Manipur High Court
Thangmeisohoram vs The State Of Manipur Represented By The ... on 17 June, 2021
Equivalent citations: AIRONLINE 2021 MPR 58
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
KABORAMB
Page 1 of 46
AM LARSON
Digitally signed by IN THE HIGH COURT OF MANIPUR
KABORAMBAM LARSON AT IMPHAL
Date: 2021.06.21
12:44:34 +05'30'
Criminal Jail Appeal No.4 of 2013
ThangmeisoHoram, aged about 32 years, S/o H.R. Luingam
of Halang Village, Ukhrul District, Manipur.
....... Petitioner/s
- Versus -
The State of Manipur represented by the Principal Secretary
(Home), Government of Manipur.
.... Respondent/s
With Criminal Jail Appeal No.5 of 2013 H.R. Mashungmi, aged about 30 years, S/o VareyoHoram of Halang Village, Ukhrul District, Manipur.
....... Petitioner/s
- Versus -
The State of Manipur represented by the Principal Secretary (Home), Government of Manipur.
.... Respondent/s Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 2 of 46 BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Appellant/s : Mr. K. Modhusudon, Advocate For the Respondent/s : Mr. H. Samarjit, Ld. PP Date of Hearing : 08.04.2021 Judgment & Order : 17.06.2021.
JUDGMENT &ORDER (CAV) [1] These appeals arise out of the judgment made in S.T. Case No.10/2006/11/2006 by the learned Additional Sessions Judge, Manipur East, convicting the appellants-accused for an offence under Section 304 Part II IPC, and sentencing them to undergo five years rigorous imprisonment and to pay a fine of Rs.10,000/- each, in default, to undergo rigorous imprisonment for six months. [2] Brief facts of the prosecution case are as follows:-
[2.1] On 31.07.2004 at around 2.30 p.m., the deceased Penmi, younger brother of the complainant, who was mentally unsound, was taken to VachonTharam of Halang village by the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 3 of 46 appellants- accused and physically assaulted seriously at the said spot and as a result, Penmi succumbed to the injuries. [2.2] One SomtharKeidam set the law in motion. On the basis of complaint lodged by the said SomtharKeidam, an FIR bearing No.8(8)2004 was registered by the Ukhrul Police Station under Section 302/34 IPC against the appellants-accused. [2.3] P.W.4-Sub Inspector of Police, on receipt of the complaint from SomtharKeidam and upon registration of the FIR on 1.8.2004 at 12.30 p.m., went to Halang village and found the dead body of Penmi lying at the house of S. Lamyang, elder brother of Penmi. He had conducted inquest on the dead body of Penmi and took photographs. Thereafter, P.W.4 seized one G.I. Pipe of 1 Inch diameter, 4 feet in length on production by Ram Somthar, elder brother of the deceased Penmi, under seizure memo Ex.P9. Thereafter, P.W.4 brought the dead body to Ukhrul Police Station for conducting post-
mortem as there was no mortuary at the District Hospital, Ukhrul. Dr. Chesti conducted post-mortem on the body of the deceased Penmi and had issued Ex.P5 post-mortem report and thereafter, P.W.4 handed over the body to the family members of the deceased. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 4 of 46 [2.4] On 2.8.2004, P.W.4 arrested the appellants-accused from their respective houses and remanded them to judicial custody. After completing the investigation and after examining the witnesses, P.W.4 filed Ex.P6-charge sheet against the appellants-accused under Section 302/34 IPC before the jurisdictional Magistrate Court. [3] After committal of the case to the Sessions Court, the case was taken on file as S.T. Case No.10/2006/11/2006 and thereafter, transferred to the file of the Additional Sessions Judge, Manipur East for trial.
[4] To substantiate the charges against the appellants- accused in the trial Court, P.W.1 to P.W.4 were examined and Exs. P1 to P12 and M.O.1 were marked. The appellants-accused were questioned about the incriminating circumstance and evidence under Section 313 Cr.P.C. on 18.3.2013. The appellants-accused denied all of them and pleaded that a false case was foisted against them. [5] Upon consideration of the oral documentary evidence, the trial Court came to the conclusion that there is no eye witness to the alleged incident and therefore the case is based on circumstantial evidence. The trial Court, further held that the deceased Penmi was Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 5 of 46 chased by the appellants-accused and assaulted the deceased. However, the trial Court held that the assault caused to the deceased was not with an intention to kill him, but due to sudden provocation of his assault to some women of their village and therefore, Section 302 read with 34 IPC would not attract. Accordingly, the trial Court convicted the appellants-accused under Section 304 Part II IPC vide judgment dated 15.7.2013 and the case was adjourned to 25.7.2013 for sentencing. On 25.7.2013, the trial Court sentenced the appellants- accused to undergo 5 years rigorous imprisonment under Section 304 Part II IPC and to pay fine of Rs.10,000/- each, in default, to undergo 6 months rigorous imprisonment. The trial Court has also ordered that 50% of the fine amount shall be given to the legal heirs of the deceased. Challenging the conviction and sentence imposed on the appellants-accused, the appellants-accused havepreferred these jail appeals.
[6] The prosecution version hinges on circumstantial evidence. In every case, based upon circumstantial evidence and in this case as well, the question that needs to be determined is whether all the links in the chain of circumstances is so complete pointing to the guilt of the accused to rule out possibility of innocence of accused. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 6 of 46 [7] P.W.1-K.H. Tuisem, who is a relative of the deceased, has deposed that on the day in the year 2004 at around 2.00 p.m., while he was doing domestic work, he saw the deceased Penmi come running. He asked Penmi what happened, but Penmi did not reply. After a while, the appellants-accused also came running. He asked the appellants-accused, why they are chasing Penmi. The appellants- accused replied that the said Penmi had beaten up some women, so they are chasing him. Thereafter, he had no knowledge. At around 3.00 p.m., he heard that Penmi was brought back to his house as he was beaten by the appellants-accused. When P.W.1 reached the house of Penmi, he was lying on the bed and after some time Penmi expired. [8] In his evidence, P.W.2-Chinaongam Chamroy deposed that on the day in the year 2004, when he was returning from his farm, he saw Penmi running towards him and after some minutes the accused were seen running towards Penmi. However, P.W.2 was declared as hostile witness as requested by the Public Prosecutor and in his cross-examination by the Public Prosecutor, P.W.2 stated that he never gave his statement to the investigating officer of the case. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 7 of 46 [9] P.W.3 is David Somdhar, who is the eldest brother of the deceased Penmi. In his evidence, P.W.3 stated that he was residing at Ukhrul since the year 1982. In the morning of 1.8.2004, one Ringphami of Halang village came to his house and informed him that his brother Penmi was killed by the accused. Thereafter, he along with his father- in-law came to Halang village. When he reached Halang village, he found some police personnel led by the Sub Inspector and he also saw one Doctor. The Sub Inspector of Police conducted inquest on the body of the deceased Penmi in the presence of the Doctor and at that time he saw many injury marks on the body of the deceased. P.W.3 stated that he signed in the inquest report.
[10] P.W.4 is the Sub Inspector of Police, who investigated the case and deposed that on 1.8.2004 at 12.30 p.m., he got the complaint from SomtharKeidam of Halang village stating that on 31.7.2004 at around 2.30 p.m., one PenmiSomthar of Halang village, who is a mentally unsound person, was taken to VachonTharam of Halang village by the accused and physically assaulted him seriously at the said place. The matter of assault or manhandling was informed to the family members of Penmi on the same day by the accused themselves. When the family members of Penmi rushed to the spot, Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 8 of 46 PenmiSomthar was found mortally wounded and he was brought home. However, he died at 5.00 p.m. on the same day. In his evidence, P.W.4 further stated that a case being FIR No.8(8)2004 Ukl. P.S. U/s 302/34 IPC was registered and he was assigned the investigation. He went to Halang village and also visited the spot. The dead body of S. Penmi was lying at the house of S. Lamyang, elder brother of deceased P.W.4 conducted inquest and had taken photographs and he had also seized on G.I. Pipe on production by Ram Somthar, elder brother of the deceased, under Ex.P9-seizure memo. Then the dead body was brought to Ukhrul Police Station for post-mortem as there was no mortuary at the District Hospital, Ukhrul. After conducting post-mortem, the body was handed over to the family members of the deceased. On the next day, P.W.4 arrested the appellants-accused and after completing the investigation, P.W.4 filed the charge sheet under Section 302 read with Section 34 IPC against the appellants-accused. [11] Relying upon the evidence of P.W.1 to P.W.4, the trial Court came to the conclusion that the chain of evidence is so complete and there is no other reasonable ground for the conclusion consistent with the innocence of the appellants-accused and it clearly shows that Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 9 of 46 in all human probability the act had been done only by the appellants- accused.
[12] Assailing the findings arrived at by the trial Court and also conviction and sentence imposed on the appellants-accused, the learned counsel for the appellants-accused has made the following submissions:
* That the prosecution failed to produce any of the eye witnesses in the crime.
* That there is no evidence to show that the appellants-accused assaulted the deceased Penmi.
* That nobody deposed that the deceased Penmi was lying at the place of occurrence in a serious condition.
* That nobody stated that the deceased was brought home from the place of occurrence in a serious condition.
* That the inquest of the deceased was done at the residence of S. Ramyang at Halang village on 1.8.2004 at 4.50 p.m. On the other hand, the post-mortem over the dead body was conducted at Ukhrul police station on 1.8.2004 at 4.50 p.m. The distance Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 10 of 46 between Halang village and Ukhrul police station is about 30 kms. and it took about one hour journey.
* That M.O.1-G.I. pipe was seized on production by the elder brother of the deceased and the same was submitted at the time of filing of the charge sheet.
* Neither the Doctor who had conducted the post-mortem nor the informant of the case was examined as witnesses. * That no witnesses depose that Exs.P7 and P10-photographs belong to the deceased and that the photographer has not been cited and examined as prosecution witness.
* That there are lot of contradictions in the evidences of the prosecution witnesses.
* That the trial Court ignoring the innocence of the appellants- accused, convicted them despite the fact that sufficient circumstances demanding the benefit of doubt in favour of the appellants-accused in the trial and as such, the trial Court has failed to apply its judicial mind while convicting the appellants- accused.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 11 of 46 [13] Making the above submissions and taking us to the depositions of the prosecution witnesses and relying upon the decisions of the Hon'ble Supreme Court in the cases of Rajesh Patel v. State of Jharkhand, (2013) 3 SCC 791; Madhu v. State of Kerala, (2012) 2 SCC 399; Padam Singh v. State of U.P., (2000) 1 SCC 621 and V. Vijay Kumar v. State of Kerala, (2000) 1 SCC 628, it is prayed to allow these jail appeals and set aside the impugned judgment of the trial Court.
[14] These appeals are vehemently opposed by the learned Additional Public Prosecutor by contending that after examining the testimonies of the witnesses, the trial Court came to the conclusion that the appellants-accused had beaten the deceased to death. Insofar as the submission of the learned counsel for the appellants-accused regarding non-production of other material witnesses and discrepancies of statements about the timing of conducting inquest and post-mortem over the dead body of the deceased, the learned Additional Public Prosecutor contended that evidences are to be assessed to the quality of evidence and not to the quantity and that those discrepancies are not material contradictions which may vitiate the entire prosecution case. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 12 of 46 [15] The learned Additional Public Prosecutor further submitted that P.W.1 has clearly deposed before the trial Court that he saw the deceased come running and thereafter, the accused also came running and when he asked them why they were chasing the deceased, the appellants-accused replied that the deceased had beaten some women and so, they chased him and therefore, it is for the appellants-accused who had beaten the deceased and caused death. Therefore, they are liable to be punished under Section 302 read with 34 of IPC. However, the trial Court, by citing certain decisions of the Hon'ble Supreme Court, convicted the appellants-accused under Section 304 Part II IPC and sentenced them to undergo 5 years rigorous imprisonment and to pay fine of Rs.10,000/- each. The learned Additional Public Prosecutor submitted that though the State has not preferred an appeal against the said lesser conviction, taking note of the evidences produced by the prosecution, the High Court may convict the appellants under Section 302 read with 34 IPC and impose major sentence accordingly.
[16] This Court considered the submissions made by the learned counsel for the appellants-accused and the learned Additional Public Prosecutor and also perused the materials available on record. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 13 of 46 [17] As per the story of the prosecution, on 31.7.2004 at around 2.30 p.m., the appellants-accused have taken the deceased Penmi to a place called VachonTharam of Halang village and physically assaulted him at the said spot and as a result, Penmi succumbed to injuries.
[18] Admittedly, there is no eye witness to the plea of the prosecution that the appellants-accused have taken the deceased Penmi to VachonTharam. In his complaint, the complainant SomtharKeidam has stated as under:
"I beg to call attention and state the following for your kind and necessary action thereof. That Mr. Penmi (30) is a mentally unsound person. On 31st July 2004 at around 2.30 he was taken to (Vachontharam) by Mr. ThangmeisoHoram and H.R. Masungmi, both from Halang village, and physically assaulted him seriously at the said spot. Firstly, the matter of man handling by the above two persons to my brother late Mr. PenmiSomthar was informed to the family by the above two culprits. When members of my family rushed to the spot Mr. Late Penmi was found mentally wounded. He was brought to his house immediately. However, succumbed to his mortal would at around 5 p.m. on the same day. Therefore, the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 14 of 46 bereaved family would like to appeal to authority to immediately take necessary steps against the culprits."
[19] As per the complainant, the appellants-accused physically assaulted Penmi seriously at VachonTharam. A reading of the complaint, proceeds as though SomtharKeidam had directly witnessed the occurrence. But, the complainant SomtharKeidam has not turned up and deposed before the Court. If really the appellants- accused have taken the deceased Penmi to VachonTharam for assaulting, the complainant SomtharKeidam, who is none other than the elder brother of the deceased Penmi, ought to have come to the Court and deposed about the occurrence. On account of the failure of the complainant to come and depose before the trial Court, it is highly doubtful whether SomtharKeidam had witnessed the occurrence. [20] The prosecution examined one K.H. Tuisem as P.W.1, who has deposed that on day in the year 2004 at around 2 p.m. while he was doing domestic works, he saw Penmi come running and when he asked him why did he was running, Penmi did not reply. Thereafter, the appellants-accused also came running after Penmi and when P.W.1 asked them why they are chasing Penmi, they replied that Penmi had beaten some women and so they chased him. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 15 of 46 The said deposition of P.W.1 is entirely different from what the complainant has stated in his complaint. P.W.1 further went on to state that the appellants-accused followed Penmi and then he did not know what had happened, however, at about 3.00 p.m., he heard that Penmi was brought back to his house due to beaten by the appellants-accused and he had also went to the house of Penmi, where he saw lying of Penmi in a bed inside the house by covering his body with a cloth. At the time of his visit, some of his family members gave a glass of water and after some minutes, Penmi was expired. The evidence of P.W.1 clearly shows that he has not directly witnessed the alleged assault on the deceased Penmi said to have been made by the appellants-accused. He only heard that Penmi was brought back to his house as he was beaten by the appellants- accused. In his cross-examination, P.W.1 admitted that he was a relative to the deceased Penmi.
[21] P.W.2 has turned hostile by stating that in the year 2004 one day, when he was returning from their family farm located at Khamu jungle, he met Penmi running towards him and he was running away and within after some minutes, the appellants-accused also running towards him and they also running towards Penmi and Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 16 of 46 after that he has no knowledge. P.W.2 also not specifically stated that the appellants-accused assaulted the deceased Penmi. During the cross-examination by the learned Public Prosecutor, P.W.2 stated that he did not give any statement under Section 161 Cr.P.C. to the investigating officer. Since P.W.2 turned hostile, the only evidence available to prove the prosecution case is P.W.1 and no other witness was examined to prove the occurrence.
[22] The reading of evidence of P.W.1, who is a relative of the deceased, it is seen that the deceased had beaten some women and therefore, the appellants-accused chased him. According to the complainant, the deceased Penmi was mentally unsound person. P.W.4 also stated that the deceased Penmi was mentally unsound person. When a mentally unsound person was running, how p.W.1 was able to ask him why he was running. Therefore, it is highly doubtful that the appellants-accused had chased the deceased Penmi on the fateful day and P.W.1 witnessed the same. It is also possible for an unsound person like the deceased for doing some naughty things, for which, there is every likelihood of the family members beating the deceased. In his 161 Cr.P.C. statement, the P.W.1 stated that the appellants-accused running chasing after late Penmi and they Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 17 of 46 were also empty handed and no weapons are found on their hands. Thus, the circumstances stated by the prosecution do not link the appellants-accused who have said to have assaulted the deceased and caused the death.
[23] In paragraph 18 of the impugned judgment, the trial Court held as under:
"On going through minutely the testimony of all the P.W.s particularly, P.W.1, it is evident that the deceased S. Penmi was chased by the accused persons and when he enquired about their chasing the accused persons told him that the deceased Penmi beaten some women and so they chased him. Thus, it is very clear that the said incident was happened while the deceased committed some unwanted acts, suddenly. Therefore, I am of the considered view that the assault/beating caused to the said S. Penmi by the accused persons was not within the intention to kill him but due to sudden provocation of his assault to some women of their village. Nevertheless, the accused persons had beaten severely with furthereanceof their common intention with a G.I. Pipe and thus, I come to the conclusion that the accused persons committed the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 18 of 46 act of beating/assaulting to S. Penmi was done with the knowledge that it is likely to cause death."
[24] The aforesaid conclusion of the trial Court that the assault/beating caused to Penmi by the accused by chasing has no basis, as P.W.1 has not directly seen the assault by the appellants- accused on the deceased Penmi. As stated supra, in his evidence, P.W.1 has clearly stated that the appellants-accused followed the deceased Penmi and he does not know what had happened thereafter. When such being the evidence of P.W.1, how the trial Court could arrive at the conclusion that the assault/beating caused to the said S. Penmi by the accused persons. In fact, in his statement, P.W.4 the investigating officer, stated that the deceased was an unsound person and unwanted by the villagers of Halang village. Thus, there is every possibility of thinking that the assault of the deceased Penmi may be caused by any villager or self-accident or beaten by the family members of the deceased with the presumption that M.O.1-G.I. Pipe was seized on production by Ram Somthar, who is the elder brother of the deceased Penmi. In fact, the investigating officer has failed to record the statement of neighbouring people of the deceased. In view of the above, there is suspicion that the real fact of Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 19 of 46 the case has been concealed by the prosecution. Therefore, this Court is of the view that the trial Court erred in arriving at the conclusion that the prosecution has established beyond reasonable doubt that the accused assaulted/beated the deceased by using M.O.1-G.I. Pipe and as a result, Penmi succumbed to injuries. [25] In the instant case, P.W.3, who is the eldest brother of the deceased, stood as witness to the inquest report. In his evidence, P.W.3 deposed that on 1.8.2004 in the morning one K.R. Rengphami of Halang village came to his house and informed him that his younger brother S. Penmi was killed by the accused who is now in the dock. Immediately, he along with his father-in-law proceeded to Halang village and when he reached to his brother house, he found some police personnel led by P.W.4 and also found one Doctor from the District Hospital. P.W.4 conducted inquest on the dead body in his presence and other witnesses, including the Doctor and he witnessed Ex.P1-inquest report. However, in his evidence, P.W.4 stated that he and his police team visited the spot and the dead body of late PenmiSomthar has been already brought to the house of S. Lamyang, elder brother of the deceased. It is also the evidence of P.W.3 that P.W.4 and the Doctor left the house suddenly when he reached his Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 20 of 46 native village i.e. Halang village. In his evidence, P.W.4 stated that he reached Halang village at about 2.50 p.m. and thereafter, he returned Ukhrul police station at 6.30 p.m. P.W.4 also stated that he did not examine any witness and recorded statement at Halang village on 1.8.2004. According to the prosecution, in the presence of two witnesses namely R. Aleng and S. David, P.W.4 conducted inquest over the dead body of late S. Penmi.
[26] It appears that in his evidence, P.W.3 stated that on 1.8.2004, he reached Halang village at around 8.30 a.m. and the S.I. of Police and the Doctor left the house of his brother after a few minutes when he reached the house. Admittedly, the complaint was lodged on 1.8.2004 at 12.30 p.m. and P.W.4 stated that he reachedHalang village at about 2.50 p.m. Thus, there is a doubt over the evidence of P.W.3. This Court is also of the view that there is a doubt that the statements of all witnesses under Section 161 Cr.P.C. was done by the investigating officer at table work so as to enable to file the charge sheet without the consent of the said witnesses. [27] By relying upon the decision of the Hon'ble Supreme Court in the case of Hema v. State, through Inspector of Police, Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 21 of 46 Madras, (2013) 10 SCC 192, the learned Additional Public Prosecutor submitted that in case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. [28] In Hema(supra), the Hon'ble Supreme Court held:
"18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
[29] When we examine the instant case in the light of the decision of the Hon'ble Supreme Court in the case of Hema(supra), this Court finds that this is a case of not only a defective investigation, but also failure on the part of the investigating officer to visit the occurrence place and prepare a rough sketch. In his evidence, P.W.4 stated that he and his police party along with the complainant left the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 22 of 46 spot i.e., VachonTharam for inspection. Admittedly, P.W.4 has not produced the rough sketch of the place of occurrence though he stated that he had prepared the rough sketch. As could be seen from the evidence of P.W.4 that on receipt of the complaint, he rushed to the house where the dead body kept and after conducting the inquest, he brought the dead body to Ukhrul police station and after conducting the post-mortem, handed over the body to the family members of the deceased.
[30] The learned counsel for the appellants-accused submitted that there are contradictory statements of P.W.3 and P.W.4. P.W.3 stated that the dead body was never brought to any place, whereas P.W.4 stated that the dead body of the deceased was taken to Ukhrul police station by P.W.4 and his party. Likewise, there are contradictory statements of P.W.1 and P.W.4. P.W.1 stated that the appellants-accused chased him, whereas P.W.4 stated that Penmi was taken by the appellants-accused. Admittedly, there are contradictions in the evidences of prosecution witnesses. [31] The learned Additional Public Prosecutor submitted that the prosecution was able to prove by sufficient evidence beyond Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 23 of 46 reasonable doubt that on the fateful day the appellants-accused chased the deceased Penmi and physically assaulted and because of the physical assault, Penmi succumbed to injuries. There is no force in the submissions of the learned Additional Public Prosecutor, as nothing on record to link the appellants-accused to the alleged occurrence.
[32] The trial Court, very much relied upon the oral testimony of P.W.1 in convicting the appellants-accused as his testimony was not shaken in the cross-examination by the appellants- accused. This Court does not find any trustworthiness in the statement of P.W.1, as P.W.1 has not directly seen that the appellants-accused physically assaulting the deceased. As stated supra, in his evidence, P.W.1 clearly stated that he heard that Penmiwas brought back to his house as he was beaten by the accused persons. In the earlier part of evidence also P.W.1 clearly stated that the accused persons followed Penmi and then P.W.1 deposed that he does not know what had happened thereafter. When such being the evidence of P.W.1, the trial Court ought not to have believed the evidence of P.W.1 for convicting the appellants-accused Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 24 of 46 on his sole testimony. Further, the only oral testimony of P.W.1 is also not enough to link the appellants-accused to the alleged occurrence. [33] According to the prosecution, the motive behind the appellants-accused in assaulting the deceased is the deceased Penmihad beaten some women and so, the appellants-accused chased him and physically assaulted. The said motive has not been clearly established by the prosecution even though in his cross- examination, P.W.4 denied the suggestion that the deceased S. Penmi died due to beaten by his family members for causing the disturbance to some local women and not as a result of beating by the accused persons. In his cross-examination, P.W.4 stated that during his inquiry about the history of the deceased, his family members as well as the villagers told him that the deceased was somewhat a mentally abnormal person and it is true that he was told that the deceased was an unwanted person by the villagers due to his mental disorder.
[34] By relying upon the said portion of the deposition of P.W.4, the learned counsel for the appellants-accused contended that the family members of the deceased have killed the deceased as he Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 25 of 46 was an unwanted person due to his mental disorder. Though the said contention of the learned counsel for the appellants-accused has no material support, the production of M.O.1-G.I. pipe by the elder brother of the deceased gains credence. If really, the appellants- accused used M.O.1-G.I. Pipe for assaulting the deceased, how M.O.1 can be produced by the elder brother of the deceased to P.W.4. Admittedly, P.W.4 after arrest of the appellants-accused has not obtained any confessional statements and based on the confessional statements, P.W.4 seized material objects. In the absence of any leading recovery from the appellants-accused, how it could be said that M.O.1 was used by the appellants-accused during the commission of the offence. Further, nothing on record to show that M.O.1 was sent to forensic sciences department for chemical analysis.
[35] In the instant case, the Doctor who had conducted the post-mortem on the dead body of Penmi has not been examined by the prosecution. In fact, the post-mortem report was marked through P.W.4 as Ex.P5 and therefore, the trial Court erred in relying upon the post-mortem report.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 26 of 46 [36] After extracting the internal and external injuries on the body of the deceased and also opinion of the Doctor; the trial Court, in paragraph 10, held as under:
"EXTERNAL INJURIES:
1) MULTIPLE ABRASIONS ON RIGHT SIDE
FOREHEAD
2) LACERATIONS -
(i) 4 cm. X 1 cm. bone deep on left sideforehead
just above left eye brow.
(ii) 1 cm. X 1 cm. on left side face over (L) check
prominence.
3) Multiple (diffuse) bruise marks on the back - middle
1/3rd back - both on right & left sides - over scapular region to the middle 1/3rdback.
4) Multiple abrasions over dorsal aspect of forearm & over dorsum of (L) hand.
5) Depression deformity on the back of the left side.
6) Multiple bruises on the back of both thighs &calfs (lower legs).
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 27 of 46 INTERNAL APPEARANCE:
A. HEAD, NECK AND SPINAL COLUMN:
a) Scalp - Laceration - 4 cm x 1 cm bone deep over left eyebrow.
b) Skull - No fractures.
c) Meninges and Vessels - No injuries.
d) Brain - No injuries.
e) Vertebrae and Spinal Cord - No injuries.
f) Orbital, Aural and Nasal Cavities - No injuries.
g) Mouth, Tongue, Pharynx, Larynx and other neck structures
- No injuries.
B. THORAX:
(1)Fracture of (R) Scapula (2)Fractures of shafts of the 7th, 8th, 9th ribs on posterior aspect near Casto - Vertebral Joints Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 28 of 46
- Left side.
- Haemopneumothorax left chest.
- Laceration of posterior aspect of left lung middle & lower lobes.
- Puncture of left pulmonary vessels.
C. ABDOMEN - No injuries.
D. MUSCLES, BONES AND JOINTS:
(A) Fractures of Shafts of 7th, 8th, 9th ribs on left side chest posterior aspect mentioned.
(B) Fracture of (R) Scapula - Over the spine & the body. (C) Fractures of Shafts of 3rd, 4th& 5thmeta carpal bones of right hand.
OPINON OF THE MEDICAL OFFICER AS TO THE CAUSE OF DEATH: Death is due to massive hemorrhages of following injuries to left lung & pulmonary vessels causing acute Cardio-respiratory. The injuries are due to hitting on the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 29 of 46 back by heavy blunt weapon causing fractures of ribs & visceral injuries & homicidal in nature.
As per the above Post Mortem report, it is crystal clear that the deceased S.Penmi had caused many External Injuries, Internal Injuries to the Head, Thorax, Muscles, bones and joints and the opinion of the Doctor who conducted the said Post Mortem is that the death is due to massive hemorrhages of injuries to left lung & pulmonary vessels causing acute Cardio-respiratory as the injuries are due to hitting on the back by heavy blunt weapon causing fractures of ribs & visceral injuries & homicidal in nature. Thus, it is evident that the death of S.Penmi is homicidal in nature. Nevertheless, now the question is who had caused that injuries to the deceased Penmi."
[37] At this juncture, the learned Additional Public Prosecutor submitted that on a thorough reading of the oral testimonies of theprosecution witnesses, the undisputed factual position is that in Ex.P5 post-mortem report, the Doctor has clearly opined that the death of S.Pemni was due to massive hemorrhages of injuries to left lung and Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 30 of 46 pulmonary vessels causing acute cardio-respiratory. As stated supra, the only seizure made by the prosecution in this case is M.0.1-G.I. pipe and that too the same was produced by the elder brother of the deceased to P.W.4. Therefore, as stated supra, there is every suspicion that the appellants-accused have used the M.O.1 G.I. pipe in the alleged occurrence.
[38] By relying upon the decision in the case of Dhobi Yadav v. State of Bihar, 1990(1) Crimes 28 (Pat), the learned counsel for the appellants-accused submitted that the examination of the Doctor who had conducted post-mortem is essential.
[39] The learned counsel for the appellants-accused also relied upon the decision of the Hon'ble Supreme Court in the case of Rajesh Patel v. State of Jharkhand, (2013) 3 SCC 791, wherein the Hon'ble Supreme Court held:
"12. The High Court has erroneously accepted the findings of the trial Court that the appellant has not been prejudiced to non- examination of the doctor for the reason that she was working as a nurse in the private hospital of PW4 and being a nurse she knew that the information on commission of rape is grave in nature and Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 31 of 46 she would not have hesitated in giving the information to the police if the occurrence was true. Further, the finding of the Courts below that non-examination of the I.O. by the prosecution who has conducted the investigation in this case has not caused prejudice to the case of the appellant, since the prosecution witnesses were unfavourable to the prosecution who were either examined or declared hostile by the prosecution, which reasoning is wholly untenable in law. Therefore, the finding and reasons recorded by both the trial Court as well as the High Court regarding non- examination of the above said two witnesses in the case has not prejudiced the case of the appellant is totally an erroneous approach of the Courts below. For this reason also, we have to hold that the findings and reasons recorded in the impugned judgment that the trial Court was justified in holding that the prosecution has proved the charge against the appellant and that he has committed the offence on the prosecutrix, is totally erroneous and the same is wholly unsustainable in law."
[40] There is no explanation forthcoming from the prosecution regarding the non-examination of the post-mortem Doctor and in fact, the trial Court, very strangely, has taken the non-examination of the Doctor so Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 32 of 46 lightly, which is not appreciable. That apart, the post-mortem report was marked as Ex.P5 through P.W.4, who is not competent to depose about the post-mortem report. According to the learned counsel for the appellants-accused, the non-examination of the Doctor, who conducted the post-mortem on the dead body of the deceased Penmi is fatal to the prosecution case.
[41] As regards the non-examination of the Doctor, the learned Additional Public Prosecutor submitted that when the death of the deceased is not disputed or questioned, non-examination of the Doctor will not in any way vitiate the case of the prosecution. Thus, according to the learned Additional Public Prosecutor, the non-examination of the Doctor is not fatal to the case of the prosecution.
[42] As stated supra, Ex.P5 post-mortem report was marked through the investigating officer, P.W.4. Admittedly, nothing on record to show that P.W.4 examined the Doctor and recorded his 161 Cr.P.C. statement. When the appellants-accused disputed their involvement in the crime and contended that they have not attacked the deceased, the prosecution ought to have examined the Doctor who conducted the post- mortem on the dead body of the deceased.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 33 of 46 [43] In a murder case, the post-mortem report play a vital role. The Doctor who conducted post-mortem over the dead body if not examined definitely it would cause prejudice to the defence, as the defence got no opportunity to cross-examine the Doctor on account of nature of injuries and whether they were sufficient to cause death in ordinary course. The contents of post-mortem report could not be proved through the investigating officer. Further, if the Doctor concerned is not traceable, then some other Doctor from the same hospital, who knows the handwriting and signature of the Doctor who had conducted the post-mortem should be called for evidence as it is admissible under Section 47 of the Indian Evidence Act, 1872.
[44] The non-examination of the Doctor and the nonproduction of the Doctor's report would not be a fatal to the prosecution case, only if statements of the complainant and other prosecution witnesses inspire the confidence. In the present case, the complainant has not been examined and the only evidence available is P.W.1 and on a thorough reading of the evidence of P.W.1, the same does not inspire the confidence of the Court. Therefore, in the facts and circumstances of the case, the non-examination of the post-mortem Doctor is fatal to the prosecution case. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 34 of 46 [45] In the present case, there is a delay in lodging the complaint. The delay in setting the law in motion is normally viewed with suspicion as there are possibilities of introduction of coloured version and improvements. Upon consideration of facts and evidence of the present case, this Court finds that the occurrence is stated to have been occurred on 31.7.2004 at around 2.30 p.m. But the complaint was lodged on the next day on 1.8.2014 at 12.30 p.m. As stated supra, the complainant was not examined. In his evidence, P.W.1 stated that at 3.00 p.m. on the said date, he heard that Penmi was brought back to his house due to beaten and he went to the house of Penmi. Thus, it is clear that when P.W.1 rushed to the house of Penmi, Penmi was alive and he died only at 5.00 p.m. However, P.W.1 and others, including his elder brothers have not taken efforts to send the injured to the hospital for treatment. They have also not taken efforts in informing the police about the death of Penmi immediately on 31.7.2004 at 5.00 p.m. Though the delay in lodging the complaint is not fatal, the silence adopted by P.W.1, the complainant and the other family members of the deceased in not taking the injured Penmi immediately to the hospital and in not informing the policeabout the Incident gives a doubt about the death of the deceased Penmi. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 35 of 46 [46] In the present case, except the evidence of P.W.1, there is no independent evidence to lend assurance of the correctness of the evidence of P.W.1 and to corroborate his version. P.W.2 turned hostile and P.W.3 stated that he had signed the inquest report. However, there is contradiction in the evidence of P.W.3 and P.W.4 qua the preparation of inquest report.
[47] It appears that the prosecution has failed to produce material witnesses to prove its case. Further, the prosecution has failed to cure the discrepancies in the statements qua timing of conducting inquest and post- mortem over the dead body of the deceased.
[48] It is true that every small discrepancy or minor contradiction which may erupt in the statements of a witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be treated as fatal to the case of the prosecution. The Court must examine the statement in its entirety, correct perspective and in the light of attendant circumstances brought on record by the prosecution. [49] The learned Additional Public Prosecutor, by referring to the decision of the Hon'ble Supreme Court in the cases of Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174 and SanatanNaskar and Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 36 of 46 another v. State of West Bengal, (2010) 8 SCC 249 submitted that in the present case, though there is no eye witness, but the attendant circumstances have fully been established by theprosecution that the appellants-accused committed the crime.
[50] In Munna Kumar Upadhyay (supra), the Hon'ble Supreme Court held:
"29. To this entire occurrence, there is no eyewitness but the attendant circumstances have fully been established by the prosecution. The forensic expert as well as the neighbours and the investigating officers had seen the bloodstained walls, the floor, having been washed with phenyl and acid, which was sticky and various incriminating items seized in the presence of the witnesses after (sic recording) confessions of the accused."
[51] In SanatanNaskar(supra), the Hon'ble Supreme Court held:
"27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 37 of 46 entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard."
[52] It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and ail the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
[53] In the case on hand, on a thorough examination of the evidence of the prosecution witnesses, it is clear that the prosecution has failed to prove its case in correct perspective and there is totally missing of chain of evidence which would conclusively establish the guilt on the part of the appellants-accused. However, the trial Court erred in arriving at the Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 38 of 46 conclusion that the chain of evidence is so complete and there is no other reasonable ground for the conclusion consistent with the innocence of the accused and it clearly shows that in all human probability the act had been done only by the appellants-accused. This Court findsthat such a finding arrived at by the trial Court has no basis.
[54] It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be Innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with ultimate crime and where the material links constituting the chain of circumstantial evidence are found missing, then the benefit of the same goes in favour of the accused. [55] Every criminal trial based on direct and circumstantial evidence. Whereas, the former directly establishes the commission of offence while the later does so by placing unbroken chain of circumstances which can lead to irresistible inference of guilt. In the facts of the present case, as stated supra, there is no direct evidence to prove the commission of the crime of murder by the appellants-accused, the appellants herein, and the case primarily rests upon the circumstantial evidence only. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 39 of 46 [56] In a case based on circumstantial evidence one of the important circumstance is that deceased was last seen alive in the company of accused. Absolutely there is no evidence to show that deceased Penmi left with the company of the appellants-accused. As stated supra, the trial Court mainly relied on the evidence of P.W .1 who stated that the appellants-accused chased the deceased Penmi. However, his evidence was not supported by any other witness. In fact, the prosecution has failed to examine any other independent witness to prove the circumstance that the appellants-accused chased the deceased. Mere chasing does not amount to killing the deceased. We thoroughly scrutinized the evidence adduced by P.W.1 and the evidence of P.W.1 is not enough to prove the guilt of the appellants-accused. In the present case, the main flaw is that the complainant was not examined on the side of the prosecution.
[57] When a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 40 of 46 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused butshould be inconsistent with his innocence."
[58] In Sharad v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court has framed the following five principles:
"1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 41 of 46
3) the circumstances should be of a conclusive nature and tendency unerringly pointing towards the guilt of the accused.
4) they should exclude every possible hypothesis except the one to be proved, and
5) there must be a chain of evidence so complete 4s not to leave any reasonable ground for the conclusion consistent with the Innocence of the accused and must show that in all human probability the act must have been done by the accused." [59] It is a trite law that where the case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the Innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 42 of 46 [60] In every case based upon circumstantial evidence and in this case as well, the question that needs to be determined is whether prosecution has established the circumstances and whether all the links in the chain of circumstances is so complete pointing to guilt of the accused to rule out possibility of innocence of the accused. [61] It is settled law that the circumstances from which the conclusion of the guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence.
[62] In Rumi Bora Dutta v. State of Assam, 2013 (7) SCALE 535, the Hon'ble Supreme Court held that when a case totally hinges on circumstantial evidence, it is the duty of the Court to see the circumstances which lead towards the guilt of the accused should have been fully established. The germane portion of the judgment is extracted herein below:
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 43 of 46 "10. It is seemly to state here that the whole case of the prosecution rests on the circumstantial evidence. The learned trial Judge as well as the High Court has referred to certain circumstances. When a case is totally hinges on the circumstantial evidence, it is the duty of the Court to see that the circumstances which lead towards the guilt of the accused have been fully established and they must lead to a singular conclusion that the accused is guilty of the offence and rule out the probabilities which are likely to allow the presumption of innocence of the accused."
[63] If we examine the present case in the light of the settled position of law whether the prosecution has succeeded in establishing the sequence of circumstances which can be called conclusive in nature, this Court finds that there is no sequence of circumstances. Interestingly, no blood stain was seized from the place of occurrence. That apart, as stated supra, no material articles were sent to the forensic and science department for chemical analysis and also the photographer who has taken Ex.P7 to 11-photographs has not examined. Thus, there is no proper investigation and the prosecution has also failed to prove on record the strong motive on the part of the appellants-accused, or any such circumstance which could provoke them to the extent of taking such a drastic step of eliminating the deceased Penmi.
Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 44 of 46 [64] The trial Court came to the conclusion that there was no eye witnesses to the incident and that the case was based on circumstantial evidence. For appreciating the law based upon circumstantial evidence, the trial Court mainly took into consideration the decisions of the Hon'ble Supreme Court in the cases of Munna Kumar Upadhayay v. State of A.P., (2012) 6 SCC 174 and SanatanNaskar and another v. State of West Bengal, (2010) 8 SCC 249. Since the prosecution failed to prove that the appellants-accused alone caused physical assault to the deceased, which resulted in his death, there is no question of bringing the appellants- accused under Section 304 Part II IPC and convicting them. When the prosecution failed to link the appellants-accused to the alleged crime, the question of considering sudden provocation or committing of crime without premeditation does not arise.
[65] The circumstances relied upon by the prosecution are not established by cogent evidence. The circumstances relied upon by the prosecution do not form complete chain to point to the guilt of the appellants-accused. When reasonable doubts arise as to the prosecution version, the benefit of which is to be given to the appellants-accused. Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 45 of 46 [66] Upon analysis of the evidence, this Court is of the considered view that the circumstances cumulatively do not form a complete chain pointing to the guilt of the appellants-accused and the uncorroborated evidence of P.W.1 is not sufficient to connect the appellants-accused with the crime alleged. The conviction cannot be based even on a strong suspicion and it should be only on the strict proof of the same by the prosecution. Reasonable doubts arise as to prosecution case and therefore, the conviction of the appellants-accused cannot be sustained. In the light of the above, this Court is of the view that the trial Court erred in convicting the appellants-accused even for the offence under Section 304 Part II IPC and therefore, the same is liable to be set aside.
[67] In the result,
a) The conviction of the appellants-accused in S.T. Case
No.10/2006/11/2006 on the file of learned Additional Sessions Judge, Manipur East dated 15.07.2013 and the order of sentence dated 25.07.2013, are set aside and these jail appeals preferred by the appellants- accused are allowed;
b) The appellants-accused are not found guilty of the offence for which they were charged, tried and finally Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013 Page 46 of 46 convicted under Section 304 Part II IPC and accordingly, they are acquitted.
c) The fine amount, if any, paid by them are ordered to be refunded to them. In case, if 50% of the fine amount paid to the heirs of the deceased as per the judgment of the trial Court, the same cannot be recovered from the heirs of the deceased and the appellants-accused are entitledfor refund of only 50% of the same.
d) The appellants-accused are directed to be released forthwith, if they are not required in any other case. [68] Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.
JUDGE FR/NFR
-Larson Criminal Jail Appeal Nos.4 of 2013 with Criminal Jail Appeal No.5 of 2013