Jharkhand High Court
Rabul Ansari vs The State Of Jharkhand on 4 August, 2018
Equivalent citations: AIRONLINE 2018 JHA 193, 2018 (4) AJR 66
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Criminal Appeal (D.B.) No. 717 of 2007
and analogous appeals.
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 717 of 2007
With
Criminal Appeal (D.B.) No. 719 of 2007
With
Criminal Appeal (D.B.) No. 806 of 2007
With
Criminal Appeal (D.B.) No. 958 of 2007
With
Criminal Appeal (D.B.) No. 1177 of 2007
(Against the Judgment of conviction dated 04.06.2007 and Order of sentence dated
06.06.2007, passed by the Additional Sessions Judge (F.T.C.-1), Bermo at Tenughat, in
Sessions Trial No. 391 of 2006).
-------------
Rabul Ansari ..... ... Appellant
[In Cr. Appeal(D.B.) No.717 of 2007]
Naushad Ansari ..... ... Appellant
[In Cr. Appeal(D.B.) No.719 of 2007]
Chhotu Ansari ..... ... Appellant
[In Cr. Appeal(D.B.) No.806 of 2007]
Daud Ansari @ Doud Ansari ..... ... Appellant
[In Cr. Appeal(D.B.) No.958 of 2007]
Jalil Ansari ..... ... Appellant
[In Cr. Appeal(D.B.) No.1177 of 2007]
Versus
The State of Jharkhand ..... ... Respondents
[In all the appeals]
-------------
For the Appellant(s) : Mr. A.K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
Mr. Sudhir Kumar, Advocate
Mr. Kashinath Rai, Advocate
Mr. Arwind Kumar, Advocate
Mr. Parijat Sinha, Advocate
For the Respondent-State: Mr. Mukesh Kumar, A.P.P. [In all cases]
-------------
PRESENT HON'BLE MR. JUSTICE H.C. MISHRA HON'BLE MR. JUSTICE B.B. MANGALMURTI
-------------
By Court.:- All these five appeals arise out of the same impugned Judgment, as such, they are heard together and are being disposed of by this common Judgment.
2. Heard learned counsels for the appellants and learned counsel for the State.
Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-2-3. The appellants are aggrieved by the impugned Judgment of conviction dated 04.06.2007 and Order of sentence dated 06.06.2007, passed by the learned Additional Sessions Judge (F.T.C.-1), Bermo at Tenughat, in Sessions Trial No. 391 of 2006, whereby, the appellants have been found guilty and convicted for the offences under Sections 148, 342 / 149 and 302 / 149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for three years for the offence under Section 148 of the Indian Penal Code, R.I. for one year for the offence under Sections 342 / 149 of the Indian Penal Code and imprisonment for life with fine of Rs. 10,000/- each, for the offence under Sections 302 / 149 of the Indian Penal Code. 60% of the fine, if deposited, was ordered to be given to the widows of both the deceased, viz., Jhun Jhun Devi and Munni Devi. All the sentences were directed to run concurrently.
4. The prosecution case was instituted on the basis of the fardbeyan of the informant Shital Mahli, recorded on 09.06.2006 on the road between the villages Lahertand and Purnapani near Kolgaria pond, at about 12:30 A.M. in the night. In the fardbeyan, it is stated that in the night between 08-09.06.2006, the informant along with his friends Ranjit Jaiswal and Rajan Mishra was going on a motorcycle to attend the marriage of the daughter of Late Mangar Singh in village Purnapani. At about 09:15 P.M. in the night, when they reached near Kolgaria pond, he saw in the light of motorcycle, and as it was a moonlit night, that his villagers Rabul Ansari, Azad Ansari, Mahmood Ansari, Naushad Ansari, Daud Ansari, Chhotu Ansari, Jalil Ansari and about 3 to 4 other persons, whom he could not identify, were armed with lathi, danda, farsa etc., and they stopped the motorcycle. Daud and Rabul started dragging Rajan Mishra from the motorcycle, and other accused persons started dragging Ranjit Jaiswal and the informant, but since the informant was sitting behind the motorcycle, he managed to run away to save himself and he saw that Rajan Mishra and Ranjit Jaiswal were shouting and they were being assaulted by the accused persons. In the meantime, two other motorcycles were coming from Lahertand village and in the light of those Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-3-motorcycles, he saw that accused persons were badly assaulting Ranjit and Rajan. The motorcycle riders also saw the occurrence and they stopped the motorcycles, whereupon, the accused persons started fleeing away. The informant upon seeing the motorcycles came there and saw that the occupants on those motorcycles were Hoga Lal Singh, Pramod Jaiswal, Kripa Shankar Jaiswal, Jayant Kumar Jaiswal and Jadunandan Jaiswal, and they were also going to take part in the same marriage. All of them saw the dead bodies of Rajan Mishra and Ranjit Jaiswal and the occurrence was also seen by the occupants of the motorcycles who were following. Thereafter, he went to village Purnapani and informed the persons there and thereafter he returned back to the place of occurrence. He has stated that the occurrence had taken place due to the fact that the accused persons were of criminal nature and these persons used to object their criminal acts. In the year 2005, the accused persons had cut a tree, about which the police was informed, and since then the accused persons were having grudge against them and they were giving threats to kill them. It is stated that for the said enmity, the accused persons had committed the murder of Rajan Mishra and Ranjit Jaiswal. On the basis of the fardbeyan of the informant Shital Mahli, Kasmar P.S. Case No. 33 of 2006, corresponding to G.R. No. 447 of 2006 was instituted for the offences under Sections 341, 342, 323, 324, 147, 148, 149, 307 and 302 of the Indian Penal Code, against seven named accused persons and three unknown persons, and investigation was taken up. After investigation, the police submitted the charge-sheet against the present accused persons.
5. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 341 / 149, 342 / 149, 147, 148 and 302 / 149 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined fifteen witnesses including the I.O. and the Doctor, who had conducted the post-mortem examinations on the dead bodies of both the deceased.
6. P.W.-1 Shital Mahli is the informant in the case. This witness has stated that the occurrence had taken place on 08.06.2006 in the night.
Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-4-He along with Ranjit Jaiswal and Rajan Mishra was going on a motorcycle to village Purnapani to attend the marriage of the daughter of Late Mangar Singh. At about 09:15 P.M. when they reached near Kolgaria pond, they saw that 8 to 10 persons were there armed with farsa, gupti, lathi etc., in which he identified Naushad Ansari, Daud Ansari, Chhotu Ansari and Jalil Ansari, but he could not identify three persons. Daud and Rabul got their motorcycle stopped and they started dragging Rajan Mishra and Ranjit Jaiswal. This witness ran to his safety, and he saw that the accused persons were assaulting Rajan Mishra and Ranjit Jaiswal by farsa, gupti, lathi etc. In the meantime, other motorcycle also came there and he saw the accused persons in the light of that motorcycle also, and the accused persons fled away. After the arrival of the motorcycle, this witness came there and saw Chhoga Lal Singh, Pramod Jaiswal, Kripa Shankar Jaiswal, Jayant Kumar Jaiswal and Yadunandan Jaiswal, who had also seen the occurrence and they were also going in the same marriage. All of them saw the dead bodies of Rajan Mishra and Ranjit Jaiswal. He went to the place of marriage and informed the people about the occurrence. The villagers also came there. At about 12:00 A.M. in the night, the police arrived and recorded his fardbeyan on which he put his signature. He has identified his signature and signatures of the witnesses Kripa Shankar Jaiswal and Jadunandan Jaiswal on the fardbeyan, which were marked Exts. 1, 1/1 and 1/2 respectively. He has stated that the accused persons were of criminal nature and the deceased persons had given the information to the police about cutting of a tree by them, and thereafter they were being threatened for being killed. This witness has also stated that his statement was also recorded under Section 164 of the Cr.P.C., on which also he has proved his signature, which was marked Ext. 1/3. He has identified all the five accused in the Court. This witness was put to extensive cross-examination, in which he has stated that he had no knowledge about the ownership of the motorcycle on which they were going, as it was taken by Ranjit from one of his friends. He has also stated that the occurrence had taken place near the house of one Buka Mian, in which the son of Buka Mian was living with his family. He has also stated that he had gone to inform the villagers Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-5-and thereafter he returned back to the place of occurrence, where he remained there from 12:00 A.M. till the morning, when the police removed both the dead bodies from there. In his cross-examination he has stated that he had concealed himself in a nearby ditch from where he had seen the occurrence. He has also stated that he had no enmity with the accused persons and he has admitted that Kripa Shankar Jaiswal and Jayant Jaiswal were related to the deceased Ranjit Jaiswal. To the suggestion given by the defence, he has stated that it not correct to say that he had seen the occurrence, but it appears only to be a slip of pen by the Presiding Officer recording the evidence. He has denied the suggestion of giving false evidence.
7. The other two eye-witness to the occurrence are P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal. Both these witnesses have stated that occurrence had taken place on 08.06.2006 in the night. At about 09:15 P.M. they were going on two motorcycles along with other persons to attend the marriage of the daughter of Late Mangar Singh in village Purnapani, and when they reached near Kolgaria pond, they saw in the light of motorcycles that Daud Ansari, Rabul Ansari, Azad Ansari, Mahmood Ansari, Naushad Ansari, Jalil Ansari and Chhotu Ansari, who were armed with deadly weapons, were making the assaults. Pramod Jaiswal, who was accompanying them, asked Rabul as to what he had done. Thereafter, Shital Mahli came there and from village Purnapani one Murli Kumhar also came there, and by that time, the accused persons had fled away. They saw the dead bodies of Ranjit Jaiswal and Rajan Mishra which were having bleeding injuries and Shital informed them that while they were going on the motorcycle, Daud and Rabul dragged Rajan Mishra from the motorcycle. P.W.-11 Kripa Shankar Jaiswal has also stated that Shital had also informed that Azad and Mahmood dragged Ranjit Jaiswal from the motorcycle. They were also informed that Shital Mahli ran away for his safety and concealed himself and saw the occurrence. These witnesses have stated that they also saw the occurrence of murder and there was a motorcycle lying there. The dead bodies were also there. They have stated that thereafter they sent Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-6-Shital Mahli and Murli Kumhar to the place of marriage to give the information there, and information was also given at the houses of the deceased persons. These witnesses have identified all the accused persons present in the Court. They have stated that the accused persons had gone to jail in connection with theft of wood and they were of the impression that the deceased persons were responsible for sending them to jail and they were threatening the deceased for killing them. Both of these witnesses were put to extensive cross-examinations, but there is nothing of much importance in their cross-examinations.
8. P.W.-2 Sona Ram Mahto, P.W.-4 Nirmal Jha and P.W.-6 Ashok Kumar Mishra, who is the brother of the deceased Rajan Mishra, are the hearsay witnesses to the occurrence, who had reached the place of occurrence after the occurrence, and they saw the dead bodies where they were informed about the occurrence. P.W.-2 Sona Ram Mahto has also stated that on 18.10.2005, the accused persons had cut his tree, whereupon, he had lodged a police case due to which the accused persons had given the threatening to kill. He has also stated in his cross-examination that he had no enmity with the accused persons, but he had lodged the case about the theft of wood. P.W.-4 Nirmal Jha is also the witness to the inquest-reports and he has proved his signatures on the inquest-reports, which were marked Exts. 1/4 and 1/5. All these witnesses have identified the accused persons in the Court.
9. P.W.-5 Murli Kumhar is also a hearsay witness who has stated that he had gone to attend the marriage of the daughter of Mangar Singh and about 09:00 P.M., after taking the light refreshment he was returning back to his house on a cycle. When he reached near Kolgaria pond, he saw some accused persons fleeing away. Thereafter, he saw that two other motorcycles also reached there and from a ditch Shital Mahli came. He also saw the dead bodies of the deceased and Shital Mahli informed them about the occurrence. This witness has stated in his cross-examination that he had not identified the accused persons while they were fleeing away.
10. P.W.-12 Rashmi Devi is the mother of the bride, whose marriage was taking place, and P.W.-7 Raju Singh was also present at the Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-7-house of marriage. Both these witnesses have stated that Shital Mahli came there and informed them that near Kolgaria pond Rajan Mishra and Ranjit Jaiswal were murdered by these accused persons, and thereafter he fell down and become unconscious, who was brought to consciousness by sprinkling water on him. P.W.-7 Raju Singh has stated in his cross-examination that he had met Shital Mahli, at the marriage house at about 08:00 P.M.
11. P.W.-9 Jhun Jhun Devi is the wife of the deceased Rajan Mishra and P.W.-10 Munni Devi is the wife of the deceased Ranjit Jaiswal. They have stated that they were informed by their respective brother-in-law about the incident that their husband had been killed. They are not the witnesses to the occurrence.
12. P.W.-3 Shankar Turi @ Kumhar has only come to depose that he was in jail custody in connection with a case and Daud Ansari, Rabul Ansari and Mahmood Ansari were also in jail custody in connection with the case relating to tree cutting, and there they used to talk to kill the deceased due to the fact that they had filed the case upon them.
13. P.W.-8 Manoj Kumar Tripathi is the Judicial Magistrate who had recorded the statement of the informant under Section 164 of the Cr.P.C., and he has proved the same, which was marked Ext.1/6.
14. P.W.-13 is Dr. Pancha Nand Prasad, who had conducted the post-mortem examinations on the dead bodies of both the deceased on 09.06.2006. On the dead body of Rajan Mishra, he had found the following ante-mortem injuries :-
(i) Cut injury on right forehead 2" x ½" x ½" cut injury of right frontal bone.
(ii) Cut injury on right eyebrow 1"x ½" x bone deep.
(iii) Cut throat injury on interior part of neck oblique right to left 5" x 2" x 2" leading to cut throat of trachea and major blood vessels of right side of neck.
(iv) Cut injury on dorsum of middle and index finger 1 ½" x ¼" x skin deep.
This witness has stated that all the above injuries were caused by sharp cutting and heavy weapon such as farsa and sword and were Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-8-ante-mortem in nature. The cause of death was due to hemorrhage and shock due to cut injuries and asphyxia.
On the same day, he had conducted the post-mortem examination on the dead body of Ranjit Jaiswal and had found the following ante-mortem injuries :-
(i) Deep cut injury right wrist joint about 3"x1½"x1".
(ii) Deep cut injury dorsum of left hand 3" x 2" x1", 3rd, 4th and 5th metacarpal bones fractured.
(iii) Deep cut injury from border of right ear to the border of left ear and fracture of both maxillary bones, and nasal cartilages and cut all the vessels of face.
(iv) Deep cut injury above upper lip damaging gum and teeth of upper jaw which was about 5" x 1 ½" x 4".
(v) Penetrating wound in the left eye damaging left eye ball.
He has stated that the weapon used was sharp cutting and heavy, such as farsa, sword and bhala. The cause of death was due to hemorrhage and shock. He has also proved both the post-mortem reports to be in his pen and signature, which were marked Exts.-2 and 2/1.
15. P.W.-15 is Arun Khalkho, the I.O. of the case. He has stated that on 09.02.2006 he was posted at Kasmar Police Station as S.I., and he was handed over the charge of investigation of this case by the then Officer-Incharge of the Police Station. He has stated that on 08.06.2006 at about 23:00 hours, there was an information in the Police Station that Ranjit Jaiswal and Rajan Mishra were murdered and the sanha entry was made about the said information and he along with the Officer-Incharge and the police party proceeded towards the place of occurrence at about 23:05 hours. At the place of occurrence, the fardbeyan of the informant Shital Mahli was recorded by the Officer-Incharge, and he had identified the same including the endorsements made thereon, which was marked as Ext.-3. He has stated that he was given the charge of investigation at the place of occurrence itself, and as it was night, the inquest reports of the dead bodies were prepared in the morning, which he has proved and the same were marked Exts. 4 and 5. This witness has also stated that he Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
-9-recorded the statements of the witnesses and he inspected the place of occurrence which he has detailed. He has stated that near the place of occurrence there was a ditch filled with rain water. There were several injuries on the dead bodies. He has also stated that the accused persons had criminal antecedents. He received the post-mortem reports and he got the statement of Shital Mahli recorded under Section 164 of the Cr.P.C. After completing the investigation, he submitted the charge-sheet. He has proved the formal F.I.R., which was marked Ext.6. In his cross-examination he has stated that information about the occurrence was received by the Officer-Incharge and as such, it could be explained by him. He had reached the place of occurrence at about 12:10 A.M. in the night and they remained at the place of occurrence for the whole night. He has also stated that it was a moonlit night. He has stated that though the distance between both the dead bodies was not recorded in the case diary, but that distance was about 50 steps. As the dead body of the deceased Ranjit Jaiswal was in a ditch filled with water, he did not find any blood stain on it, but he found blood stains on the dead body of Rajan Mishra and on the earth where the dead body was lying, but he did not seize either the blood stained earth or the blood stained clothes. He had seen a motorcycle fallen near the place of occurrence, but he had not prepared the seizure list. He has however, proved the documents of release of the motorcycle in favour of the owner, and they have been marked Exts. A and B at the request of the defence. He has denied the suggestion of making faulty investigation.
16. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No defence evidence was adduced on behalf of the defence, except the two documents which were proved through the I.O. P.W.-15 Arun Khalkho. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below, as aforesaid.
17. Learned counsels for the appellants have 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, Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 10 -
there was ample time for concocting the prosecution case, as the occurrence had taken place at about 9:15 P.M. to 9:30 P.M., whereas the F.I.R. was lodged after much delay at about 12:30 A.M., even though the Police Station was only about 12 Kms. away, as mentioned in the FIR. Learned counsels also submitted even the presence of the informant at the place of occurrence is very doubtful, in view of the admitted enmity with the accused persons, and had the informant been present at the place of occurrence, he would not have been spared as there were 11 accused persons, variously armed, and the informant was the lone surviver. Learned counsels further submitted that the presence of the informant, at the place of occurrence is absolutely doubtful also in view of the evidence of P.W.-7 Raju Singh, who has stated in his cross-examination that he had met Shital Mahli at the marriage house at about 8:00 P.M. It is also submitted that the other two eye witnesses, namely, P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal are related to the deceased and there was admitted enmity between them and as such, the false implication of the accused cannot be ruled out. Learned counsels further submitted that neither the blood stained clothes nor the blood stained earth was recovered from the place of occurrence and there is no recovery of any weapon of offence in the present case. It is also submitted by learned counsels that the brothers of both the deceased who are said to have informed the respective wives of the deceased persons, and the other three persons, accompanying P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal, or even the son of Buka Mian, near whose house the occurrence was committed, have not been examined by the prosecution, and this also makes the prosecution case absolutely doubtful. Learned counsels also submitted that though it is the case of the prosecution that assaults were also being made by lathi, but not a single injury caused by hard and blunt substance was found on the dead body. It is submitted that the Officer-in-Charge of the case, who was first informed about the occurrence, has not been examined in the case and this has caused serious prejudice to the defence. Lastly, learned counsels submitted that as against accused Rabul Ansari and Daud Ansari it has come that they were armed with sharp cutting weapons, Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 11 -
but as regards the other three accused appellants, there is no such evidence and accordingly, it cannot be said that these appellants were also sharing common object of committing the murder of the deceased. Learned counsels accordingly, submitted that the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts, and in any case, the appellants were entitled at least to the benefits of doubt.
18. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case has been fully supported by P.W.-1 Shital Mahli, P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal as eye witnesses to the occurrence and they had seen the entire occurrence in the light of motorcycles, as also in view of the fact that it was a moonlit night, and the accused persons, being the villagers, could be easily identified even in the moonlight. The fact that it was a moonlit night is also supported by P.W.-15 Arun Khalkho, the I.O. of the case. Learned counsel submitted that the other witnesses have also supported the case as hearsay witness and the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-13 Dr. Pancha Nand Prasad, and the post-mortem reports proved by him as Exts. 2 and 2/1 respectively. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against 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.
19. Having heard learned counsels for both the sides and upon going through the record, we find that P.W.-1 Shital Mahli, P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal are the eye-witnesses to the occurrence and they have fully supported the prosecution case. P.W.-1 Shital Mahli was accompanying both the deceased on the motorcycle and he had seen all these accused persons along with other accused persons in the light of the motorcycle when they stopped the motorcycle and they started dragging both the deceased. He ran for his safety and concealed himself in a ditch, which fact has come in the cross-examination of P.W.-1 Shital Mahli, from where he had seen the Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 12 -
entire occurrence in the moonlight. In the meantime, P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal also reached there with other persons on two motorcycles and there was light of these motorcycles too. All of them are witness to the occurrence of assaulting both the deceased to death, by these accused persons. As such, the identification of the accused persons, being the own villagers, cannot be doubted. P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal had not seen the occurrence as regards dragging of both the deceased from the motorcycle, and as such, they have stated about this fact as informed to them by the informant, but they had seen the accused persons assaulting both the deceased, and they had also seen the dead bodies with the bleeding injuries. These witnesses have also stated that after the occurrence they sent Shital Mahli and Murli Kumhar to the marriage place to inform the people there, and two witnesses from that place, namely P.W.-7 Raju Singh and P.W.-12 Rashmi Devi, the mother of the bride, have fully supported this fact that Shital Mahli came there, and informed them about the occurrence, and while informing, he became unconscious and he had to be brought to consciousness by sprinkling water. The other witnesses, namely, P.W.-2 Sona Ram Mahto, P.W.-4 Nirmal Jha and P.W.-6 Ashok Kumar Mishra had reached the place of occurrence upon getting the information, and they had seen the dead bodies of both the deceased and they were also informed about the occurrence. The wives of both the deceased had not gone to the place of occurrence and they were only informed about the occurrence by their respective brother-in-law.
20. Though learned counsels for the appellants have submitted that there was delay in filing the F.I.R., but we do not find any such delay in lodging the F.I.R. The occurrence had taken place at about 9:15 P.M. to 9:30 P.M. in the night and thereafter the informant had gone to the Purnapani village and when he returned back, by that time it was about 12 O' clock in the night. The evidence of the I.O. shows that the police had also reached the place of occurrence at about 12:10 A.M., and the F.I.R. was lodged at 12:30 A.M. As such, there is no delay in lodging the F.I.R.
Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 13 -
21. We also do not find any merit in the submission of the learned counsels for the appellants that there was ample time for concocting the prosecution case, due to delay in lodging the FIR. Had the evidence been concocted by the prosecution, P.W.-6 Ashok Kumar Mishra, who is the brother of the deceased Rajan Mishra, would not have examined himself as a hearsay witness, rather he would have tried to become the eyewitness to the occurrence.
22. The non-examination of the persons who were accompanying P.W.-11 Kripa Shankar Jaiswal and P.W.-14 Jayant Kumar Jaiswal, or the persons informing the respective wives of the deceased, or of the son of Buka Mian, whose house was nearby the place of occurrence, is not going to make any dent in the prosecution case, as it is a well settled principle of law that all the witnesses need not be examined. The submission of the learned counsels for the appellants that the non-examination of Officer-Incharge who had received the first information, has caused serious prejudice to the defence, is also of no avail to the defence, in view of the fact that the I.O. has clearly stated that it was only an information about the two murders at the place of occurrence, for which the sanha entry was made. Though fact remains that blood stained clothes and the blood stained earth were not seized from the place of occurrence, as admitted by the I.O. of the case, but this also is not fatal to the prosecution, in view of the evidence of the eye-witnesses that they had seen the accused persons assaulting the deceased. All the witnesses who reached there, including the I.O., had seen the dead bodies of both the deceased with several bleeding injuries on the dead bodies.
23. In view of the evidence of the eye-witnesses that all the accused persons were assaulting both the deceased, we are of the considered view that all the accused had committed the murder of both the deceased in the prosecution of the common object of the unlawful assembly of which they were members, being armed with deadly weapons. It is not a case where these accused persons, or any of them was only a member of the unlawful assembly, not taking active part in the assault of the deceased, rather there is specific evidence that all these accused persons were Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 14 -
assaulting both the deceased causing their death at the spot. The fact that no injury caused by hard and blunt substance was found on the deceased, is not fatal to the prosecution, as several injuries were found on the dead bodies caused by sharp cutting weapon. The ocular evidence of all the witnesses is fully corroborated by medical evidence of P.W.-13 Dr. Pancha Nand Prasad and the post-mortem reports proved by him as Exts. 2 and 2/1, and this witness has found four incised wounds on the dead body of Rajan Mishra also cutting the throat and trachea and the blood vessels of the neck, and four incised wounds and one penetrating wound on the deceased Ranjit Jaiswal, and all these injuries clearly show that they were sufficient in the ordinary course of nature to cause the death of both the deceased.
24. The submission of learned counsels that even the presence of the informant at the place of occurrence is very doubtful, has no legs to stand. Only because of the fact that the informant managed to save himself, and P.W.-7 Raju Singh, has stated in his cross-examination that he had met Shital Mahli at the marriage house at about 8:00 P.M., cannot make his presence at the place of occurrence doubtful, so as to completely discard his evidence, which otherwise appears to be trustworthy, and corroborated by the evidence of the other witnesses. We are of the considered view that the prosecution has been able to bring home the charges against all 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.
25. In view of the foregoing discussions, we do not find any illegality in the impugned Judgment of conviction dated 04.06.2007 and Order of sentence dated 06.06.2007, passed by the learned Additional Sessions Judge (F.T.C.-1), Bermo at Tenughat, in Sessions Trial No. 391 of 2006, convicting and sentencing the appellants for the offences under Sections 148, 342 / 149 and 302 / 149 of the Indian Penal Code, which we hereby, affirm. The appellants Rabul Ansari, Chhotu Ansari Daud Ansari @ Doud Ansari and Jalil Ansari are already in custody, undergoing the sentence. The appellant Naushad Ansari (in Criminal Appeal (D.B.) Criminal Appeal (D.B.) No. 717 of 2007 and analogous appeals.
- 15 -
No. 719 of 2007) is on bail. His bail is hereby, cancelled and he is directed to surrender in the Court below forthwith, for serving out the sentence passed by the Trial Court below. The Trial Court below is also directed to issue the process forthwith, compelling the surrender / production of the appellant Naushad Ansari in the Court below, for serving out the sentence.
26. Before parting with this Judgment, we must record that P.W.-9 Jhun Jhun Devi and P.W.-10 Munni Devi, are the victims of the crime, as both of them have lost their husband. We are of the considered view that both these victims of crime should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned DLSA, so that adequate compensations are paid to both these victims 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.
27. In the result, we do not find any merit in all these appeals and all these five appeals are 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 4th August, 2018.
Birendra / R.P./NAFR