (P.W.-7) was telling the truth,
which makes him an eye witness. There is no contradiction in the statement
of this witness also. Medical evidence also support the prosecution case.
Thus, from the aforesaid evidences, led by the prosecution, it
is quite clear that the appellant has assaulted the deceased, resulting into
her death. According to the submission made by the counsel for the
appellant, the appellant was of unsound mind. This submission has not
been supported by any cogent evidence and there is not a single chit of
paper, which suggests that the appellant was of unsound mind. Though,
two of the witnesses have stated that the appellant was not in a stable state
of mind but one of the witness P.W.8 stated that he was not mad. Mere
statement of any witness is not sufficient to declare a person to be of
unsound mind. There must be more cogent evidence in support of such
defence, which is missing in the instant case. The ocular evidence clearly
matches the medical evidence, as the Doctor has found injury on the parital
region of the skull and laceration of brain with fracture of right mastoid bone
and the prosecution witnesses are consistent that the assault was made on
the head of the deceased, which has been thus proved.
Thus, it can be safely held that the prosecution has been
able to prove the guilt of the appellant beyond all reasonable doubt, which
does not entitle acquittal of the accused-appellant. This appeal lacks merit
and is thus dismissed.
The appellant is already in custody. He is to serve out rest of
the sentence.
In the result, this appeal is dismissed. Let the Lower Court
Records be sent back to the Court concerned forthwith, along with a copy
of this judgment.