Jharkhand High Court
Mohan Sao vs The State Of Jharkhand on 16 September, 2023
Bench: Shree Chandrashekhar, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 775 of 2018
-------
1.Mohan Sao, aged about 52 years, son of late Nathni Sao, resident of
village Barbadih, PO &PS Haidarnagar, District Palamau
2.Birendra Sao, aged about 32 years, son of late Lakhan Sao, resident of
village Obra, PO Anraj Nawadih, PS Garhwa, District Garhwa
......Appellants
Versus
The State of Jharkhand ..... Respondent
with
Criminal Appeal (DB) No. 976 of 2023
-------
1.Nand Kishor Sao @ Nandkeshwar Sao, aged about 70 years, son of late
Jokhan Sao
2.Leelawati Devi, aged about 65 years, wife of Nand Kishor Sao
3.Sangeeta Kumari, aged about 24 years, daughter of Nand Kishor Sao
All residents of village Peshka, PO &PS Meral, District Garhwa (Jharkhand)
......Appellants
Versus
The State of Jharkhand ... Respondent
with
Criminal Appeal (DB) No. 977 of 2023
-------
Deepak Sao @ Deepak Kumar, aged about 23 years, son of Nand Kishor
Sao, resident of village Peshka, PO &PS Meral, District Garhwa
(Jharkhand) ......Appellant
Versus
The State of Jharkhand ... Respondent
---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant : Mr. A. K. Kashyap, Sr. Advocate
[in Cr. A (DB) Nos. 976 and 977 of 2023]
Ms. Renu Bala, Advocate
[in Cr. A (DB) No. 775 of 2018]
For the State : Mrs. Vandana Bharti, APP
[in Cr. A. (DB) No. 775 of 2018]
Ms. Nehala Sharmin, Spl. PP
[in Cr. A (DB) No. 976 of 2023]
Mrs. Priya Shrestha, Spl. PP
[in Cr. A (DB) No. 977 of 2023]
---------------
2 Cr. A (DB) No. 775 of 2018 and analogous cases
JUDGMENT
16th September 2023 Per, Shree Chandrashekhar, J.
Mohan Sao and Birendra Sao who are convicted and sentenced to imprisonment for life with a fine of Rs. 10,000/- each under section 302 of the Indian Penal Code with a default stipulation to undergo RI for six months have challenged the judgment in Sessions Trial No. 19 of 2014 by filing Criminal Appeal (DB) No. 775 of 2018.
2. Criminal Appeal (DB) No. 976 of 2023 has been filed by Nand Kishor Sao, his wife Leelawati Devi and daughter Sangeeta Kumari who are convicted and sentenced on separate counts for committing the offence under section 324/34 of the Indian Penal Code in the aforementioned sessions trial.
3. Deepak Sao who has been convicted and awarded RI for four years for committing the offence under section 326 of the Indian Penal Code in Sessions Trial No. 19 of 2014 is the appellant in Criminal Appeal (DB) No. 977 of 2023.
4. In Sessions Trial No. 19 of 2014, seven accused were put on trial and twenty witnesses were examined by the prosecution to establish the charge under section 307/149 of the Indian Penal Code against Leelawati Devi, Sangeeta Kumari, Birendra Sao, Mohan Sao, Deepak Sao and Nand Kishor Sao; charge under section 302/149 of the Indian Penal Code against Mohan Sao, Birendra Sao and Deepak Sao and; charge under section 27 of the Arms Act against Birendra Sao, Mohan Sao and Deepak Sao. The aforesaid charges were framed against the above-named accused on 12th March 2013 which they denied and claimed trial.
5. At the outset, this needs a mention that no charge under section 302/34 of the Indian Penal Code was framed against the appellants but if this Court finds that the prosecution brought such evidence which established common intention of the accused, irrespective of whether a specific charge under section 302/34 of the Indian Penal Code was framed or not, conviction of the appellants, namely, Mohan Sao and Birendra Sao can be sustained under section 302/34 of the Indian Penal Code.
6. On the issue of the power of the Criminal Court to convert the 3 Cr. A (DB) No. 775 of 2018 and analogous cases conviction of the accused with an aid of section 34 of the Indian Penal Code even where the accused were charged under section 149 of the Indian Penal Code is not in doubt, we may usefully turn to "Dhanna v. State of M.P." (1996) 10 SCC 79 wherein the Supreme Court discussed the law on the subject, as under:
"6. The learned counsel for the appellants contended that the High Court committed a basic error in seeking the aid of Section 34 IPC for confirming the conviction of the appellants for the offence under Section 302 IPC. So long as the charge framed against them did not mention Section 34 of IPC, the High Court was not justified in using the said provision for convicting the appellants, according to the learned counsel.
7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into "unlawful assembly". But if the Court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the Court is not helpless in seeking the aid of Section 34 (IPC) to enter a conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping (Barendra Kumar Ghosh v. King Emperor).
8. Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P., where this Court observed at para 86, thus:
"Sections 34, 114 and 149 of the Penal Code, 1860 provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
9. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Amar Singh v. State of Haryana, Bhoor Singh v. State of Punjab.) The first submission of the learned counsel for the appellant has no merit."
7. About twelve kilometers from the police station at Meral, a quarrel started in the early morning of 21st June 2013 between the members of two families who are the agnates of each other - except Birendra Sao and Mohan Sao who are son-in-law of Nand Kishor Sao. In the ensuing marpit, Jai Ram Sao, Saroj Devi and Baccha Sao suffered firearm and other injuries and they were taken to the Garhwa Sadar Hospital for their treatment. Jai 4 Cr. A (DB) No. 775 of 2018 and analogous cases Ram Sao gave his fardbeyan around 3:30 PM on the same day in the emergency ward of Garhwa Sadar Hospital before the Officer-in-Charge of Meral PS. He made serious allegations against the above-named accused of attempting to commit murder and causing serious injuries to him and other members of his family. According to the prosecution, after murderous attacks on Jai Ram Sao and his family members the accused tried to escape from the place of occurrence when the villagers came there. This is the further case of the prosecution that when the villagers started chasing them so as to apprehend them Birendra Sao, Mohan Sao, Deepak Sao and Pancham Sao ran towards Gurgurwa Dam and, on the way, they encountered Umesh Bhuiyan and Firoj Ansari upon whom they fired from pistol and, as a result of which, Umesh Bhuiyan died and Firoj Ansari suffered serious injury in his abdomen. On the basis of the fardbeyan of informant, Meral PS Case No. 109 of 2013 was registered against seven persons under sections 147, 148, 149, 341, 323, 307, 302 and 504 of the Indian Penal Code and section 27 of the Arms Act.
8. On 21st June 2013, Dr. Deepak Kumar Sinha examined Jai Ram Sao, Firoj Ansari, Baccha Sao and Saroj Devi and observed the following injuries over their person:
"Jai Ram Sao
(i) one charring oval shape firearm wound measuring about ½ inch x ¼ inch, muscle deep over left knee of lower border
(ii) one lacerated wound with inverted margin about ½ inch x ½ inch in dimension, muscle deep over knee caused by firearm. Firoj Ansari
(i) lacerated wound with charred margin - surrounded by abrasion at edge -
measuring ½" x ½" x ½" at left side of iliac crust - caused by firearm. Baccha Sao
(i) lacerated wound measuring 3" x 2' x bone deep with small bone particles present over anterior surface over lower 1/3rd of right leg - nature grievous
- caused by HBS. X-ray right leg shows fractured tibia lower 1/3rd.
(ii) lacerated wound 2" x 1" with bone deep in middle of left tibia anteriorly
- nature grievous - caused by HBS. X-ray left leg shows fractured tibia of middle 1/3rd and upper 1/3rd junction.
(iii) lacerated wound measuring 2" x 2" bone deep with clinically fractured bone on lower 1/3rd of left lower limb with blacken and inverted margin - nature grievous - caused by firearm.
(iv) Pain with swelling on right arm with one lacerated wound external aspect measuring 1" x 1" bone deep. X-ray right arm APN lateral view shows fracture - nature grievous caused by HBS.
(v) one lacerated would over left half of skull in frontal region measuring 2"
x 1" bone deep - nature simple - caused by HBS.
Saroj Devi
(i) swelling with abrasion ¼" x ¼" over distal 1/3rd of fore right arm -5 Cr. A (DB) No. 775 of 2018 and analogous cases
nature grievous - caused by HBS. X-ray fore arm AP lateral view shows fracture of distal and of fore right arm.
(ii) abrasion 2" x 2" over posterior surface of skull - nature simple - caused by HBS. X-ray of skull AP lateral view shows NAP"
9. Five witnesses are examined by the prosecution projecting them as eyewitness. PW5 Firoj Ansari, PW6 Saroj Devi, PW7 Jai Ram Sao and PW19 Baccha Sao are injured witnesses and PW10 is Mukhiya of the village. As PW11, Dr. Deepak Kumar Sinha proved injury reports vide exhibits-2 to 2/3 and deposed in the trial that on 21 st June 2013 he examined Baccha Sao, Firoj Ansari, Saroj Devi and Jai Ram Sao and found antemortem injuries on their person. PW11 supported the prosecution story that Baccha Sao, Firoj Ansari and Jai Ram Sao suffered firearm injuries in the occurrence and Saroj Devi was assaulted by hard and blunt substance and she suffered injuries over posterior of scalp and in the right arm. PW5, PW6, PW7 and PW19 are injured witnesses who came in the dock to give a vivid description of the incident of the morning of 21 st June 2013. The evidence of an injured witness lends assurance to the Court that the witness was present at the place of occurrence. Quite naturally, the narration of the incident by such a witness is normally accepted by the Courts except where it suffers from some inherent inconsistency or improbability.
10. In "Balu Sudam Khalde v. State of Maharashtra" 2023 SCC OnLine SC 355 the Hon'ble Supreme Court has observed as under:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
11. Mr. A. K. Kashyap, the learned senior counsel for the appellants submits that the prosecution witnesses who spoke lies in the Court have 6 Cr. A (DB) No. 775 of 2018 and analogous cases rendered themselves unreliable and on the basis of their evidence conviction of the appellants cannot sustain. The learned senior counsel referred to the testimony of witnesses and submitted that PW6 stated that Birendra Sao and Mohan Sao were carrying guns whereas PW7 made allegation of firing by Mohan Sao which is contrary to the allegation in the First Information Report that Birendra Sao fired at him. The learned senior counsel further submits that PW7 is contradicted by his wife who herself made a statement in the Court that Deepak Sao and Pancham Sao assaulted her, but contrary to this, PW7 made allegation of assault upon his wife by Leelawati Devi.
12. The defence set up by the accused is that there is a longstanding land dispute between the parties and on the day of the occurrence the prosecution party was trying to raise new construction which was objected to by the accused persons, whereupon a quarrel took place between them. PW6 admitted in the cross examination that the cause for the incident in the morning of 21st June 2013 was a land dispute since last 5-6 years. She further admitted that the accused are her agnates and they were in possession of the disputed piece of land. She further admitted that the accused were living in the adjoining house and they were raising objection to construction of a new house by her family members over a piece of adjoining land which the accused were claiming. PW7 gave a description of his house and co-villagers who are his neighbors; but none of them tendered evidence in his support. He also admitted that the accused were his Gotiayas and the distance between their house was about 200 meters. He also admitted that there were 17-18 Court cases between the parties and a new house was being constructed before the incident of marpit took place on 21st June 2013. The testimony of PW8 who is the niece, PW9 who is the brother and PW19 who is the father of the informant are no different on the aforementioned aspect of the case.
13. On the basis of the admissions of these witnesses in the cross examination, it is contended that the material witnesses for the prosecution had a reason to make exaggerations and improvements in the Court to falsely implicate the appellants with whom they were fighting Court cases since last several years.
14. The incident occurred in front of the house of the injured witnesses and this is the prosecution evidence that the accused were almost 7 Cr. A (DB) No. 775 of 2018 and analogous cases next-door neighbors residing at a distance of about twenty yards. The presence of PW6, PW7 and PW19 at the place of occurrence is quite natural and in fact there seems to be no attempt by the defence to challenge their presence at the time of first part of the occurrence which took place in the village around 08:00 AM on 21st June 2013. According to PW6, Nand Kishor Sao and his family members were assaulting her father-in-law Baccha Sao, her husband, brother-in-law and father-in-law with lathi danda. Deepak Sao and Pancham Sao were carrying lathi and Birendra Sao and Mohan Sao had gun in their hand. PW6 made allegation of assault upon her by Deepak Sao and Pancham Sao as a result of which she suffered head injury and a broken hand; Deepak Sao and Pancham Sao assaulted her father-in-law with lathi and broke both his hands and legs and; Mohan Sao fired at her husband. PW4 deposed in the Court that Mohan Sao fired at PW7 and Birendra Sao caused firearm injury to his father Baccha Sao. He further stated in the Court that Leelawati Devi, Kanchan Sao, Nanhu Sao, Deepak Sao and Birendra Sao assaulted Jai Ram Sao, Baccha Sao and Saroj Devi with lathi. PW6 supported PW4 to the extent that Mohan Sao fired at PW7 who is her husband. PW7 also stated that Mohan Sao fired at his left leg and further stated that PW6 suffered head and hand injuries due to assault upon her by Leelawati Devi. PW10 is the Mukhiya of village Peshka. He deposed in the Court that on his call the villagers rushed towards the house of PW7 and when Mohan Sao, Birendra Sao, Pancham Sao and Deepak Sao started fleeing away the villagers chased them. PW10 also went behind them on a motorcycle along with the villagers who were chasing the accused. His statement that he saw firing upon Umesh Bhuiyan and Firoj Ansari has remained intact and there is no reason to disbelieve his testimony in the Court. He was present in Sadar Hospital at Garhwa when PW7 gave his fardbeyan to the Officer-in-Charge of Meral PS - PW10 is the signatory to the First Information Report. He is an independent witness and his testimony in the Court cannot be disbelieved on the ground that he admitted in the cross examination that he had a dispute with accused. PW19 who also suffered firearm injury said in the dock that Deepak Sao, Birendra Sao, Pancham Sao, Sangeeta Kumari, Leelawati Devi and Mohan Sao assaulted PW6.
15. In a criminal trial, eyewitness account of the occurrence as 8 Cr. A (DB) No. 775 of 2018 and analogous cases narrated by a prosecution witness is accepted by the Court notwithstanding minor omission, inconsistency or exaggeration in his testimony. No doubt the testimony of an eyewitness is not accepted as a gospel truth and wherever a plea of enmity is set up by the defence the Court is required to scrutinize the testimony of the interested witnesses with due care and caution. At the same time, this has to be remembered that there is no bar in law in examining an inimical, interested or related witness to support the prosecution case. A witness may be closely related to the victim or inimical to the accused but on that ground his testimony cannot be treated as tainted. When a crime is committed in the circumstances as described by the witnesses in the present case the family members and co-villagers are the most natural and competent witnesses. In "Masalti v. State of U.P" AIR 1965 SC 202 the Hon'ble Supreme Court put a note of caution that mechanical rejection of evidence of interested witnesses on the sole ground that it is partisan would invariably lead to failure of justice. This is well remembered that relationship is not considered an important factor to affect credibility of a witness because it is more often that the relatives would not conceal the actual culprit and make allegation against their enemy. Sometimes that may happen on account of suspicion but the judgment of conviction must be based on evidence in the Court. There is another rule of caution that wherever it is shown to the Court that the parties are at loggerheads, the criminal Courts must scrutinize the testimony of an interested/inimical witness with due care and caution.
16. In "Ramashish Rai v. Jagdish Singh" (2005) 10 SCC 498 the Hon'ble Supreme Court has observed as under :
"7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. ..."
17. This is the prosecution evidence that about a dozen persons were involved in a quarrel in the morning of 21st June 2013. According to the prosecution, Mohan Sao, Birendra Sao and Deepak Sao were carrying guns and the others were assaulting the prosecution party with lathi danda. In the ensuing commotion, Birendra Sao and Mohan Sao fired from gun 9 Cr. A (DB) No. 775 of 2018 and analogous cases whereafter it is quite obvious that the prosecution witnesses would have tried to save themselves. In a crime scenario like this, it is not expected that the prosecution witnesses would recount in the Court who gave how many blow(s) upon whom and it is natural that there would be some discrepancy in their evidence. This is a well settled proposition in law that there is bound to be some omission, inconsistency or exaggeration in the testimony howsoever honest the witness may be [refer: "State of Rajasthan v. Kalki"
(1981) 2 SCC 752].
18. PW4 and PW7 are the sons and PW6 is the daughter-in-law of PW19. They are the prime witnesses for the prosecution who suffered injuries at the hands of the appellants and Pancham Sao who died before the trial started. They have narrated the occurrence in village Peshka and supported the prosecution story of attack on them in a natural way. Their presence in their house in the early morning cannot be disbelieved. PW11 found grievous injury over right arm and simple abrasion injury around posterior surface of scalp of PW6 both caused by hard and blunt substance. PW11 who examined Baccha Sao on the same day found four lacerated wounds two of which were grievous in nature, one was caused by a firearm over middle left iliac and one bone deep injury around left side of skull in the frontal region. The aforementioned descriptions of the injuries are corresponding to the testimony of PW4, PW6, PW7 and PW19 and thus the assault upon PW6, PW7 and PW19 is established. The prosecution has established beyond reasonable doubt that in the morning of 21st June 2013 around 8:30 AM Birendra Sao and Mohan Sao fired at PW7 and PW19. This is also established that Nand Kishor Sao, Sangeeta Kumari, Leelawati Devi and Deepak Sao were present at the first place of occurrence and participated in the incident, albeit not with a common intention to attempt to murder or grievous hurt to the prosecution witnesses. In our opinion, the prosecution has proved the charge of attempt to murder against Birendra Sao and Mohan Sao; that Deepak Sao committed offence under section 326 of the Indian Penal Code and; the offence under section 324/34 of the Indian Penal Code against Nand Kishor Sao, Leelawati Devi and Sangeeta Kumari has been proved.
19. Death of Umesh Bhuiyan and firearm injury to Firoj Ansari are attributed to Mohan Sao and Birendra Sao.
10 Cr. A (DB) No. 775 of 2018 and analogous cases20. PW12 was a member of the Medical Board which conducted postmortem examination and found the following antemortem injuries on the dead body of Umesh Bhuiyan:
"(i) superficial skin burns over anterior chest wall. Axillary and left forearm caused by blast injury.
(ii) a penetrating lacerated wound 1" x ½" oval in shape at left anterior axillary line with charring of skin around wound. This was entry wound.
(iii) one oval shaped lacerated would over right posterior skin at D-seven level. Size 2" x 2" inverted margin it was exit wound."
21. PW13 who was also a member of the Medical Board constituted for postmortem examination of the deceased Umesh Bhuiyan stated that the cause of death was shock and hemorrhage by firearm injury.
22. PW11 observed one charring lacerated wound of the size of ½"
x ½" x 1/2" on left side of iliac crust of Firoj Ansari caused by firearm. Firoj Ansari tendered evidence in the Court as PW5 and stated that Mohan Sao fired upon Umesh Bhuiyan. He stated thus :
"1- vkt eSa x<ok tsy ls xokgh nsus ds fy, U;k;ky; ds vkns'k ls izLrqr fd;k x;k gWwA esjk ?kj xzke dksVke gS rFkk xzke dksjck x<ok ftyk esa dksbZ xkao ugha gSA 2- ;g ?kVuk vkt ls djhc ,d lky igys dh gSA ml le; 10&11 cts fnu FkkA vekur valkjh esjk eksVj lkbfdy ysdj tk jgk Fkk mldks jksdus ds fy, eSa nwljs eksVj lkbfdy ls x;k D;ksafd eq>s vius eksVj lkbfdy ls llqjky tkuk Fkk rFkk tc eSa ugh ds iqy ds ikl igqapk rks vekur esjk eksVj lkbfdy [kMk djds eksgu flag] fnid rFkk ,d vU; iq:"k rFkk nks efgyk ds ihNs Hkkx jgk FkkA 3- rHkh eksgu xksyh pyk fn;k vkSj eq>s isV esa xksyh yx x;h ftlls esjs isV esa t[e gks x;kA eq>s rFkk mes'k Hkwb;ka dks Hkh xksyh yxk ftlls og ej x;kA ckn esa eSa dqN ugha lqukA eq>s xksyh eqjxjok Mse ds ihNs lMd ds fdukjs yxk FkkA 4- esjk x<ok esa bZykt gqvk rFkk jkaph esa jsQj dj fn;k x;k rFkk ogka eSa 8&7 fnu jgkA iqfyl eq>ls x<ok vLirky esa iwNrkN fd;k FkkA vkt U;k;ky; esa mifLFkr vfHk;qDrx.k mlesa ,d efgyk ftldk uke ugha tkurk gWw] nhid dks igpkurk gwW rFkk nqljs iq:"k dk uke ugha tkurk gwW D;ksafd og nwljs xkao dk gS rFkk U;k;ky; esa mifLFkr nks vkSj vfHk;qDr dks igpkurk gwW ftlesa ls ,d eksgu lkg gS rFkk nwljs dk uke ugha tkurk gwWA""
English Translation :
1.Today I have been produced from Garhwa jail to give my evidence. My home is at village Kottam and Korba is not a village in the district of Garhwa.
2. The incident happened around 10:00-11:00 AM. Amanat Ansari had taken away my motorcycle but I had to visit my in-laws place and therefore I proceeded on another motorcycle to stop him. When I reached near the dam, I saw that Amanat Ansari had parked my motorcycle there and was chasing Mohan Singh, Deepak and one male person and two women.
3. At that time, Mohan fired which hit me and due to which there was injury in my stomach. Besides me, Umesh Bhuiyan also suffered firearm injury on account of which he died. Thereafter I could not hear anything. I suffered firearm injury on a road behind Murgarwa Dam.
4. I was treated at Garhwa and referred to Ranchi where I remained admitted for 7-8 days. The police had made inquiry from me. Today I identified the accused who are present in the Court, amongst them I do not know name of 11 Cr. A (DB) No. 775 of 2018 and analogous cases one woman; I know Deepak but I do not know name of the other person because he belongs to another village and I identified two other accused who are present in the Court, one among them is Mohan Sao and I do not know name of the other person."
23. On 09th June 2014, Mohan Sao and Birendra Sao were produced in the Court from the jail custody and PW5 identified him by name and he identified the other accused by face. PW5 was truthful to the Court inasmuch as he admitted that he does not know the other accused by name. The defence set up by the accused is that the village Peshka and the adjoining villages are the center for Maoist activities and attacks and Umesh Bhuiyan and Firoj Ansari were informers of the police and therefore killed by the extremists. PW4 denied in the Court that Umesh Bhuiyan and Firoj Ansari are extremists and Firoj Ansari was sent to jail. However, PW5 himself admitted in the Court that he was in the judicial custody but denied that several villages such as Kalyanpur, Chama, Peshka, Garua, Soti and Kottan etc. within the district of Garhwa were affected with extremist activities and they have committed 25-30 murders in the area. PW6 and PW7 also denied in the Court that Umesh Bhuiyan and Firoj Ansari suffered firearm injuries at the hands of the extremists or in the exchange of fire between the police and extremists.
24. Except the aforementioned defence set up by the appellants, none of the prosecution witnesses was tested in the cross examination as regards truthfulness of their statements made in the examination-in-chief. The statement of PW5 that Mohan Sao, Deepak Sao and one other male person were fleeing away and Mohan Sao fired at him was not even challenged by the defence. Umesh Bhuiyan suffered firearm injury at the same time and the evidence of PW5 that he knew Deepak Sao and Mohan Sao must be deemed to have been admitted by the defence inasmuch as PW5 was not even cross examined or confronted with his previous statements made before the police.
25. As regards the second part of the incident, PW6 nowhere claims in her examination that she is an eyewitness to firing upon Umesh Bhuiyan and Firoj Ansari. PW7 stated in the Court that he saw the incident which occurred near the Gurgurwa dam which is far away from village Peshka. He seems to have offered an explanation how he could see the incident near Gurgurwa dam by saying that he had sneaked out after the 12 Cr. A (DB) No. 775 of 2018 and analogous cases assault upon him and climbed at rooftop. However, having regard to the distance between the first place of occurrence and Gurgurwa dam which according to this witness is one kilometer and the firearm injury suffered by him in his knee, we hold that he is not an eyewitness to firing upon Umesh Bhuiyan and Firoj Ansari. For a similar reason, Saroj Devi and Baccha Sao also are held not eyewitness to the second incident in which Umesh Bhuiyan and Firoj Ansari suffered firearm injuries. However, having regard to the fact that PW6, PW7 and PW19 are injured witnesses who were present in the village when the incident near Gurgurwa dam took place almost simultaneously, we are inclined to accept a part of their testimonies in the Court to the extent they came to know about firing by Mohan Sao and Birendra Sao at Umesh Bhuiyan and Firoj Ansari through others. Their evidence in the Court to support the charge of murder of Umesh Bhuiyan can be used by the prosecution. As noticed above, the distance from Gurgurwa dam in which Umesh Bhuiyan suffered fatal gunshot injury and Firoj Ansari was grievously injured was about one kilometer from the place of first part of the occurrence. Therefore, having regard to the prosecution evidence that the villagers were chasing Mohan Sao, Birendra Sao, Pancham Sao and Deepak Sao trying to apprehend them, it is also not difficult to hold that the incident near Gurgurwa dam occurred within 10-15 minutes. The prosecution evidence tendered through PW4, PW6, PW7, PW8, PW9 and PW19 is corroborated by the testimony of PW5 who was injured in the second part of the occurrence. Furthermore, PW10 who was Mukhiya of the village was with the injured witnesses at Garhwa hospital and he is a signatory of the First Information Report and he has said that PW7 was with him.
26. In "C. Kunhammad v. Emperor" AIR 1924 Mad. 229 it was observed that the meaning of section 34 is that if two or more persons have individually done a thing jointly the position is the same as if each of them had done it individually. "C. Kunhammad" was approved by the Privy Council in "Barendra Kumar Ghosh v. King Emperor" AIR 1925 PC 1. Lord Sumner captured the appellant's argument in an illustration which reads like this: "If three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the 13 Cr. A (DB) No. 775 of 2018 and analogous cases benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one."
27. Speaking for the Board, Lord Sumner has written that: Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait".
28. In our opinion, the prosecution produced sufficient cogent and reliable materials to prove the charge under section 302/34 of the Indian Penal Code against Mohan Sao and Birendra Sao. Even though PW5 did not say firing by Birendra Sao at Umesh Bhuiyan, the conviction and sentence awarded to Birendra Sao and Mohan Sao under section 302/34 of the Indian Penal Code are affirmed and, accordingly, Criminal Appeal (DB) No. 775 of 2018 is dismissed.
29. In the judgment dated 18th May 2018 rendered in Sessions Trial No. 19 of 2014 the 1st Additional Sessions Judge, Garhwa has held as under:
"18. Apart from the above evidences given by the prosecution witnesses there were other prosecution witnesses as well, who have either seen the occurrence themselves from beginning to end or they have reached the place of occurrence soon after the incident and saw the injured and dead. These witnesses are PW-4 Bajrang Sao, PW-8 Ful Kumari, PW-10 Ram Pratap Sao, PW-14 Puja Devi.
19. All the above injured prosecution witnesses as well as these aforesaid material prosecution witnesses were cross-examined at length by the defence but they have not stated any fact which either contradicts their own statement given in their examination in chief or it contradicts the statement given in the fardbeyan or it contradicts the statement given by any other prosecution witnesses. Thus the statement of these prosecution witnesses appears to be trust worthy. Besides the medical evidence fully support the oral evidences given by the prosecution witnesses. Minor discrepancies have been found in the statements of the prosecution witnesses with regard to manner of assault or while naming the exact assaulter. It is generally found that in such type of assault where several accused persons assault several other persons by various types of weapons and also by fist and slap, then it becomes very difficult to pin point the exact manner of assault or who assaulted whom on which part of the body or which assaulter gave how many blows to any injured. On the basis of these minor discrepancies, entire prosecution evidences cannot be brushed aside in favour of the defence.
20. At some places it has come that accused Pancham Sao and Deepak Sao were holding guns and also made firing from their guns in the air. At the same time it has also come in the evidence that these two had assaulted the members of the informant side by lathi and caused fracture of legs of Bachcha Sao. It does not appear normal and natural that the person holding the pistol will assault with danda also. Thus it is inferred that Pancham Sao and Deepak Sao were holding lathi in their hand and were not possessing gun. During course of trial Pancham Sao died. Hence the trial against him abated. It has also come in the evidence that at the first place of occurrence Nandkeshwar Sao was also holding lathi and had participated in assaulting the informant side and the entire incident occurred under the leadership of the accused Nandkeshwar Sao. There are sufficient evidences on the record that Deepak Sao and Nandkeshwar Sao were also the active assaulter due to which injuries were caused to the informant side. However there is no 14 Cr. A (DB) No. 775 of 2018 and analogous cases evidence on the record that the assault caused by Nandkeshwar Sao resulted into grievous injury or on the vital part of the body of the injured by weapon of assault.
21. From perusal of the record it appears that though the accused persons were also charged for the offence under Arms Act, but from perusal of the record it appears that there is no evidence of the Sergeant Major or any other certificate on the record to show that the arms which were recovered from the possessions of the accused persons were in working condition and the pellet which was caused injury to the victims were fired from these guns. Apart from that no sanction report of the Deputy Commission with regard to arms has been brought on record by the prosecution. Thus on these technical grounds the charge against accused persons for the offence under Arms Act fails.
22. From the entire analysis of the evidences on the record as discussed above in the preceding paragraphs, I have reached to a conclusion that the prosecution has remained successful in establishing the charges separately levelled against the accused persons beyond all reasonable doubt. Thus I find and hold accused Mohan Sao and Birendra Sao guilty for the offence u/s 302/34 of the IPC and convict them thereunder. I also find and hold the accused persons Deepak Sao for the offence u/s 326/34 IPC and Leelawati Devi, Sangita Devi and Nandkeshwar Sao for the offence u/s 324/34 IPC and convict them thereunder. They are taken into judicial custody and remanded to Garhwa Jail."
30. Mr. A. K. Kashyap, the learned senior counsel refers to paragraph no. 22 of the judgment under challenge to submit that the trial Judge without recording conviction of Birendra Sao inflicted punishment of RI for seven years under section 307 of the Indian Penal Code.
31. This seems to be another case in which trial was conducted with utmost negligence and the Additional District Judge-I at Garhwa also demonstrated his carelessness. As we have recorded that presence of Mohan Sao and Birendra Sao at the place of occurrence and their presence and participation in the occurrence have been proved. Their conviction and sentence awarded under section 302/34 of the Indian penal Code have been affirmed and the evidence in respect thereof also can be taken note of for convicting Birendra Sao under section 307 of the Indian Penal Code. In view of the aforesaid, we hold that Birendra Sao is convicted under section 307 of the Indian Penal Code and sentence him to RI for seven years. However, in absence of a State appeal or an appeal in view of proviso to section 372 of the Code of Criminal Procedure, we are not inclined to examine the charge of attempt to murder against Mohan So.
32. Nand Kishor Sao, Leelawati Devi and Sangeeta Kumari are convicted under section 324/34 of the Indian Penal Code and except Nand Kishor Sao other two have been awarded punishment of fine of Rs. 5,000/- each with a default stipulation to undergo SI of three months. The trial Judge 15 Cr. A (DB) No. 775 of 2018 and analogous cases has however awarded punishment of RI of three years to Nand Kishor Sao under section 326 of the Indian Penal Code. The role assigned to Nand Kishor Sao, Leelawati Devi and Sangeeta Kumari is similar and identical and, therefore, we accept the submission of the learned senior counsel for Nand Kishor Sao that he is entitled for parity in punishment and, accordingly, a sentence of fine of Rs. 5,000/- is inflicted upon Nand Kishor Sao.
33. Criminal Appeal (DB) No. 976 of 2023 is allowed to the aforesaid extent.
34. Criminal Appeal (DB) No. 977 of 2023 is dismissed.
35. Let the lower Court records be transmitted to the Court concerned, forthwith.
36. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.
(Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 16th September 2023 Tanuj/ N.A.F.R.