- 1 - IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 1586 of 2006 (Against the Judgment of conviction dated 24th of August, 2006 and Order of sentence dated 25th of August, 2006, passed by the 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 143 of 2005). ------------- Bihari Lohra ….. … Appellant Versus The State of Jharkhand .…. … Respondent -------- For the Appellant : Miss Amrita Banerjee, Amicus Curiae. For the Respondent-State : Mr. Nagmani Tiwari, A.P.P. -------- PRESENT : HON’BLE MR. JUSTICE H. C. MISHRA HON’BLE MR. JUSTICE B.B. MANGALMURTI ------- By Court.:- Heard Miss Amrita Banerjee, learned Amicus Curiae appointed by the Court for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 24th of August, 2006 and Order of sentence dated 25th of August, 2006, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 143 of 2005, whereby, the sole accused Bihari Lohra has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs.500/- for the said offence. 3. The prosecution case was instituted on the basis of fardbeyan of informant Hemanti Devi, the wife of the deceased Arjun Lohar, recorded on 5.11.2004 at her house, in village Kutuwa, Police Station and District Gumla. The informant has stated that the accused Bihari Lohra, who was her cousin-in-law’s husband, came to her house on 3.11.2004 and her cousin-in-law Rajni Devi, the wife of Bihari Lohra also came to her house on 4.11.2004. In the night all of them were sleeping in the same room. The informant was sleeping with her child, her mother-in-law and her cousin-in-law Rajni Devi were also sleeping with children and Bihari Lohra and Arjun Lohar, the husband of the informant were also sleeping in the same room together. At about 11.00 P.M. in the night, she woke up, upon the cry of her child, she saw in the light of earthen lamp - 2 - burning in the room, that Bihari Lohra was picking up a big hammer (described as ghan in the fardbeyan), whereupon she raised the alarm, due to which, her mother-in-law and cousin-in-law also woke up. All of them saw that Bihari Lohra assaulted her husband by the said ghan on his head twice. They tried to apprehend the accused, but the accused managed to flee away, opening the door. The deceased died at the spot. On the basis of the fardbeyan of the informant, Gumla P.S. Case No. 213 of 2004, corresponding to G.R. No. 671 of 2004, was instituted for the offence under Section 302 of the Indian Penal Code, against the named accused Bihari Lohra and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, eight witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-2 Hemanti Devi is the informant in the case and wife of the deceased. This witness has stated that Bihari Lohra was living in her house and his wife Rajni Devi come to her house on 3.11.2004. Fulo Devi is the mother-in-law of Bihari Lohra and Bihari Lohra was a gharjamai. On 4.11.2004, at about 10-11 P.M., she was sitting with her child in her lap, as her child was ill, Rajni Devi and her mother Fulo were also sleeping in the same room and Bihari Lohra and her husband were also sleeping in the same room. Her mother-in-law Birasmuni Devi was also sleeping in the same room and an earthen lamp was burning in the room. She saw that Bihari Lohra assaulted her husband Arjun Lohra by ghan on his head. He made two assaults. She has stated that all of them tried to apprehend him, but Bihari Lohra managed to flee away, opening the door. On the verandah, the father of Bihari was also sleeping and he also fled away along with his son. Her husband died at the spot. The ghan was weighing 5 kgs. This witness has further stated that the occurrence had taken place due to the fact that Bihari was demanding the lands in the share of his mother-in-law Fulo Devi, but she wanted to give the lands to Arjun, for which, Bihari assaulted Arjun, causing his death at the spot. She has also stated that the police had arrived at the place of occurrence on - 3 - 5.11.2004 and recorded her fardbeyan and finding the same true, she had put her signature. She has identified her signature and has also identified the signature of Rajni Devi on the fardbeyan, which were marked Exhibits-1 and 1/1. She has also stated that her statement was recorded in the Court and she has identified her signature on her statement, recorded under Section 164 of the Cr.P.C., which was marked Exhibit-2. In her cross-examination, this witness has stated that the mother-in-law of Bihari was living in the same village and the distance of her house could be covered within five minutes. Rajni was married to Bihari about 10-12 years ago, thereafter, Bihari was living with his mother-in-law at his in-laws' place. Prior to the occurrence, there was no enmity between them and even on the date of occurrence, all of them were sleeping in the same room considering that all of them were own persons. She has also stated that the ghan, by which, the assault was made, was kept in the room from before and Bihari suddenly stood up and assaulted her husband by the ghan, whereupon, she had raised the alarm. The people of neighbourhood had also assembled there, but Bihari managed to flee away. She has stated that Bihari was living as gharjamai, which was not acceptable to them, but he was living as gharjamai. She has also stated that there was no dispute with Bihari from before. She has denied the suggestions that Bihari was mentally ill and that her husband was murdered by the extremists and she has further denied to have given the false evidence. 6. P.W.-1 Biras Muni is the mother of the deceased. This witness has stated that the occurrence had taken place at about 11.00 P.M. in the night, when she was sleeping with her gotni Fulo Devi, Fulo's daughter Rajni Devi, her daughter-in-law Hemanti, her son Arjun, and Bihari Lohra. All of them were sleeping in the same room. On the verandah, the father of Bihari Lohra was also sleeping. An earthen lamp was burning in the room. At about 11.00 P.M., Bihari Lohra assaulted Arjun Lohra by the ghan, weighing about 5 kgs. on his head. He made two assaults in the same manner as the wood is cut, due to which, Arjun died at the spot in the pool of blood. They tried to apprehend the accused, but he managed to flee away and the father of Bihari Lohra, who was sleeping on the verandah also fled away. This witness has stated that her gotni Fulo Devi had kept Bihari Lohra as gharjamai and he used to ask his mother-in-law to give the lands of her share to him, but his mother-in-law used to say that when Arjun is there, she could not transfer the - 4 - lands in his favour, and for this, Bihari had killed Arjun. This witness has also stated that her statement was earlier recorded in the Court (under Section 164 of the Cr.P.C.), on which, she had put her thumb impression. This witness in her cross-examination has stated that Bihari Lohra is her son-in-law in relation, as he is the son-in-law of her gotni, and the village of Bihari Lohra is situated at a distance of two kose. Bihari was married to Rajni about 8 years ago and, thereafter, he was living at his in-laws' place as gharjamai, along with his wife and three children. The father-in-law of Bihari was Butu Lohra and the house of Butu Lohra and this witness is common. There is only one long room in the house and one verandah. She has again stated that Bihari’s mother-in-law has a separate house, which is in front of her house. She has also stated that she had only one son and he was murdered. Father-in-law of Bihari had died, the mother-in-law of Bihari is alive and Bihari was tilling the land of his father-in-law. There was no enmity between them and on the date of occurrence, as the child of her daughter-in-law was ill, in the evening Rajni, Fulo, Bihari and his father Lutto Lohra who had come two days ago, had come to her house after taking meals, to see the child. Fulo had come after locking her house and in the night, and all of them had slept there. They were sleeping in the same room and Bihari was sleeping with her son. The occurrence took place at about 11.00 P.M. in the night. She had seen Bihari assaulting her son and upon alarm raised, 2-4 persons from the neighbourhood, namely, Manga Kharia, Situ Lohra and Somra Oraon had also reached there. In the morning Gurucharan Sahu had gone to the Police Station, who was sent by her. At about 10.00 A.M. the police had reached the place of occurrence. She had given her statement before the police that her son was assaulted by a ghan, weighing 5 kgs., and he was assaulted in the same way, in which, the wood is cut. She has also stated that Bihari was not mentally ill and she denied the suggestion that her son was killed by the extremists. She has also denied the suggestion to have given the false evidence. 7. P.W.-3 Manga Indwar and P.W.-4 Situ Lohra, are the neighbours, who had reached the place of occurrence, upon hearing the screams and the sound of crying. P.W.-3 Manga Indwar has stated that when he reached the house, he saw the deceased dead and he was informed about the occurrence by the wife of the deceased that Bihari Lohra had assaulted her husband by ghan. The ghan was lying by the side of the dead body. He has identified the - 5 - accused in the Court. In his cross-examination this witness has stated that he had not seen the occurrence and to the Court's question, he has stated that his house is situated nearby to the place of occurrence, and in the evening he had seen Bihari Lohra there. Similarly, P.W.-4 Situ Lohra, on hearing the noise, he thought that the ill child of Arjun had died and he went to the place of occurrence, but he saw Arjun lying dead. He was informed by the wife of the deceased that Bihari Lohara had assaulted him by ghan and fled away and the ghan was lying by the side. This witness is also the witness to the seizure list and the inquest report, and has stated that he had put his thumb impressions on both these documents. He has also identified the accused in the Court. In his cross-examination, this witness has stated that the deceased is his cousin and the accused is the son-in-law of his sister, who was living as gharjamai, for about 10-11 years. He has stated that there was no enmity between them and he has no knowledge as to why Bihari had assaulted the deceased. Bihari was never mentally ill. He has also stated that after death of his father-in-law, Bihari used to till the lands and there was no objection from the side of Arjun for that. To the Court’s question, this witness has stated that his house is situated nearby, and in the evening he had seen Bihari at the place of occurrence. 8. P.W.-5 Gurucharan Sahu, is the father of informant Hemanti Devi. He has stated that he had given the information about the occurrence to the police, thereafter the police arrived at the place of occurrence and had seized the ghan, from the place of occurrence. He is the witness to the seizure list and he has identified his signature on the seizure list, which was marked Exhibit-3. He is also the witness to the inquest report and upon identification, his signature thereon was marked Exhibit-4. He has stated that he was informed by Hemanti Devi that Bihari had killed her husband and had fled away. He has identified the accused in the Court. In his cross-examination, this witness has stated that he is the father of informant Hemanti Devi and the deceased was his son-in-law. He is also living in the same village and his house is situated at a distance of about 50 hands. He has stated that hammer was blood stained. Bihari was living in the village as gharjamai. He has denied the suggestion that his son-in-law was not killed by Bihari Lohra and has stated that there was no enmity between them. He has also stated that the accused was never mentally ill. - 6 - 9. P.W.-6 is Dr. Kameshwar Nath Tiwari, who had conducted the post-mortem examination on the dead body of the deceased on 05.11.2004, and has found the following injuries on him:- “1. Lacerated wound 3”x1”x bone deep present over the supra orbital area of right eye. 2. Bleeding from the right ear and both the nostrils. On dissection:- Depressed fracture of the frontal bone beneath the injury No. 1. There was a subdural hematoma present beneath injury No. 1. Left chamber of the heart empty, while right chamber contained blood. Both lungs intact and congested. Stomach empty. Bladder contained about 15 cc of the residual urine.” This witness has stated that the above injuries were ante-mortem in nature, caused by hard and blunt substance, may be by hammer, and the death was caused due to injury No.1. He has identified the post-mortem report to be in his pen and signature, which was marked as Exhibit-5. 10. P.W.-7 Ajay Prasad, is the I.O. of the case. He has stated that on 05.11.2004, he was posted as A.S.I. at Gumla Police Station and there was information that one person was murdered at village Kutuwa. He was sent by the Officer-Incharge to the place of occurrence, where he found that Arjun Lohra was murdered. He recorded the fardbeyan of the wife of the deceased, which he has proved to be in his pen and signature, and the same was marked Exhibit-6. He has also stated that before recording the fardbeyan, he had prepared the inquest report of the dead body of the deceased, which also he has proved and the same was marked Exhibit-7. He had also seized a hammer from the place of occurrence and has proved the seizure list, which was marked Exhibit-8. He inspected the place of occurrence and has given the details of the place of occurrence, stating that the dead body was found by him in the room and the hammer was lying nearby. He had recorded the statements of the witnesses. This witness has also proved the formal F.I.R., which was marked Exhibit-9 and he had sent the dead body for post-mortem examination. He also got the statements of Hemanti Devi, Rajni Devi and Biras Muni, recorded under Section 164 of the Cr.P.C. He got the post-mortem report, and after completing the investigation, he submitted the charge-sheet. In his cross-examination this witness has stated that he had not - 7 - seen blood stains on the hammer and he had not seized the blood stained soil from the place of occurrence. He had also not sent the hammer for forensic examination. He has stated that the informant had not stated before him about the previous enmity and the other witnesses had also not stated about the previous enmity. He has stated that he could not record the statement of the accused, as the accused was absconding. He has denied the suggestion to have made faulty investigation. 11. P.W.-8 is Laxman Oraon, who is a Chaukidar and he had only produced the hammer (ghan) in the Court, which was marked material Exhibit-I. In his cross-examination, he has stated that the hammer is rusted and the paper pasted on the hammer does not bear any signature. He has stated that earlier the number was written 203/04, which has been made 213/04, but this cutting does not bear any signature. 12. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No defence evidence has been adduced in the case. 13. Learned amicus curiae appearing on behalf of the appellant 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, in as much as, there are material contradictions in the evidence. It is submitted by learned amicus curiae that in the fardbeyan, the informant has stated that she was sleeping at the time of occurrence and woke up on the crying of her ill child, but in her evidence, she has stated that at the time of occurrence, she was sitting with her ill child in her lap. It is further submitted by learned amicus curiae that the motive in the case has not been proved by the prosecution and the hammer, which was used in commission of the crime, was not sent to forensic examination. No blood stained soil was seized from the place of occurrence. Learned amicus curiae has also submitted that the other witnesses present in the room, namely, Rajni Devi and Fulo Devi, who were also the eye-witnesses to the occurrence, have not been examined in the case, and as such, even though the material witnesses examined in the case have supported the prosecution case, it is a fit case in which the accused appellant ought to have been given the benefits of doubt. 14. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that the prosecution case is fully supported by the - 8 - eye-witnesses, who are, P.W.-1 Biras Muni and P.W.-2 Hemanti Devi, who are the mother and the wife of the deceased and they are the natural witnesses, who have supported the prosecution case, as the occurrence had taken place in the dead night in a closed room and these witnesses were present in the room. Learned counsel has also submitted that the neighbouring persons have also supported the prosecution case as hearsay witnesses, who are P.W.-3 Manga Indwar and P.W.-4 Situ Lohar, who reached the place of occurrence soon after the occurrence, upon hearing the cries and the noise. They have stated that they saw the dead body of the deceased with the ghan lying nearby, and they were informed that the accused Bihari Lohra had assaulted the deceased to death. Learned counsel has submitted that the ocular evidence of these witnesses is fully supported by the medical evidence of P.W.-6 Dr. Kameshwar Nath Tiwari and the post-mortem report proved by him as Exhibit-5, which clearly shows that the hammer blow given on the head of the deceased was sufficient to cause death in normal course of nature. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 15. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the eye-witnesses, who are the natural witnesses, being the wife and mother of the deceased and who were present in the room in the dead night, when the occurrence had taken place in the closed room. The prosecution case is also supported by the neighbours, who are the hearsay witness, namely P.W.-3 Manga Indwar, P.W.-4 Situ Lohra, and also P.W.-5 Gurucharan Sahu, the father of the informant, and they had reached the place of occurrence after the occurrence and they had seen the dead body of the deceased and the hammer lying nearby, and they were informed about the occurrence by the wife of the deceased. Though, it is a fact that other witnesses, namely, Rajni Devi and Fulo Devi, who were also present in the room have not been examined in the case, but the fact remains that they are the wife and mother-in-law of the accused and due to the fear of their turning hostile, prosecution might not have examined these witnesses. The fact however, remains that Rajni Devi had also put her signature on the fardbeyan, which has also been proved in this case. - 9 - 16. We are of the considered view that simply due to the fact that Rajni Devi and Fulo Devi have not been examined in the case by the prosecution, the same cannot be fatal to the prosecution. The ocular evidence of all the material witnesses examined by the prosecution is corroborated by the medical evidence of P.W.-6 Dr. Kameshwar Nath Tiwari and the post-mortem report proved by him as Exhibit-5, wherein the hammer blow was found on the head of the deceased, which was the cause of death of the deceased. In the facts of this case, we find that the prosecution has been able to bring home the charge against the sole accused beyond all reasonable doubts. As such, the accused Bihari Lohra has rightly been convicted and sentenced by the Trial Court below, and there is no illegality in the impugned Judgment of conviction and Order of sentence. 17. For the foregoing reasons, the impugned Judgment of conviction dated 24th of August, 2006 and Order of sentence dated 25th of August, 2006, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 143 of 2005, convicting and sentencing the appellant Bihari Lohra, for the offence under Section 302 of the Indian Penal Code, are hereby, affirmed. The appellant is already in custody, undergoing the sentence. 18. Before parting with the Judgment, we must record that we have been given able assistance by the learned amicus curiae Miss Amrita Banerjee and we direct the Secretary, High Court Legal Services Committee, to make the payment of prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 19. We find no 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. (H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi. Dated the 1st of February, 2018. NAFR/Amitesh/-