Patna High Court
Mahendra Jha & Ors vs The State Of Bihar on 11 April, 2017
Author: Arun Kumar
Bench: Samarendra Pratap Singh, Arun Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.759 of 2011
===========================================================
Against the judgment of conviction dated 21.07.2011 and the order of sentence
dated 23.07.2011, passed by Dr. Ram Lakhan Yadav, the learned Additional
Sessions Judge, 1st, Madhepura, in Sessions Trial No.32 of 1989, arising out of
Kumarkhand P.S. Case No.19 of 1988.
===========================================================
1. Anmol Jha, Son of Saryug Jha.
2. Nirmal Jha, Son of Kirpakant Jha.
Both residents of Village Belasaddi, P.S. Kumarkhand (Srinagar), District
Madhepura.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
With
===========================================================
Criminal Appeal (DB) No. 703 of 2011
===========================================================
1. Mahendra Jha
2. Nagendra Jha
3. Subhash Jha @ Subhash Chandra Jha, All three sons of late Krishnakant Jha
4. Siyaram Ram, Son of late Kallo Ram
5. Kripakant Jha (since dead), Son of late Bachchu Jha
6. Shyamanand Jha, Son of late Kamlakant Jha
7. Amal Jha
8. Dilip Jha
9. Phool Jha, all three sons of late Kripakant Jha
10. Murli Jha, Son of Saryug Jha
11. Chhedi Jha, Son of late Bachcha Jha
12. Vishwanath Jha (since dead), Son of late Vidyanath Jha
All residents of Village Belasaddi, P.S. Kumarkhand (Srinagar), District
Madhepura.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
With
===========================================================
Criminal Appeal (DB) No. 1049 of 2011
===========================================================
Binod Jha, Son of late Krishnakant Jha, Resident of Village Belasaddi, P.S.
Srinagar (Kumarkhand), District Madhepura.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
===========================================================
2 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017
2 / 17
Appearance :
(In CR. APP (DB) No.759 of 2011)
For the Appellants : Mr. Kanhaiya Pd. Singh, Senior Advocate
(In CR. APP (DB) No.703 of 2011)
For the Appellants : Mrs. Soni Srivastava, Advocate
Ms. Madhuri Kumari, Advocate
Mr. Pramod Kumar Singh, Advocate
Mr. Shekhar Kumar Singh, Advocate
Mr. Pankaj Kumar Jha, Advocate
(In CR. APP (DB) No.1049 of 2011)
For the Appellant : Mr. Kumar Vishakanand, Advocate
(For the State in all the appeals)
Mr. A.K. Sinha, APP
Mr. S.C. Mishra, APP
Mr. S.B. Verma, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
and
HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ARUN KUMAR) Date: 11-04-2017 At the very outset, it is submitted by learned counsel for the appellants that during the pendency of the appeals, appellants, namely, Kripakant Jha and Vishwanath Jha of Cr. Appeal (DB) No.703 of 2011 have died, and in support of same a supplementary affidavit has been filed.
2. In the circumstances aforesaid, the appeal of appellants Kripakant Jha and Vishwanath Jha of Cr. Appeal (DB) No.703 of 2011, stands abated and the appeals survive in respect of the rest 13 appellants.
3. All the 15 appellants have been convicted under Sections 147/342/302/149 of the Indian Penal Code vide judgment of conviction and order of sentence, dated 21.07.2011 and 23.07.2011 3 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 3 / 17 respectively, passed by the learned Additional Sessions Judge-1st, Madhepura in Sessions Trial No.32 of 1989, arising out of Kumarkhand P.S. Case No.19 of 1988. For the offence under Sections 147 and 342 of the Indian Penal Code, all the appellants were sentenced to undergo rigorous imprisonment for one year and for the offence under Section 302 read with Section 149 of the Indian Penal Code, all the appellants were sentenced to undergo rigorous imprisonment for life. All the sentences were directed to run concurrently.
4. The prosecution case, as made out in the fardbeyan of Sitaram Jha, Son of Devanand Jha, Resident of Village Belasaddi, P.S. Kumarkhand, District Madhepura, recorded by Suresh Chandra Mishra, S.I.(PW8) on 18.08.1988 at 9.30 A.M. at Kumarkhand Police Station, in short is as follows:
The informant stated that his brother, namely, Ramesh Jha went to meet the call of nature early in the morning at 5.00 A.M. in the western side of the house. He too followed for the same purpose. As soon as his brother reached west to the Gabbi (a small water body), 25-30 people emerged from the nearby Khar and Patwa. The informant recognized 16 of them, namely, (1) Nirmal Kumar Jha (2) Amal Kumar Jha (3) Phul Kumar Jha (4) Dilip Kumar Jha, all sons of Kripakant Jha (5) Mahendra Jha (6) Nagendra Jha (7) Binod Jha (8) 4 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 4 / 17 Subhash Jha, all sons of Krishnakant Jha (9) Anmol Jha (10) Murli Jha, both sons of Sarjug Jha (11) Kamlakant Jha (12) Chhedi @ Murlidhar Jha (13) Kripakant Jha, all sons of Bachcha Jha (14) Siyaram Ram, son of Kallo Ram (15) Shyamanand @ Gulli Jha, son of late Kamlakant Jha and (16) Vishwanath Jha, son of late Vidyanath Jha, all residents of Village Belasaddi, P.S. Kumarkhand, District Madhepura. One of the accused, namely, Mahendra Jha exhorted others to kill Ramesh Jha whereupon Nirmal Jha, Binod Jha and Anmol Jha assaulted on his head and neck with farsa on account of which the victim sustained injuries and fell on the ground. On seeing the occurrence, the informant raised hulla whereupon Prabhunath Jha (not examined), Madhukant Jha (PW5), Yoganand Jha (PW4) and others came and all of them saw the accused fleeing. The informant assigned land dispute with Kripakant Jha as motive for the occurrence on account of which his brother Ramesh Jha has been killed.
5. On basis of fardbeyan, the police registered Kumarkhand P.S. Case No.19 of 1988 under Sections 147, 148, 149, 341 and 302 of the Indian Penal Code. After registration of the case, the police took restatement of the informant and proceeded for the place of occurrence at about 9.50 A.M. and reached there at 10.15 A.M. on 18.08.1988. The police inspected the place of occurrence and also prepared the inquest report of the dead body. The place of
5 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 5 / 17 occurrence was the field of Kedar Jha, which was situated 500 yards west to village Belasaddi. The place of occurrence was a barren filed and the bags of jute were stacked in the field 30 yards north-east to the place where the dead body was lying. He stated that there is a field of Kedar Jha and some bushes were found standing south to the place of occurrence. The police also took statement of the witnesses and in course of investigation did not find the case true against the two First Information Report named accused, namely, Kamlakant Jha and Vishwanath Jha, who were not sent up for trial whereas the other 14 First Information Report named accused were sent up for trial.
6. The learned Magistrate took cognizance and committed the case to the court of sessions. During trial, the court also summoned Kamlakant Jha and Vishwanath under Section 319 Cr.P.C. for facing trial. During trial one of the accused, namely, Kamlakant Jha died and as such the case proceeded against 15 accused persons.
7. The case of the defence, as appearing from the mode of cross-examination as well as their statement under Section 313 Cr.P.C. is of false implication because of enmity. It was further case of the defence that infact no one had seen the occurrence and the deceased was a renowned criminal and has been killed by some other persons and on account of enmity, the entire family and relatives of 6 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 6 / 17 Kripanath Jha have been implicated in this case. The trial court relying upon the evidence of the informant who had claimed to be an eye witness and also relying upon the evidence of PWs.1, 3, 4 and 5 convicted the appellants under Sections 147/342/302/149 of the Indian Penal Code.
8. The defence has assailed the impugned judgment of conviction and sentence on a number of grounds. However, before we consider the defence case, it would be expedient to examine the case of the prosecution in short. The prosecution examined altogether 9 witnesses. Out of these 9 witnesses, Sitaram Jha (PW6), the informant has claimed to be the eye witness of the occurrence. PWs.1, 3, 4 and 5 are chance witnesses who have claimed to have reached the place of occurrence on hearing the alarm raised by the informant and have also witnessed the accused persons fleeing away. Laloo Mahto (PW2) is a formal witness and has produced the medical register containing carbon copy of the post-mortem report before the court. Mahabir Prasad Sah (PW7) is also a formal witness who has proved the writings of the investigation officer on First Information Report. Dr. J.B. Singh (PW9) who was posted as Assistant Civil Surgeon, Kumarkhand had conducted post-mortem on the body of the deceased.
9. Sitaram Jha (PW6) is the informant of the case and the 7 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 7 / 17 full brother of the deceased. He has claimed to be an eye witness of the occurrence. In his evidence, he reiterated the prosecution case narrated in the First Information Report. He stated that on 18.08.1988, at about 5.00 A.M., his younger brother, namely, Ramesh Jha had gone to answer the call of nature towards west of the house. The informant too followed for the same purpose. As soon as his brother reached west to the Gabbi (a small water body), all of a sudden 25-30 persons came out of khar and jute stacks, variously armed with bhala, farsa, lathi and pistol. Out of 25-30 miscreants, the informant identified 16 of them. Out of these 16 persons, Anmol Jha, Nirmal Kumar Jha and Binod Jha were armed with farsa, Kamlakant Jha, Chhedi and Subhash Jha were armed with 303 and the rest were armed with lathi. On the order of Mahendra Jha, Nirmal Jha, Binod Jha and Anmol Jha assaulted on the head and neck of Ramesh Jha with farsa. It is further alleged that Chhedi also assaulted him with bhala. Thereafter on seeing the incident, the informant raised hulla whereupon Purandar Jha @ Brajnandan Jha (PW1), Arbind Jha (PW3), Yogendra Jha (PW4), Mdhukant Jha (PW5) and others came who saw the accused persons fleeing away. The informant stated that the accused persons have killed his brother because of previous litigations with Kripanath Jha and others on account of land dispute for which there was a proceeding under Section 107 also. 8 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 8 / 17
10. Purandar Jha @ Brajnandan Jha (PW1) is the cousin of the informant. He has also supported the prosecution case. He stated that he too had gone to nearby field for defecating. While he was defecating, he heard hulla coming from 100-150 yards. He saw the accused persons having surrounded the deceased Ramesh Jha. Soon after killing the deceased, the accused persons fled away. He has claimed to identify 16 of the accused persons, all named the First Information Report, while they were fleeing away.
11. Arbind Jha (PW3) is the full brother of PW1 and also cousin of the informant. He stated that he too had gone to nearby field for answering the call of nature. While he was at a distance of 400 yards, he heard hulla whereupon he saw the accused persons fleeing away. He recognized only eight of the accused persons named in the First Information Report. In his cross-examination, he admitted that he limps.
12. Yogendra Jha (PW4) is also a chance witness. He stated that on the day of occurrence at 5.00 A.M., he too had gone to the nearby field to graze she-buffalo and after hearing hulla he went towards the place of occurrence. He too has claimed to recognize 16 of the persons, while they were fleeing away.
13. Madhukant Jha (PW5) stated that he too had gone to the nearby field early in the morning to ease. After hearing hulla, he 9 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 9 / 17 reached the spot where he saw the dead body of the deceased. He stated that he learnt about the incident from the informant. He however, has claimed to have seen the accused persons fleeing away.
14. Dr. J.B. Singh (PW9) who conducted the post-mortem on the dead body of the deceased opined that death of the deceased was caused by sharp cutting weapon like farsa.
15. On basis of these evidence, the prosecution has tried to bring home the charge against the accused persons under Sections 302/149 and other allied sections of the Indian Penal Code.
16. We have heard different counsels representing the respective appellants in the three appeals. Mr. Kanhaiya Prasad Singh, the learned senior counsel who made the lead argument in the case submits that the occurrence took place early in the morning before the sun rise in the field 500 yards west to the village. This is a case of no evidence and infact none of the witnesses had seen the occurrence. He submits that the occurrence took place before the sun rise early in the morning and the deceased was a veteran criminal and was killed by some unknown persons and later only in the morning after the sun rise, the witnesses came to learn about the death of the deceased Ramesh Jha and on account of suspicion and previous enmity the prosecution has robbed the entire family and relatives of Kripakant Jha. He next submits that all the five witnesses, i.e., PWs.1, 3, 4, 5 and 10 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 10 / 17 6 who have claimed to have seen some part of the occurrence are not trustworthy and have tried to develop the case during the evidence. Furthermore, they are related with each other and interested witnesses and no independent witness has been examined. He submits that the original post-mortem report was not produced before the court and the doctor who conducted the post-mortem has not even mentioned the time since death. Furthermore, the finding of the doctor do not match with the time of occurrence given by the informant in the First Information Report and rather the findings reflect that the occurrence has taken place much earlier than the time mentioned in the First Information Report.
17. Mr. Pramod Kumar Singh and Mrs. Soni Srivastava, learned counsel representing the appellants of Cr. Appeal (DB) No.703 of 2011 alternatively argued that in any view of the matter the trial court erred in convicting the appellants under Sections 302/149 of the Indian Penal Code as there is nothing in the record to establish that they shared the common intention or common object of killing the deceased. They are said to be armed with pistol and lathi which admittedly they had not used.
18. Mr. Ashwani Kumar Sinha, the learned Additional Public Prosecutor appearing for the State has defended the judgment of conviction and sentence against the accused persons. He submits 11 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 11 / 17 that the occurrence has been witnessed by PW6 and has also been corroborated by other witnesses, namely, PWs.1, 3, 4 and 5. He submits that the evidence of these witnesses ought not to be discarded merely because they are relatives and interested witnesses. He also submits that by mistake, the doctor had over looked to mention the time of death, which was a bona fide mistake and it would not go to the root of the prosecution case.
19. We have heard learned counsel for the parties and perused the materials on record.
20. Learned counsel for the appellants submit that the witnesses are not trustworthy and they are all family members and have not seen the occurrence. They have implicated the appellants because of past enmity. It is well settled that the evidence of the witnesses, who are chance witnesses, ought not be discarded merely on the ground that they are interested and related to the informant. The Hon'ble Apex Court in the case of Harjinder Singh @ Bhola v. State of Punjab, reported in (2004) 11 SCC 253 state that evidence of interested witnesses should not be outrightly discarded but the same should be scanned with utmost caution and circumspection. In the light of settled law, we would now examine the evidence of the witnesses.
21. First of all, we would examine the evidence of the 12 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 12 / 17 informant PW6, who is the full brother of the deceased. The informant in his evidence stated that at about 5.00 A.M., his brother went towards west of the house for easing. He too went out of the house for the same purpose. He further stated that while he was at the distance of 100 yards away from his brother, he saw 25-30 persons variously armed emerging from the khar and jute stacks. He recognized 16 of them. Anmol Jha, Nirmal Kumar Jha and Binod Jha were armed with farsa, Kamlakant Jha, Chhedi and Subhash Jha were armed with fire arms and the rest were armed with lathi. He stated that on the order of Mahendra Jha, the accused Nirmal Jha, Binod Jha and Anmol Jha assaulted on the head and neck of Ramesh Jha with farsa causing grievous injuries leading to his instant death.
22. Learned counsel for the appellants have argued that this witness has tried to improve the case during the trial and as such he should not be held to be trustworthy. For instance, it was submitted that this witness in his evidence denied to have stated before the investigating officer that the deceased had gone out with torch and lathi. However, the investigating officer stated that another brother of the deceased has produced the torch and the lathi, which is alleged to have carried by the deceased while he had gone to answer the call of nature early in the morning. The appellants also tried to demonstrate that this witness in his evidence admitted that at the time of the 13 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 13 / 17 incident, there was no sun rise. On careful scrutiny of the evidence, we find that there is no major material contradiction in the evidence of this witness. In the First Information Report and in his evidence, this witness consistently stated that his brother had gone out to ease at 5.00 A.M. in the morning.
23. Purandar Jha @ Brajnandan Jha (PW1) has also claimed to have gone to defecate early in the morning on 18.08.1988. In chief, he has stated that he saw the accused persons assaulting the deceased. However, in his cross-examination, he stated that he was easing at a distance of 800 yards and on hearing hulla, he rushed to the place of occurrence and saw the accused persons fleeing from the place of occurrence. It is thus difficult to believe that PW1 was able to witness the occurrence. Besides this PW1 has tried to improve the case during trial. As such we do not find his evidence reliable on the point of manner of occurrence. However, we can believe the part of evidence, where he says that he has seen the accused persons fleeing away.
24. Arbind Jha (PW3) is also a close relative of the informant. He too has stated that on the relevant date, he was also easing in the nearby field at a distance of 400 yards. On hearing hulla, he proceeded to the place of occurrence and saw the accused persons fleeing away. As such, this witness too has not seen the actual manner 14 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 14 / 17 of occurrence and at best has seen the accused persons fleeing from the place of occurrence, after the incident.
25. Yogendra Jha (PW4) stated that at the relevant time, he had gone to graze his she-buffalo and he was at a distance of 400 yards south-east to the place of occurrence. In cross-examination, he admitted that the deceased had criminal antecedents. His evidence is also shaky on the point of manner of occurrence. He too has stated that he has seen the accused persons fleeing from the place of occurrence.
26. Madhukant Jha (PW5) is also a witness on the point of seeing the accused persons fleeing, as in his evidence he admitted that he learnt about the incident from the informant.
27. We thus find that apart from the informant, there is no reliable witness on the point of manner of occurrence. The evidence of PWs.1, 3, 4 and 5 are on the point of seeing the accused fleeing away from the place of occurrence, which are corroborative piece of evidence and supports the prosecution case.
28. The issue is whether the evidence of the informant and other witnesses are sufficient to bring home the charge of murder or having common object of committing murder of the deceased. The informant in the First Information Report stated that he saw only three of the accused persons, namely, Anmol Jha, Nirmal Kumar Jha and 15 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 15 / 17 Binod Jha assaulting the deceased. In the First Information Report, there is no whisper of assault against other appellants. However, in his evidence, he has stated that Chhedi Jha also assaulted by bhala, which infact is missing in the First Information Report and has not been corroborated by any other witness. The other witnesses too have not been found reliable on the point of manner of occurrence and at the best they are witness to the fleeing of the accused. As such, the materials on record are not sufficient to bring home the charge either under Sections 147, 342 and 302/149 of the Indian Penal Code against appellants other than Anmol Jha, Nirmal Kumar Jha and Binod Jha and as such, the conviction against them is set aside.
29. So far as appellants Anmol Jha, Nirmal Kumar Jha and Binod Jha are concerned, counsel for the appellants have argued that the prosecution has not been able to fully establish the time of occurrence of the deceased as the doctor has not given any opinion with respect to time elapsed since death.
30. Per contra, learned counsel for the State submits that the doctor, who examined the deceased after 30½ hours, found rigor mortis present on the body. Referring to Modi learned counsel submits that rigor mortis develops fully in the first 12 hours. Thereafter it remains so for another 12 hours and after 24th hour, it starts receding and the rigor mortis completely disappears in 36 hours. 16 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 16 / 17 It would appear that the doctor examined the deceased on 19.08.1988 at 11.30 A.M. He found stiffness in the body. Such opinion is not in conflict with the prosecution case as the stiffness would completely recede only after 36 hours. As per Modi, some stiffness still would be there.
31. In reply appellants contended that PW9 has proved only the copy of the post-mortem report prepared in the register with carbon process, which is kept as an official record. We find that PW2 has produced the official record and PW9 has proved his signature on the carbon copy prepared through mechanical process as such, we find that the post-mortem is rightly proved as an exhibit by the court. We further observe that not mentioning of time on the post-mortem report would be laches on the part of the doctor, which in itself would not in any manner discredit the evidence of the informant and other witnesses who have corroborated the prosecution case.
32. Situated thus and in view of the forgoing discussions, we find that the prosecution has been able to bring home the charge under Section 302/149 of the Indian Penal Code against Anmol Jha and Nirmal Jha, the two appellants of Cr. Appeal (DB) No.759 of 2011 and Binod Jha, the sole appellant of Cr. Appeal (DB) No.1049 of 2011. As such, Cr. Appeal (DB) No.759 of 2011 and Cr. Appeal (DB) No.1049 of 2011 are dismissed. The appellants would remain in 17 Patna High Court CR. APP (DB) No.759 of 2011 dt.11-04-2017 17 / 17 jail to serve the remaining part of the sentence after allowing permissible remissions. Cr. Appeal (DB) No.703 of 2011 succeeds. The appellants of Cr. Appeal (DB) No.703 of 2011 are on bail. They are discharged from the liabilities of their respective bail bonds.
(Samarendra Pratap Singh, J.) (Arun Kumar, J.) S.Kumar/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 21.06.2017 Transmission 21.06.2017 Date