1. Heard learned counsel for the appellants and the learned counsel for the State, as also learned counsel for the informant.
2. The appellants are aggrieved by the impugned Judgement of conviction dated 11.12.2009 and Order of sentence dated 16.12.2009, passed by the
learned 1st Additional Sessions Judge, Godda, in S.T. No. 182 of 2004 / 146 of 2009, whereby, these appellants have been found guilty and convicted
for the offence under Sections 302 / 34 of the Indian Penal Code, and the appellant Kailash Paswan is also found guilty and convicted for the offence
under Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life and fine of
Rs.3,000/- each, for the offence under Sections 302 / 34 of the Indian Penal Code. The appellant Kailash Paswan is further sentenced to R.I. for
three years for the offence under Section 27 of the Arms Act, and both his sentences were directed to run concurrently.
3. The prosecution case was instituted on the basis of the fardbeyan of the informant Ashok Kumar Verma, the brother-in-law of the deceased Most.
Shanti, who was the widow of the younger brother of the informant, recorded at his village Ghuthi, P.S. Mahagama, District Godda, on 08.03.2004 at
15:45 hours, wherein he has stated that on the same day at about 8:00 A.M., eight named accused persons, including the appellants Kailash Paswan
and Anuplal Yadav, came variously armed on the vacant land in front of his house and started digging foundation on the said land. The informant has
stated that this land was settled in favour of his father. The informant’s side went and objected the digging of the foundation, whereupon the
accused persons started abusing them in filthy languages and asked them to go away. They also started hurling stones and bricks, whereupon the
informant’s side returned back to their house. At about 1:30 P.M., the informant’s bhabhi Chanda Devi, his wife Mamta Devi and Most.
Shanti again went to the accused persons requesting them not to forcibly dig the foundation on the land. In the meantime, the informant and his elder
brother also came there. It is alleged that the accused Kailash Paswan and Anuplal Yadav took out the pistols from their waist and threatened the
informant’s side to flee away, whereupon Most. Shanti still insisted them not to dig the foundation. It is alleged that Kailash threatened Shanti Devi
with pistol, asking her to flee away, and as soon as she turned back and started returning from the place of occurrence, Kailash fired the pistol, hitting
her on her back, due to which she fell down and died at the spot. It is further stated in the fardbeyan that one Chanda Rani, who was residing at
Asansol, was laying her claim over the land in dispute, and she had engaged other accused persons paying them money, for taking possession over the
land. On the basis of the fardbeyan of the informant, Mahagama P.S. Case No. 26 of 2004, corresponding to G.R. No. 204 of 2004, was instituted for
the offences under Sections 147, 148, 149, 120-B, 302 of the Indian Penal Code, and Section 27 of the Arms Act, against the nine named accused
persons, including the appellants and Chanda Devi, and investigation was taken up. After investigation, the police submitted the charge-sheet in the
case, pursuant to which, the three accused persons Kailash Paswan, Anuplal Yadav and Chanda Rani were sent up for trial.
4. After commitment of the case to the Court of Session, charge was framed against the accused Kailash Paswan, Anuplal Yadav and Chanda Rani
for the offences under Sections 302 / 34 and 120-B of the Indian Penal Code, and against the accused Kailash Paswan also for the offence under
Section 27 of the Arms Act, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. It may be stated that upon trial,
the accused Chanda Rani had been acquitted by the Trial Court below.
5. In course of trial, ten witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the
dead body of the deceased. The I.O. of the case has not been examined, and as such, the fardbeyan, the endorsement on the fardbeyan and the
formal F.I.R., have been proved with the help of a formal witness, P.W.-10 Ram Ratan Rajak, which were marked as Exhibits-3, 4 and 5
respectively. Out of the material witnesses examined, P.W.-8 Nebi Mehtar has turned hostile, and has not supported the prosecution case at all.
6. P.W.-9 Ashok Prasad Verma is the informant of the case and the brother-in-law of the deceased. This witness has supported the prosecution case
as eye witness to the occurrence, stating that the occurrence had taken place on 08.03.2004 at 8:00 A.M., in the morning. All the accused persons
named by him, including the appellants Kailash Paswan and Anuplal Yadav assembled on the land in front of his house. They were variously armed
and they started digging the foundation on the land. This witness along with his brother Sadanand went to object the digging of the foundation and the
ladies also accompanied them. It is alleged that Kailash Paswan started abusing them, asking them to flee away from the land, and the accused
persons also started hurling bricks and stones, in which his bhabhi Champa was injured, and thereafter they came to their house. Again at about 1:00
P.M., Champa Devi, Mamta Devi and Most. Shanti went to the place of occurrence, objecting the digging of the foundation by the accused persons.
This witness was at his verandah which was at a distance of 7 to 8 hands from the place of occurrence. Upon the objection made by the ladies, the
accused persons started abusing them in filthy languages, whereupon this witness also went there. Kailash and Anuplal took out pistols from their
waist and they started threatening them, whereupon this witness again came to his aangan, from where the place of occurrence was visible. Shanti
still insisted them not to dig the foundation, whereupon Kailash asked her to flee away, otherwise she would be killed. As soon as Shanti turned around
and started coming back, Kailash fired the pistol, hitting her on her back, due to which she fell down and died at the spot. This witness has stated that
the land in question was settled in the favour of his father in the year 1934 itself. He has also stated that the foundation was being dug on the direction
of Chanda Rani, who had no concern with the land in question. She was trying to grab the land. He has stated that he had given the fardbeyan before
the police, on which he had put his signature, which he has identified and the same was marked Exhibit-2. He has also stated that the inquest report of
the dead body was prepared, on which also he had put his signature, which he identified, and the same was marked Exhibit-2/1. He has identified the
accused persons in the Court. In his cross-examination, this witness has admitted that the power of attorney with respect to the land in dispute was
given to the accused Kailash by Chanda Devi, but he has also stated that the land did not belong to Chanda Devi. He has stated in his cross-
examination that he had seen the firearm injury on the back of the deceased. He has also stated in his cross-examination that Chanda Devi was not
present at the place of occurrence, rather she had visited the place six to seven days ago. He has denied the suggestion that the deceased was not
killed at the place of occurrence. This witness has also admitted in his cross-examination that at the time of occurrence, ten to twenty persons had
assembled there, but he has again stated that the other persons had come when the police had arrived there. He has stated that as soon as the
deceased fell down the accused persons fled away. At that time this witness, his bhabhi Champa, his wife Mamta, his nephew Rajesh were also
present at the place of occurrence. He has also stated that there was blood at the place of occurrence, but he had no knowledge whether the same
was collected by the police or not. This witness has admitted in his cross-examination that the deceased Most. Shanti was working as maid at
Mahagama, which was at a distance of about 8 K.Ms., from his village, and she used to visit there daily. He has denied the suggestion that he himself
got the deceased murdered by his nephew Sanjay. He has also denied the suggestion of giving false evidence.
7. P.W.-1 Champa Devi, the sister-in-law (gotni) of the deceased, P.W.-2 Rajesh Kumar Verma, the son of the deceased (aged about 15 years),
P.W.-3 Sumitra Devi, the niece of the deceased, P.W.-4 Mamta Devi, the other gotni of the deceased and the wife of the informant, P.W.-6 Urmila
Kumari, the daughter of the deceased and a child witness aged about 10 years, have also fully supported the prosecution case as eye witnesses to the
occurrence, in more or less the same manner, as stated in the F.I.R., as also by the informant P.W.-9 Ashok Kumar Verma, stating that when at
about 1:00 - 1:30 P.M., the deceased along with her two gotnies had gone to object the digging of the foundation, both these appellants book out pistols
and threatened them and when she turned around and was returning back, the pistol was fired by Kailash Paswan, hitting on the back of the deceased,
due to which she fell down and died at the spot. P.W.-1 Champa Devi and P.W.-4 Mamta Devi have also stated that they had gone to the police
station for informing the police, where after the police came to the place of occurrence. All these witnesses have identified the accused persons. In
her cross-examination P.W.-1 Champa Devi has stated that the occurrence had taken place on the next day of Holi, and to the Court’s question,
she has also stated that Chanda Devi had visited the place of occurrence prior to the occurrence, on 3rd of March, when also she had tried to dig
foundation on the land with the help of the co-accused persons, and had directed them to kill whoever dared to object. She has also stated that the
husband of the deceased Shanti Devi had died about 4 to 5 years earlier due to illness, and thereafter she was living separately in the village. She was
working as a cook at Lalmatia. She has also stated that at the time of occurrence, this witness and the other members of family, including Sanjay
Prasad, were present at the place of occurrence, and the neighbouring persons were also there. She has also stated in her cross-examination that
Chanda Devi was not present there on the date of occurrence. All these witnesses have denied the suggestion that the informant’s side had
themselves connived the murder of the deceased and had falsely implicated the accused persons.
8. It may be stated that the informant and some of the aforesaid witnesses were also cross-examined at length on the point of the claim of the
respective parties over the land in dispute, but that is not of much importance, in view of the fact that the according to the prosecution case, the
deceased was assaulted while she was returning back upon given the threats. The discussions on the claim of the respective parties would have been
relevant, had the occurrence taken place during the fight between the parties for the land in dispute, but as the prosecution case is not like that, and the
deceased was assaulted from behind, while she was returning back, the respective claim of the parties over the land in dispute becomes immaterial.
As such, the cross-examinations of these witnesses relating to the claim over the land in dispute, have not been discussed in detail by us.
9. P.W.-7 Sanjay Prasad Verma is the nephew of the informant, as also of the deceased, and he has supported the prosecution case as a hearsay
witness, stating that at the time of occurrence, he was at Mahagama, and he returned back at about 2:00 P.M., in the day, when he found the
deceased dead. He was informed about the occurrence by his uncle Ashok, his brother Rajesh and other persons, that the accused persons, including
these appellants, had committed the murder of the deceased, and the pistol was fired by Kailash and Anuplal. He has denied the suggestion to have
given the false evidence in order to save himself from the allegation of killing the deceased.
10. P.W.-5 is Dr. Pradeep Kumar Sinha, who had conducted the post-mortem examination on the dead body of the deceased on 09.03.2004, and had
following ante-mortem injuries on the dead body:-
(1) One wound of entry over back of right side of chest at the level of sixth thorasic vertebra, ½†away from the spinal column at the right side
measuring ½†x ½†directed from behind forward and slightly downward. Margin-inverted and blackening of the skin one inch around the
wound. Margin burnt with singeing of the hairs around the wound.
No wound of exit observed over the body.
On dissection â€" Right side of lung was found congested and lacerated measuring 4â€x ½†x5†with large amount of blood dark in colour was
found in the right thorasic cavity. A foreign body (bullet) of fire arm in nature was found lying in lower part of right lung, which was preserved in a
sealed vial.
This witness has stated that the cause of death was due to shock and haemorrhage due to the grievous injury caused by the fire arm. He has proved
the post-mortem report to be in his pen and signature, and the same was marked Ext.-1.
11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them.
The defence has also examined eight witnesses, who are, D.W.-1 Bibi Chulia, D.W.-2 Abdul Rajjaque, D.W.-3 Amiruddin, D.W.-4 Md. Mansur,
D.W.-5 Bibi Zarimun, D.W.-6 Md. Daud, D.W.-7 Md. Kalimuddin and D.W.-8 Md. Tameez, and all these witnesses have come to depose that P.W.-
7 Sanjay Prasad Verma had killed the deceased in order to grab her property. On the basis of the evidence on record, the appellants have been
convicted and sentenced as aforesaid, by the Trial Court below, whereas the co-accused Chanda Rani has been acquitted by the Trial Court below.
12. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court
below, cannot be sustained in the eyes of law, inasmuch as, the defence has adduced the evidence to show that it was P.W.-7 Sanjay Prasad Verma,
who is the nephew of the deceased, had committed her murder, in order to grab her property. It is submitted by learned counsel that it has come in the
evidence that the husband of the deceased had died earlier, and she was living separately in the village, as such the informant’s side was having
greedy eyes over her share of property, and in their connivance and with the help of Sanjay Prasad Verma, the murder of the deceased was
committed. Learned counsel submitted that this is also supported by the fact that P.W.-1 Champa Devi has specifically admitted in her cross-
examination that Sanjay Prasad Verma was present at the place of occurrence, but this witness has become a hearsay witness, stating that he was
not present at the time of occurrence and he came to the place of occurrence later, in order to save his skin, and this suggestion was also given to
P.W.-7 Sanjay Prasad Verma, and suggestions were also been given to the other material witnesses that in connivance with the informant’s side
the deceased was murdered by Sanjay Prasad Verma. Learned counsel also submitted that it is admitted by the witnesses that several persons were
present at the place of occurrence, but none of them have been examined by the prosecution and the prosecution case is supported only by the family
members of the informant and the deceased, who are highly interested witnesses. Learned counsel further submitted the I.O. has not been examined
in the case, which has caused serious prejudice to the defence, in view of the fact that the actual place of occurrence has not been proved in the case,
inasmuch as, it is the case of the defence that the deceased was murdered elsewhere, due to the family dispute. Learned counsel accordingly,
submitted that even though the witnesses have supported the prosecution case, but due to non-examination of any independent witnesses and in view
of the evidence of the D.Ws. examined in the Court, the appellants ought to have been given the benefits of doubt.
13. Learned counsel for the State, as also the learned counsel for the informant, on the other hand, have opposed the prayer, submitting that the
prosecution case is fully supported by P.W.-1 Champa Devi, P.W.-2 Rajesh Kumar Verma, P.W.-3 Sumitra Devi, P.W.-4 Mamta Devi, P.W.-6
Urmila Kumari, and P.W.-9 Ashok Prasad Verma, the informant, as eye witnesses to the occurrence. All these witnesses have stated that when she
started fleeing away from the place of occurrence, due to the threats given by both these appellants by pistols, the accused Kailash Paswan fired the
pistol from behind, hitting her in her back. Learned counsels submitted that this evidence is fully corroborated by the medical evidence of P.W.-5 Dr.
Pradeep Kumar Sinha, and the post-mortem report proved by him as Exhibit-1, which show that the wound of entry caused by the bullet was on the
back of the deceased, which had punctured the lungs and the bullet was found lying in the lower part of the lung. Learned counsels accordingly,
submitted that the prosecution has been able to bring home the charges against both the accused persons beyond all reasonable doubts, and there is no
illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court.
14. Having heard learned counsels for both the parties and upon going through the evidence on record, we find that prosecution case is fully supported
by P.W.-1 Champa Devi and P.W.-4 Mamta Devi, the gotnies of the deceased, who had accompanied the deceased at the time of occurrence,
objecting the digging of the foundation. The prosecution case is also supported by the other family members as eye witnesses, namely, P.W.-2 Rajesh
Kumar Verma and P.W.-6 Urmila Kumari, the minor children of the deceased, P.W.-3 Sumitra Devi, the niece of the deceased, and P.W.-9 Ashok
Prasad Verma, the informant and the brother-in-law of the deceased, and all these witnesses are the natural witnesses, who were present in the house
at the time of occurrence. The place of occurrence is in front of the house of the deceased, and in view of the submission of the learned counsel for
the appellants that serious prejudice was caused to the defence due to the non-examination of the I.O., as the place of occurrence has not been
proved, we have looked into the case diary in the interest of justice, which shows that the place of occurrence is the same place as described by the
witnesses. Even the evidence of D.W.-4 Md. Mansur speaks about the same place of occurrence, as he has stated that the deceased was killed near
the land of Chanda Devi. As such, the defence cannot now dispute the place of occurrence. None of the material witnesses examined by the
prosecution have been given any suggestion by the defence that they had not given such statement before the police. In that view of the matter, no
prejudice could be said to have been caused to the defence due to the non-examination of the I.O., in the case.
15. We also find that the evidence of all the eye witnesses regarding the manner of occurrence, is fully corroborated by the medical evidence of
P.W.-5 Dr. Pradeep Kumar Sinha, and the post-mortem report proved by him as Exhibit-1, who found the wound of entry of bullet over the back of
the deceased, at the level of sixth thorasic vertebra. The bullet was found embedded in the lung, causing serious injuries due to which right thorasic
cavity was found to be full of blood. The margin of the wound of entry was inverted and there was blackening of the skin one inch around the wound,
and the margin of the wound was found burnt with singeing of the hairs around the wound, which clearly show that pistol was fired from a short
range. The evidence of the eye witnesses that the deceased was assaulted by fire arm when she turned back and tried to retrieve from the place of
occurrence, is also supported from the fact that the fire arm injury was found on the back of the deceased.
16. Though the defence has examined eight witnesses, who have come to depose that the deceased was killed by her own nephew Sanjay Prasad
Verma, in order to grab her share of property, but the evidences of these witnesses are not at all trustworthy, as none of these witnesses have given
the manner of occurrence, though they claimed to be the eyewitnesses to the occurrence. They have only stated that Sanjay Prasad Verma killed the
deceased. Except D.W.-4 Md. Mansur and D.W.-6 Md. Daud, none of them have even stated that the deceased was killed by firearm. The evidence
of these witnesses do not inspire any confidence, also in view of the fact that none of these witnesses claimed that they had given any such statement
before the police. As such, the evidence of the defence witnesses cannot be taken into consideration even for the limited purpose of making the
prosecution case doubtful.
17. On the basis of the materials brought on record, we are of the considered view that the prosecution has been able to bring home the charge under
Sections 302 / 34 of the Indian Penal Code, against both these appellants for causing the death of the deceased in furtherance of the common intention
of both of them, and further been able to bring home the charge against the appellant Kailash Paswan for the offence under Section 27 of the Arms
Act as well. In the facts of this case we do not find any illegality in the impugned Judgement of conviction and Order of sentence passed by the Trial
Court below, worth any interference by this Court.
18. For the foregoing reasons, we do not find any illegality in the impugned Judgement of conviction dated 11.12.2009 and Order of sentence dated
16.12.2009, passed by the learned 1st Additional Sessions Judge, Godda, in S.T. No. 182 of 2004 / 146 of 2009, convicting and sentencing the
appellants Kailash Paswan and Anuplal Yadav, for the offence under Sections 302 / 34 of the Indian Penal Code, and convicting and sentencing the
appellant Kailash Paswan also for the offence under Section 27 of the Arms Act, which we hereby, affirm. The appellant Kailash Paswan is already
in custody undergoing the sentence. The appellant Anuplal Yadav, is on bail. His bail, is hereby, cancelled, and he is directed to surrender in the Trial
Court below forthwith, for serving out the sentence. The Trial Court below is also directed to issue process forthwith, compelling the production /
surrender of the appellant Anuplal Yadav in the Court below, for serving out the sentence.
19. Before parting with this Judgment, we find that P.W.-2 Rajesh Kumar Verma, and P.W.-6 Urmila Kumari, the children of the deceased lady, who
were minors at the time of occurrence, are the actual victims of crime. They had also lost their father in their childhood, and the due to the murder of
their mother, they became orphans. We accordingly, deem it proper that both these victims of crime should be duly compensated under the Victim
Compensation Scheme, under Section 357-A of the Code of Criminal Procedure. We, accordingly, direct the Member Secretary, Jharkhand State
Legal Service Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that P.W.-2 Rajesh Kumar Verma
and P.W.-6 Urmila Kumari, are duly compensated under the Victim Compensation Scheme, at an early date. Let a copy of this Judgment be sent to
the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful.
20. We do not find any merit in this appeal, and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with a copy of this Judgment.
