Cr. Appeal (D.B.) No. 136 of 2000(R)

Transcription

1 1 Cr. Appeal (D.B.) No. 136 of 2000(R) Against the Judgment of conviction and order of sentence dated and respectively passed by 2 nd Additional Sessions Judge, Hazaribagh in S.T. No. 81 of Madan Ram, S/o Ramawatar Ram 2. Vijay Ram, S/o Madan Ram 3. Ajay Ram, S/o Madan Ram 4. Vinod Ram, S/o Madan Ram 5. Manoj Ram, S/o Madan Ram 6. Kaushlya Devi, W/o Madan Ram, All R/o Village Noor Bhuinya Toli, PS Sadar, Distt. Hazaribagh Appellants Versus The State of Bihar Respondent For the Appellants : M/s A.K. Kashyap, Sr. Advocate & Lina Shakti, Advocate For the State : Mr. Pramod Kumar Choudhary, A.P.P. For the Informant : Mr. R.S.P. Sinha, Advocate P R E S E N T HON BLE MR. JUSTICE R. R. PRASAD HON BLE MR. JUSTICE RAVI NATH VERMA By Court :- This appeal is directed against the judgment of conviction and order of sentence dated and respectively passed by the then 2 nd Additional Sessions Judge, Hazaribagh in S.T. No. 81 of 1998, whereby the court while acquitting the appellants for the charges under Section 120B of Indian Penal Code convicted them for the offence punishable under Sections 302/34 of Indian Penal Code for committing murder of Jitu Paswan and Vijay Gope. Further, appellant-manoj Ram was convicted for the offence punishable under Section 324 of Indian Penal Code. All the appellants were sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 of Indian Penal Code and to pay a fine of Rs. 4,000/- with default clause and appellant-manoj Ram was further sentenced to undergo rigorous imprisonment for six months for the offence under Section 324 of Indian Penal Code. The case, as has been made out in the first information report, is that on , one Jitu Paswan (deceased), son of the informant-pushpa Devi

2 2 (P.W. 5), as well as Vijay Gope (deceased) and also other boys of the locality had organized a programme of breaking of 'Matka' in Bhuiyan Toli in front of the house of appellant-madan Ram. Several persons had assembled over there and were enjoying it by playing music and dancing. Meanwhile, at about 1:00 pm, appellant-manoj Ram and his other family members came there and asked Jitu Paswan, Vijay Gope and others to stop playing music. Upon it, Jitu Paswan told them that they will stop playing music after breaking of 'Matka'. This led to altercation in between Jitu Paswan and the accused persons namely, Madan Ram, Vinod Ram, Manoj Ram and Subodh Ram (died during trial). On hearing halla, the informant-p.w. 5 came rushing there but by that time Madan Ram (died during pendency of this appeal) by catching Jitu Paswan by his neck made him to fall on the ground. The informant in order to save her son laid herself over his body. Meanwhile, appellant-manoj Ram went home and brought a dagger and pushed away the informant from the body of the informant s son and then made an attempt to give dagger blow to Jitu which the informant intercepted as a result of which she sustained injury over her fingers. Thereupon, appellant-manoj Ram inflicted several injuries upon Jitu Paswan over his chest, forehead, abdomen and waist. Meanwhile, appellant- Kaushlya Devi, mother of appellant-manoj Ram, dropped down a dagger from the upper floor of the house which was caught by appellant-subodh Ram. By that time, Vijay Gope reached there to rescue his friend-jitu Paswan but the appellants, namely, Madan Ram, Subodh Ram, Vinod Ram, Manoj Ram, inflicted injuries in his abdomen. Both the injured fell down on the ground and then the appellants fled away from there. Thereupon, several persons assembled there who took the injured to hospital where both of them were declared dead. Meanwhile, Rameshwar Ray-P.W.11, the then Sub Inspector of Police, came to the hospital where he recorded the fard beyan (Ext. 3) of the informant-p.w. 5 to the effect, as stated above, upon which a formal FIR (Ext. 4) was drawn against the five persons

3 3 namely, Madan Ram, Subodh Ram, Vinod Ram, Manoj Ram and Kaushlya Devi. Appellant nos. 2 and 3 namely, Vijay Ram and Ajay Ram, had not been made named accused. The Investigating Officer during investigation held inquest on the dead-bodies of Jitu Paswan and Vijay Gope and prepared inquest reports (Ext. 5 & 5/1) and sent the dead-bodies for post mortem examination which were conducted by Dr. Bimal Kumar Verma -P.W. 6 who upon holding autopsy on the dead-body of the deceased-jitu Paswan found the following ante-mortem injuries :- i. Stab and penetrating wound 3 x 1½ x skin deep upto brain deep. ii. Stab penetrating wound near left shoulder region of chest 1 x 1 x chest deep. iii. Stab penetrating wound at right side of chest ¼ x ¼ x skin deep. iv. Stab penetrating wound on abdomen left side 1½ x ½ x abdomen deep. v. Stab penetrating wound on left side of abdomen 1 x ½ x abdomen deep. The doctor issued postmortem examination report (Ext. 2) with an opinion that the death was caused on account of hemorrhage and shock due to above-mentioned injuries, caused by sharp and pointed weapon like that of chhura. On the same day, the doctor also held autopsy on the dead-body of the deceased- Vijay Gope and found the following ante-mortem injuries :- i. Stab penetrating wound on right side of chest 1 x ½ x chest cavity deep. ii. Stab penetrating wound on right side of abdomen 1 x ½ x abdomen cavity deep. iii. Two penetrating wounds on left side of abdomen 1 x 1 x abdominal cavity deep. The doctor issued postmortem examination report (Ext. 2/1) with an opinion that the death was caused on account of hemorrhage and shock due to above-mentioned injuries, caused by sharp and pointed weapon like that

4 4 of chhura. After completion of the investigation, when the Investigating Officer submitted charge-sheet against the named accused and also against the appellants-vijay Ram and Ajay Ram, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellants were put on trial. The prosecution in order to prove its case examined altogether 14 witnesses. Of them, P.W. 1-Sabita Kumari, P.W. 4-Md. Shahab and P.W. 5- Pushpa Devi-informant are the eye witnesses, whereas P.W. 10-Ganesh Paswan claimed to be the eye witness. P.W. 2-Ram Prasad Ram and P.W. 3- Ashok Gope are the hearsay witnesses, whereas P.W. 7-Md. Hakim Anari and P.W. 9-Budhan Ram did not support the case of the prosecution. P.W. 8- Ram Prasad Gope happens to be the witness to the inquest. After closure of the prosecution case, the appellants and other accused persons were questioned under Section 313 of Cr.P.C. about the incriminating circumstances appearing against them to which they denied. The trial court having believed the testimonies of P.Ws. 1, 4 and 5, getting corroboration from the medical evidences, did hold that the prosecution has been able to -establish the charges that the accused persons in furtherance of their common intention committed murder of Jitu Paswan and Vijay Gope and thereby the court has passed the judgment of conviction and order of sentence against the appellants. Being aggrieved with that, the appellants have preferred this appeal. Mr. A.K. Kashyap, learned senior counsel appearing for the appellants, submits that appellant-madan Ram has died during pendency of this appeal and an order has already been recorded regarding abatement of appeal as against him, whereas the other appellants namely, Vijay Ram, Ajay Ram and Vinod Ram except Manoj Ram, have been alleged to have done nothing in commission of the murder of the deceased, still they have been convicted.

5 5 In this regard, it was submitted that it was appellant-manoj Ram who, as per testimonies of the witnesses, inflicted injuries upon the deceased-jitu Paswan and further appellants- Manoj Ram and Subodh Ram (died during trial) have been alleged to have inflicted injuries to other deceased-vijay Gope. However, P.W.1 has testified that the appellants Vijay Ram, Ajay Ram and Vinod Ram had also assaulted the deceased-jitu Paswan at the time of occurrence, whereas P.W. 4 has testified that the appellants Vijay Ram, Ajay Ram and Vinod Ram did assault deceased- Vijay Gope and made him to fall but the testimonies of both the witnesses did not find corroboration from the evidence of the informant, where she has not said about any overt act being done by these appellants. Moreover, from the facts appearing in the case, it would be evident that the appellants Vijay Ram, Ajay Ram and Vinod Ram were never sharing common intention for committing murder of the deceased. Further submission, which was advanced on behalf of the appellants, is that so far appellant- Kaushlya Devi is concerned, she admittedly was not at the spot where altercation had taken place, rather she seems to be on the upper floor of the house from where it is said that she dropped down a dagger which the accused- Subodh Ram held and then appellant-manoj Ram inflicted injuries upon the deceased-vijay Gope and thereby actus reus was there on her part but certainly mens rea was not there nor it could have been there for committing murder of the deceased and thereby if the mens rea was not there on her part, she cannot be said to have sharing common intention. Learned counsel in support of his submission has referred to the decisions rendered in the cases of Jai Bhagwan Vs. State of Haryana {1999 SCC (Cri) 388}. Thus, it was submitted that the appellants namely, Vijay Ram, Ajay Ram, Vinod Ram and Kaushlya Devi, deserve to be acquitted, as the trial court without taking into account all these aspects in right perspective

6 6 recorded the judgment of conviction and order of sentence against them which is fit to be set aside. As against this, learned counsel for the State submits that from the evidences of P.Ws. 1, 4, 5 and 10, it would appear that all the accused persons were sharing common intention in committing murder of the deceased and the testimonies of the eye witnesses find corroboration from the medical evidences and thereby the trial court did not commit any illegality in recording the judgment of conviction and order of sentence against them. In context of the submission, testimonies of the eye witnesses need to be scrutinized. According to the informant-pushpa Devi (P.W.5), altercation took place in between her son-jitu Paswan and the appellants, as the appellants wanted from Jitu Paswan and other organizers to stop playing music which they were playing on the occasion of breaking of 'Matka'. When Jitu Paswan told the appellants that they will stop playing music after 'Matka' is broken, this aggravated the appellants and then appellant-madan Ram, who died during pendency of this appeal, tried to strangulate the neck of her son-jitu Paswan. Meanwhile, she intervened and when appellant- Manoj Ram tried to inflict injuries upon her son-jitu Paswan, she intercepted by her hands as a result of which, she received cut injury over her fingers. Thereupon, appellant-manoj Ram inflicted several injuries on the person of Jitu Paswan. Meanwhile, Vijay Gope when tried to rescue his friend-jitu Paswan, appellant-kaushlya Devi dropped down a dagger which was caught by appellant-subodh Ram and then he inflicted injuries upon Vijay Gope. Both the injured were taken to hospital where both of them were declared dead. Another eye witness i.e. P.W. 1 has testified that while she was going to take water from the well, she saw all the appellants assaulting Jitu Paswan and then appellants -Madan Ram and Subodh Ram felled Jitu Paswan on the ground and then appellant-manoj Ram brought a dagger

7 7 and pushed away the informant-p.w. 5 and then inflicted injuries on the person of Jitu Paswan. She has further testified that apart from the appellant-manoj Ram, other appellants also assaulted Jitu Paswan and made him injured. Again, she has testified that when Vijay Gope came there to rescue his friend-jitu Paswan, a dagger was dropped down by appellant- Kaushlya Devi which was held by appellant-subodh Ram and then she exhorted the others to kill the deceased and thereafter appellants-manoj Ram and Subodh Ram inflicted injuries upon Vijay Gope. Similarly, P.W. 4 has testified that when altercation took place on the matter relating to playing of music, appellant- Madan Ram made Jitu Paswan to fall on the ground and then appellant- Manoj Ram brought a dagger. Meanwhile, the informant lied down over the body of Jitu Paswan but appellant-manoj Ram pushed her away and then inflicted several injuries upon Jitu Paswan. When Vijay Gope came to rescue his friend-jitu Paswan, appellant-kaushlya Devi dropped down a dagger which was caught by appellant-subodh Ram and then appellants-manoj Ram and Subodh Ram inflicted injuries on the person of Vijay Gope. P.W. 10 has also testified that when he came to the place of occurrence, he saw that all the accused persons made Jitu Paswan to fall on the ground and then appellant- Kaushlya Devi dropped down a dagger which was held by appellant-subodh Ram who inflicted injuries upon Jitu Paswan. When Vijay Gope came to rescue his friend-jitu Paswan, appellants-manoj Ram and Subodh Ram also inflicted injuries upon him. The testimony of this witness is not in consistent with the testimonies of other witnesses, the reason being that he was not present at the time of altercation, rather as per his evidence, which was elicited in the crossexamination, he reached when Jitu Pawan had become injured and further he has himself testified that when he reached, he was told by the persons present over there that it was appellant-madan Ram and his sons who had killed both the deceased. Thus, the testimony of this witness never inspires

8 8 confidence to the belief. Coming to the testimonies of other evidences particularly P.W. 5, it does appear that when altercation took place, accused-madan Ram tried to strangulate the neck of Jitu Paswan. Meanwhile, appellant-manoj Ram, as per her earlier statement made in the ferd beyan, rushed towards home and brought a dagger, which fact has been testified by P.Ws. 1 and 4, and then inflicted several injuries upon Jitu Paswan. Thus, it is evident that the other appellants, namely, Vinod Ram, Vijay Ram and Ajay Ram, never did anything so as to come to the conclusion that they were also sharing common intention. However, P.W.1, as we have noticed earlier, has testified that all the appellants other than Madan Ram and Manoj Ram have assaulted Jitu Paswan but that piece of evidence is not in consistent with the evidence of other witnesses, as they had not said anything in this regard. Even if that piece of evidence, testified by P.W. 1, is taken to be true, it can never be said that the appellants-vinod Ram, Vijay Ram and Ajay Ram were sharing common intention, as it is the evidences of P.Ws. 1 and 4 that appellant-manoj Ram in the meantime went home and brought a dagger and therefore, it can easily be said that by that time there was no intention on the part of any of the appellants to commit murder of the deceased. Likewise appellants- Vinod Ram, Vijay Ram and Ajay Ram cannot be said to have shared common intention to commit murder of the deceased-vijay Gope, as it is the testimony of P.W. 5 that when Vijay Gope came to rescue his friend-jitu Paswan, appellants-subodh Ram held dagger which was dropped down by appellant- Kaushlya Devi and then inflicted injuries upon Vijay Gope. Similar is the testimony of P.W. 1 though the testimony of P.W. 4 is something different whereby he had said that this appellant also by assaulting made Vijay Gope to fall on the ground but that piece of evidence is not acceptable in view of testimony of the other eye witnesses. Thus, from the discussions made above, it is quite evident that the

9 9 prosecution has been able to establish that appellant-manoj Ram inflicted injuries upon the deceased-jitu Paswan and Vijay Gope. The testimonies of the witnesses get corroboration from the medical evidences but so far appellants-vinod Ram, Vijay Ram and Ajay Ram is concerned, they did not seem to have shared any common intention in committing murder of the deceased. Now coming to the case of the appellant- Kaushlya Devi, she has been alleged to have dropped down the dagger when altercation was going on and the said dagger was held by appellant-subodh Ram who, along with appellant-manoj Ram, is said to have inflicted injuries on the person of Jitu Paswan. According to P.W. 5, appellant- Kaushlya Devi simply dropped down a dagger, whereas as per the evidence of P.Ws. 1 and 4, appellant- Kaushlya Devi while dropping dagger exhorted the other appellants to kill both the deceased, but this piece of evidence cannot be said to be consistent with the evidence of the informant-p.w. 5. Moreover, this has never been the case of the prosecution, as has been made out in the ferd beyan, that appellant- Kaushlya Devi had exhorted the others to kill the deceased but the fact remains that she dropped down the dagger. In that event, it is to be considered whether that fact alone would be sufficient to hold her guilty for committing murder with the aid of Section 34 of Indian Penal Code. It be recorded that when altercation took place, appellant- Kaushlya Devi was never present at the place of occurrence and as such, the question does not arise of her participation in the altercation. However, when altercation was going on, she simply has been alleged to have dropped down a dagger and that too with cover and as such, actus reus can be said to be there on her part but mens rea was quite absent. In such event, when actus reus was there but mens rea was not there, one cannot be said to have shared the common intention. In this respect, we may refer to a decision rendered in a case of

10 10 Surendra Chauhan Vs. State of M.P. {(2000) 4 SCC 110}, wherein at paragraph-11 it has been held as under:- 11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every cases, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. In the circumstances, stated above, we do find that none of the appellants namely, Vijay Ram, Ajay Ram, Vinod Ram or Kaushlya Devi, had shared common intention for committing murder of the deceased- Jitu Paswan and Vijay Gope. Accordingly, the judgment -of conviction and order of sentence passed against them are hereby set aside and hence they are

11 11 acquitted from the charges levelled against them. Consequently, they are discharged from the liability of the bail bonds. So far appellant-manoj Ram is concerned, we, as discussed above, do find that consistent evidence is there against appellant-manoj Ram that he inflicted dagger injuries to both the deceased resulting into their death. We find him guilty for the offence under Section 302 of Indian Penal Code instead of Section 302/34 of Indian Penal Code. Accordingly, the judgment of conviction with modification as indicated above and order of sentence passed against him is hereby affirmed. In the result, this appeal stands partly allowed. (R.R. Prasad, J.) (Ravi Nath Verma, J.) Jharkhand High Court, Ranchi Dated the 18 th December, 2014 AKT/N.A.F.R.