Jharkhand High Court
Alok Kumar Ram vs The State Of Jharkhand on 17 July, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 579 of 2006
With
Criminal Appeal (D.B.) No. 170 of 2006
(Against the Judgment of conviction dated 21.12.2005 and Order of sentence
dated 02.01.2006, passed by the 7th Additional Sessions Judge (Fast Track
Court No.-4), Godda, in Sessions Case No.16 of 2005 / 09 of 2005).
-------------
Alok Kumar Ram ..... ... Appellant
[In Cr. Appeal (D.B.) No.579 of 2006]
1. Anand Kumar Ram
2. Sundar Ram ..... ... Appellants
[In Cr. Appeal (D.B.) No.170 of 2006]
Versus
The State of Jharkhand ..... ... Respondents
[In both the appeals]
--------
For the Appellant(s) : Mr. A.K. Kashyap, Sr. Advocate
M/s. Anurag Kashyap
and Sudhir Kumar, Advocates
[In both the appeals]
For the Respondent-State : Mr. Arun Kumar Pandey, A.P.P.
For the Informant : Mr. V.K. Tiwary, Advocate
[In both the appeals]
--------
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
--------
By Court.:- As both these appeals arise out of the same impugned Judgment, they
are heard together and are being disposed of by this common Judgment.
2. Heard learned senior counsel for the appellants and learned counsel for the State, as also learned counsel for the informant.
3. The appellants are aggrieved by the impugned Judgment of conviction dated 21.12.2005 and Order of sentence dated 02.01.2006, passed by the learned 7th Additional Sessions Judge (Fast Track Court No.-4), Godda, in Sessions Case No. 16 of 2005 / 09 of 2005, whereby, the appellant Alok Kumar Ram has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, whereas both the other appellants have been found guilty and convicted for the offences under Sections 302 / 34 of the Indian Penal Code and Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellants have Criminal Appeal (D.B.) No. 579 of 2006
-2- With Criminal Appeal (D.B.) No. 170 of 2006 been sentenced to undergo R.I. for life with fine of Rs. 5,000/- each, for the offences under Sections 302 and 302 / 34 of the Indian Penal Code, and they have further been sentenced to undergo R.I. for three years each, for the offence under Section 27 of the Arms Act, and all the sentences were directed to run concurrently.
4. The prosecution case was instituted on the basis of the fardbeyan of the informant Bhikhari Ram, the father of the deceased Chiranjivi Kumar Ram, recorded on 23.10.2004 at 10:30 P.M. in the night, at P.H.C. Meharma, P.S. Meharma, District Godda, wherein, the informant has stated that on the same day, i.e., 23.10.2004 at about 06:00 P.M., he was going with his four sons, including the deceased, elder brother and nephew, to see the Goddess Durga idol on the occasion of Dussehra. His son Chiranjivi Kumar Ram was going ahead of them and as soon as they reached at the distance of 10-12 meters from their house, they saw the accused persons Alok Kumar Ram, Anand Kumar Ram and Sundar Ram standing there. Anand Kumar Ram and Sundar Ram gave orders to fire upon Chiranjivi Kumar Ram, whereupon the accused Alok Kumar Ram took out a country made pistol from his waist and fired upon Chiranjivi Kumar Ram, causing injuries in the side of his chest, due to which his son fell down. The informant and his family members tried to apprehend the accused persons, but they threatened them with their pistols and fled away. Thereafter, the informant brought his son to the Primary Health Center, Meharma, on a Marshal vehicle, but his son died in the way. The informant has also stated in the fardbeyan that in the previous night there was an orchestra programme on the occasion of Durga Puja, in which his son had also started dancing in rhythm during the dance by a female dancer, which was objected by the accused persons who were working as volunteers and some altercation had taken place between them and the deceased, and because of that incident, the accused persons had assaulted the deceased to death. On the basis of the fardbeyan of the informant, Meharma P.S. Case No.171 of 2004, corresponding to G.R. No.1012 of 2004, was instituted for the offences under Sections 302 / 34 of the Indian Penal Code and Section 27 of the Arms Act, against these three accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.
Criminal Appeal (D.B.) No. 579 of 2006
-3- With Criminal Appeal (D.B.) No. 170 of 2006
5. After commitment of the case to the Court of Session, charge was framed against the accused Alok Kumar Ram for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, and against the remaining two accused persons, namely, Anand Kumar Ram and Sundar Ram for the offences under Sections 302 / 34 of the Indian Penal Code and Section 27 of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 17 witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. No evidence was adduced by the defence in the case.
6. P.W.-10 Bhikhari Ram is the informant and father of the deceased. This witness has supported the prosecution case as an eye-witness to the occurrence, stating that the occurrence had taken place on 23.10.2004 at about 06:00 P.M. He was going along with his four sons, elder brother and nephew for seeing the idol of Goddess Durga. As soon as, they reached on the PCC road, they saw Anand Kumar, Alok Kumar and Sundar Ram. Anand and Sundar caught hold the wrist of his son and they ordered to shoot Chiranjivi, whereupon, Alok Kumar fired from a country made pistol, causing injury on the left side of the chest, due to which his son fell down. There was a connotation thereafter, and the accused persons fled away threatening them by pistols. He has stated that he brought his son on a Marshal vehicle to Health Center, Meharma, but he died in the way. He has also stated that his statement was recorded by the police at Health Center, Meharma, at about 10:30 P.M., whereupon he had put his signature which he has identified and the same was marked Ext.1/a. He has identified the accused persons present in the Court. This witness was put to extensive cross-examination in which he has stated that there was an orchestra programme during Durga Puja festival and he had also gone to see the programme. He has stated that his son had neither annoyed any dancer in the programme nor the accused persons had prevented him from doing so. He has denied the suggestion that upon such preventing, the deceased had badly assaulted the accused Alok. He has also stated that the place of occurrence is situated at a distance of 10-12 meters from his house, and it is visible from his house. He has stated that he had seen the accused persons, as soon as he came out of the house, but they did not feel frightened, as the occurrence had Criminal Appeal (D.B.) No. 579 of 2006
-4- With Criminal Appeal (D.B.) No. 170 of 2006 taken place suddenly. He has stated that his son had sustained bleeding injury and the place of occurrence was also stained by blood. He has also stated that some police personnel had also accompanied them to the Health Center, Meharma. He has stated that all the documents were prepared at Health Center, Meharma. His blood stained clothes were not taken by the police, but the blood stained earth was seized from the place of occurrence. He has denied the suggestion of giving false evidence.
7. P.W.-1 Kuldeep Ram, the uncle of the deceased, P.W.-4 Vishwajeet Kumar Ram, P.W.-5 Ranjit Kumar Rai, P.W.-6 Shyam Lal Ram, P.W.-7 Mukesh Kumar, the cousin of the deceased, P.W.-8 Sitesh Kumar and P.W.-15 Vivek Kumar, have supported the prosecution case as eye-witnesses to the occurrence, in more or less the same manner as stated by the informant. They have also stated that upon seeing the deceased, Anand Kumar Ram and Sundar Ram caught hold of him and gave orders to kill him, whereupon Alok Kumar Ram fired the pistol upon him, causing the injury, due to which he fell down. These witnesses have also stated that they brought the deceased to Primary Health Center Meharma, but he died in the way. P.W.-1 Kuldeep Ram is also a witness to the inquest report. P.W.-1 Kuldeep Ram and P.W.-7 Mukesh Kumar have also stated about the altercation between the deceased and the accused during the orchestra programme in the previous night. There is nothing of much importance in their cross-examinations barring minor contradictions. The allegation of firing the pistol upon the deceased by Alok Kumar Ram, upon the orders given by the other two accused, is fully supported by these witnesses.
8. P.W.-2 Chaturbhuj Kumar Ram, P.W.-3 Hemchandra Rai, P.W.-9 Mohan Lal Ram, P.W.-13 Gautam Kumar Ram, P.W.-14 Nand Kishore Ram, P.W.-16 Parwati Devi, the mother of the deceased and P.W.-17 Subala Devi, the aunt of the deceased, have supported the prosecution case as hearsay witnesses to the occurrence, who reached the place of occurrence upon hearing the sound of firing and had found the deceased in injured condition. They have also stated that they were informed about the occurrence at the place of occurrence, and that the deceased was taken away to hospital, but he died in the way. P.W.-9 Mohan Lal Ram, P.W.-16 Parwati Devi and P.W.-17 Subala Devi have also stated that they saw the accused persons fleeing away from the place of occurrence. P.W.-14 Nand Kishore Ram has stated that by Criminal Appeal (D.B.) No. 579 of 2006
-5- With Criminal Appeal (D.B.) No. 170 of 2006 the time he had reached the place of occurrence, the deceased had already been put in the Marshal vehicle for being taken to the hospital. He has stated that he heard that Alok Ram had assaulted the deceased by fire arm and he had heard nothing else, but all the other witnesses have stated that they were informed that upon the orders given by Anand Kumar Ram and Sundar Ram, the accused Alok Kumar Ram had fired the pistol upon the deceased, causing the injury, due to which he fell down. Some of these witnesses have also supported the case that there was altercation between the deceased and the accused persons during the dance programme in the previous night. P.W.-2 Chaturbhuj Kumar Ram and P.W.-13 Gautam Kumar Ram are the witnesses to seizure list of the seizure of the fired front portion of the bullet from the place of occurrence, and they have proved their signatures on the seizure list, which were marked Ext.1 and 1/1 respectively. P.W.-3 Hemchandra Rai is also a witness to the inquest report of the dead body.
9. P.W.-11 is Dr. Jai Krishna Prasad Sinha, who had conducted the post-mortem examination on the dead body of the deceased on 24.10.2004 and had found the following ante-mortem injuries on the dead body of the deceased :
Ante-mortem injuries :
(i) Wound of entrance with margin inverted 1½" in diameter, over the left coastal area, with charring around the wound .
(ii) Wound of exit margin everted 2" in diameter situated over the posterity at the level of eight 12th rib .
On dissection :-
Skull- the bony cage was intact but brain and meninges were pale.
Chest- There was collection of blood inside the thoracic cavity, the left lung was lacerated at lower level while right lung was pale and heart was empty- all chambers. Abdomen- spleen and the lower part of the stomach was penetrated. The liver was pale and abdomen was filled with blood. The stomach contain partially digested food material with digestive liquid about 150 m.l. while bladder had 100 ml. of urine.
Criminal Appeal (D.B.) No. 579 of 2006
-6- With Criminal Appeal (D.B.) No. 170 of 2006 This witness has stated that the death had been caused due to hemorrhage and shock due to the injury No.(i), which was sufficient to cause the death in ordinary course of nature. He has stated that the injury was caused by fire arm. He has also proved the post-mortem report to be in his pen and signature, which was marked Ext.-2. In his cross-examination this witness has stated that he had not mentioned the diameter of charring around the wound of entry. He has also stated that the wound of entry may be possible with pistol or revolver and he had not mentioned the diameter of penetrating injury on spleen and lower part of stomach. He did not find any foreign particles inside the body. He has stated that wound of entry may be caused after shot fire at the distance of 5-10 feet.
10. P.W.-12 is Vishnu Razak, the I.O. of the case. This witness has stated that on 23.10.2004 he was posted at Mehrama Police Station as Officer-Incharge. On that day, about 22.00 hours he was informed that one person was injured by fire arm, who had been brought to Primary Health Centre, Mehrama, whereupon he made the sanha entry about that information and proceeded towards Primary Health Centre, where he recorded the fardbeyan of the informant. He also prepared the inquest report of the dead body which he has proved and the same was marked Ext.3. Thereafter, he recorded the re-statement of the informant. He visited the place of occurrence which was a PCC road, situated at the distance of about 10 meters from the house of the deceased. He also found blood stains and the front part of the fired bullet at the place of occurrence. He has also stated that house of the accused persons is situated by the side of the house of the deceased. He has proved the seizure list of the seizure of the front part of the fired bullet, which was marked Ext.4, and he also produced that fired bullet in the Court, which was marked as Material Ext.-I. He recorded the statements of the witnesses. He arrested the accused persons and upon getting the post-mortem report and completing the investigation, he submitted the charge-sheet in the case. He has proved the fardbeyan and the endorsement made thereon to be in his pen and signature, which were marked Exts. 5 and 5/a. He has also proved the formal F.I.R., which was marked Ext.-6. In his cross examination, this witness has stated that he had neither sent the blood stained soil nor the bullet for forensic examination. He had not seen blood stains on the cloths of any person at the hospital. He had prepared the sketch map of the place of Criminal Appeal (D.B.) No. 579 of 2006
-7- With Criminal Appeal (D.B.) No. 170 of 2006 occurrence and he has also stated that the place of occurrence is situated at a distance of about 10 meters from the house of the deceased and the same is visible from the said house. He has also stated that he was not informed about any occurrence that had taken place in the previous night in the orchestra programme. This witness has also admitted that nothing was recovered from the accused persons and has denied the suggestion to have made faulty investigation.
11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No defence evidence was adduced in the case. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below, as aforesaid.
12. Learned senior counsel appearing for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charges against the accused persons beyond all reasonable doubts. It is submitted by learned senior counsel that though there is a motive given in the F.I.R., by the informant stating that there was an altercation between the deceased and the accused persons in the previous night during orchestra programme, but this motive has been concealed by the informant P.W.-10 Bhikhari Ram in his evidence in the Trial Court and he has also stated in his cross examination that no such incident had taken place in the previous night, but the other witnesses have supported this fact, which clearly makes the prosecution case doubtful. Learned senior counsel also submitted that the witnesses have also made improvements in their evidence, in as much as, there is no allegation in the F.I.R. that the appellants Anand Kumar Ram and Sundar Ram had caught hold of the deceased, whereas in their evidence the witnesses have stated like that. Learned senior counsel further submitted that even the I.O. has denied the knowledge about any incident of the previous night, and no fire arm was recovered from the accused persons. The recovered bullet was not sent for forensic examination. Learned senior counsel further submitted that from the perusal of the F.I.R., it would appear that the occurrence had taken place at about 6.00 P.M. on 23.10.2004, the F.I.R. was lodged at about 10.30 P.M. in the night, but the signature of the learned C.J.M. In-charge shows that it was Criminal Appeal (D.B.) No. 579 of 2006
-8- With Criminal Appeal (D.B.) No. 170 of 2006 seen by him on 23.10.2004 itself, which also makes the F.I.R. doubtful. Learned Senior counsel lastly submitted that in any event, there is allegation of assault only against the accused Alok Kumar Ram and not against the other two appellants and from the evidence on record it cannot be said that these appellants were also sharing the common intention of causing the death of the deceased. Learned Senior counsel accordingly, submitted that in the facts of this case, the appellants were entitled at least to the benefits of doubt.
13. Learned counsel for the State as also learned counsel for the informant, on the other hand, have opposed the prayer and have submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts. It is submitted by learned counsels that all the witnesses, supporting the prosecution case as eye witnesses, have stated that upon the orders given by the accused Anand Kumar Ram and Sundar Ram, the accused Alok Kumar Ram fired the pistol upon the deceased, causing bleeding injury upon him due to which the deceased fell down. All these witnesses have stated that all the three accused persons, thereafter, fled away threatening the witnesses by their pistols. The deceased was brought to hospital, but he died in the way. Learned counsels further submitted that the hearsay witnesses have also supported the fact that no sooner they reached the place of occurrence, they saw the deceased in the injured condition with fire arm injury and he was taken to the hospital. They were also informed that upon the orders given by accused Anand Kumar Ram and Sundar Ram, the accused Alok Kumar Ram had fired pistol upon him causing injury upon him, which ultimately proved fatal. P.W.-9 Mohan Lal Ram, P.W.-16 Parvati Devi and P.W.-17 Subala Devi have also stated that they had seen the accused persons fleeing away from the place of occurrence. Learned counsels submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-11 Dr. Jai Krishna Prasad Sinha, and the post-mortem report proved by him as Ext.-2, who had found the fire arm injury upon the deceased which was sufficient in the ordinary course of nature to cause the death. Learned counsels accordingly, submitted that the roles played by the appellants Anand Kumar Ram and Sundar Ram clearly show that they were also sharing the common intention to commit the murder of the deceased and upon their orders, the appellant Alok Kumar Ram had fired the pistol upon the deceased and the injury caused thereby, proved fatal.
Criminal Appeal (D.B.) No. 579 of 2006
-9- With Criminal Appeal (D.B.) No. 170 of 2006 Learned counsels accordingly, submitted that the offences are clearly made out against all the accused persons and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.
14. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the eye witnesses, namely P.W.-1 Kuldeep Ram, P.W.-4 Vishwajeet Kumar Rai, P.W.-5 Ranjeet Kumar Rai, P.W.-6 Shyam Lal Ram, P.W.-7 Mukesh Kumar, P.W.-8 Sitesh Kumar, P.W.-10 Bhikhari Ram, the informant and the father of the deceased and P.W.-15 Vivek Kumar. All these witnesses have stated that upon the orders given by the accused Anand Kumar Ram and Sundar Ram, the accused Alok Kumar Ram fired pistol upon the deceased, causing injury in the left side of his chest, which ultimately proved fatal. Theses witnesses have also stated that the accused persons, thereafter, fled away threatening the witnesses by pistols in their hands. Though these witnesses have also stated that accused Anand Kumar Ram and Sundar Ram had caught hold the deceased, which may be exaggeration on their part, as their attention was also drawn towards this statement in their cross-examinations, but the necessary contradiction has not been taken from the I.O., P.W.-12 is Vishnu Razak, in absence of which, it cannot be said that such statements were not made by them before the police, and they have made improvements in their evidence in the Court. However, the fact remains that so far as the allegation of assault and giving the orders for assaulting the deceased, as also of fleeing away from the place of occurrence threatening the witnesses by pistols, are concerned, these witnesses are the eye witness to the same and they have fully supported these facts. Even the hearsay witnesses have also supported the occurrence stating that they had reached the place of occurrence soon upon hearing the sound of firing, and they had seen the deceased in the injured condition who was taken away to the hospital. They were informed about the occurrence at the place of occurrence in the same manner as stated by the eye witnesses, except P.W.-14 Nand Kishore Ram, who has stated that he was informed only that the accused Alok Kumar Ram had fired pistol upon the deceased. P.W.-9 Mohan Lal Ram, P.W.-16 Parwati Devi and P.W.-17 Subala Devi have clearly stated that they saw the accused persons fleeing away from the place of occurrence. The ocular evidence of these Criminal Appeal (D.B.) No. 579 of 2006
- 10 - With Criminal Appeal (D.B.) No. 170 of 2006 witnesses is fully corroborated by the medical evidence of P.W.-11 Dr. Jai Krishna Prasad Sinha, who had found the wound of entry as well as the wound of exit and the connecting injuries inside the body which were sufficient in the ordinary course of nature to cause the death. Indeed the fired portion of the bullet was also found at the place of occurrence, which had come out from the body of the deceased through the wound of exit, and has been produced in the Court below, which was marked Material Ext.-1. We find from the evidence on record that that the actions of the appellants Anand Kumar Ram and Sundar Ram in giving orders to kill the deceased and also at the time of fleeing away, threatening the witnesses by pistols, clearly show that they were also sharing the common intention to cause the death of the deceased. Though some witnesses have stated about the genesis of occurrence, being the altercation between the deceased and the accused persons in the previous night during an orchestra programme, which has not been supported by the informant P.W.-10 Bhikhari Ram in his evidence, though stated in his fardbeyan, in our considered view, is not all fatal to the prosecution case. There may be some concealments / exaggerations by the witnesses which are only normal in such cases, and are fit to be ignored. There is sufficient material on record to show that the pistol was fired upon the deceased by the accused Alok Kumar Ram upon the orders given by the other two accused, viz., Anand Kumar Ram and Sundar Ram, who also shared the common intention of causing the death of the deceased, and they also took active part in committing the offence. The submission of learned senior counsel that the F.I.R. bears the signature of the Chief Judicial Magistrate In-charge, made on 23.10.2004, which shows that the F.I.R. was ante-dated, is also not of much help to the learned defence counsel, as this circumstance has been discussed in the impugned Judgment and the Court below has found from the order-sheet of the Chief Judicial Magistrate's Court that the F.I.R. reached the Chief Judicial Magistrate's Court on 24.10.2004, and the date given by the Chief Judicial Magistrate, In-charge appeared to be a clerical mistake. In the facts and circumstances of this case, we are of the considered view that the prosecution has been able to bring home the charge against all the three accused persons beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth interference by this Court.
Criminal Appeal (D.B.) No. 579 of 2006
- 11 - With Criminal Appeal (D.B.) No. 170 of 2006
15. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 21.12.2005 and Order of sentence dated 02.01.2006, passed by the learned 7th Additional Sessions Judge (Fast Track Court No.-4), Godda, in Sessions Case No.16 of 2005 / 09 of 2005, convicting and sentencing the appellant Alok Kumar Ram for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, and convicting and sentencing the appellants Anand Kumar Ram and Sundar Ram, for the offences under Sections 302 / 34 of the Indian Penal Code and Section 27 of the Arms Act, which we hereby, affirm. The appellant Alok Kumar Ram is already in custody, undergoing the sentence. The appellants Anand Kumar Ram and Sundar Ram are on bail. Their bails are hereby, cancelled and they are directed to surrender in the Court below forthwith, for serving out the sentence passed by the Trial Court below. The Trial Court below is also directed to issue processes forthwith, compelling the surrender / production of these appellants for serving out the sentence.
16. Consequently, we do not find any merit in both these appeals, and the same are accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 17th July, 2018.
Birendra / R.P./NAFR