Jharkhand High Court
Bindeshwari Rout vs The State Of Jharkhand on 8 May, 2019
Author: H.C. Mishra
Bench: H. C. Mishra, Sanjay Kumar Dwivedi
Cr. Appl. (D.B.) Nos. 472 & 498 of 2008
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 472 of 2008
With
Criminal Appeal (D.B.) No. 598 of 2008
(Against the Judgment of conviction dated 11.3.2008 and Order of sentence
dated 15.03.2008, passed by the VIth Additional Sessions Judge, F.T.C.-III,
Godda, in S.T. No. 3 of 2006 / 3 of 2008.)
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Bindeshwari Rout ... ... Appellant
(Criminal Appeal (D.B.) No. 472 of 2008)
1. Arjun Rout
2. Prem Lal Rout
3. Bhirgu Rout
4. Sanjay Rout
5. Mani Lal Rout
6. Antram Rout
7. Nand Lal Rout ... ... Appellants
(Criminal Appeal (D.B.) No. 598 of 2008)
Versus
The State of Jharkhand ..... ... Respondent
(In both the appeals)
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PRESENT
HON'BLE MR. JUSTICE H. C. MISHRA
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Jitendra Shankar Singh, Advocate.
For the informant : Mr. Manoj Kumar Sah, Advocate
For the respondent-State : Mr. Shekhar Sinha, A.P.P.
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By Court.:- As both these appeals arise out of the same impugned Judgment, they have
been heard together and are being disposed of by this common Judgment.
2. Heard learned counsel for the appellants, learned counsel for the State as also the learned counsel for the informant.
3. The appellants are aggrieved by the impugned Judgment of conviction dated 11.3.2008 and Order of sentence dated 15.03.2008, passed by the learned VIth Additional Sessions Judge, F.T.C.-III, Godda, in S.T. No. 3 of 2006 / 3 of 2008, whereby, the appellants have been found guilty and convicted for the offences under Sections 302 / 149 and 148 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life, for the offence under Sections 302 / 149 of the Indian Penal Code, and R.I. for one year for the offence under Section 148 of the Indian Penal Code, and both the sentences were directed to run concurrently.
Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -2-
4. The prosecution case was instituted on the basis of fardbeyan of the informant Anirudh Mirdha, the father of the deceased Master Mirdha, recorded at Sadar Hospital, Godda, on 21.07.2005 at about 8.30 A.M., wherein he has stated that on the previous date, i.e., 20.07.2005 at about 5.00 P.M., the informant and his son Master Mirdha were returning from Manikpur market. As they reached near the house of one Ramni Mohan Thakur, in their village Manikpur, 10 accused persons named by informant, including these appellants, apprehended his son and Arjun Rout assaulted him by axe on his chest, due to which his son fell down. Thereafter, other accused persons assaulted his son by handle of spades and axes. They were asking to kill his son, and when one Awadhesh Yadav, who was also coming behind them, raised the alarm, he was also assaulted by the accused Kartic Rout and Mani Lal Rout, by lathi. His son became unconscious and thereafter all the accused persons fled away. He brought his son to the Sadar Hospital, Godda, where he was declared dead. Claiming that the accused persons had assaulted his son by axe and spades due to which his son had died, the fardbeyan was given by the informant, on the basis of which, Poraiyahat P.S. Case No. 110 of 2005 corresponding to G.R. No. 787 of 2005, was instituted for the offences under Sections 147, 148, 149, 323 and 302 of the Indian Penal Code, against all the 10 named accused persons, and investigation was taken up. After investigation the police submitted the charge-sheet against 9 accused persons, who had faced the trial and were convicted by the Trial Court below. During the pendency of their appeals, the appellant No.1 Kartic Rout, in Criminal Appeal (DB) No. 472 of 2008, died, and the appeal abated, so far as this appellant was concerned, and his name was deleted from the array of the appellants.
5. Upon commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 147, 148, 302 / 149, 307 / 149 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial.
6. In course of trial, the prosecution has examined 12 witnesses, including the I.O., and the Doctor, who conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-12 Madan Tiwari is only a formal witness, who is not of much importance for the purpose of these appeals.
7. P.W.-10 Anirudh Mirdha is the informant of the case and father of the deceased. This witness has stated that Master Mirdha was his son, who was murdered about 1½ years ago, in the month of July on a Wednesday. The occurrence Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -3- had taken place when his son Master Mirdha was returning house from Manikpur market and the informant was also following him. When they reached near the house of Ramni Mohan Thakur, there was some commotion, and this witness, who was about 50 yards behind, rushed and found the accused persons Arjun Rout, Kartic, Bindeshwari, Mani Lal, Prem Lal, Nand Lal, Sanjay, Bhrigu, Balgovind, in all 9 accused persons had surrounded his son, and Arjun Rout assaulted his son by the handle of the axe on his chest, due to which he fell down, and thereafter all the accused persons assaulted him by the blunt portion of the spade, due to which he died. They were asking to kill his son, and the accused persons fled away saying that he had died. With the help of the villagers, he brought his son to Godda hospital, where he was declared dead. He gave the fardbeyan to the police in the next morning in the hospital itself, and he has identified his signature on the fardbeyan, which was earlier marked as Ext. 2/3. He has identified the accused persons in the Court. He has stated that the occurrence had taken place due to some difference between them due to the construction of the PCC road. In his cross-examination, and he has admitted that he had not stated before the police that the occurrence had taken place due to the difference for construction of the PCC Road, and that he was coming behind his son at the time of occurrence. He has stated that the occurrence had taken place after four houses from his own house.
8. P.W.-2 Jyotish Yadav, P.W.-3 Awdhesh Yadav, P.W.-4 Most. Gita Devi, the wife of the deceased, P.W.-5 Chandrika Devi, the mother of the deceased, P.W.-8 Gopal Yadav and P.W.-9 Ajay Mirdha, the brother of the deceased, have also supported the prosecution case as eye witnesses to the occurrence, more or less in the similar manner, stating that while the deceased was returning from the market, he was assaulted by Arjun Rout by the blunt portion of the axe and when he fell down, the other accused persons also assaulted him by the blunt portion of the spade. P.W.-2 Jyotish Yadav and P.W.-3 Awdhesh Yadav have stated that at the time of occurrence they were also returning from the market, whereas the other witnesses upon hearing the commotion, rushed to the place of occurrence from their houses, situated near the place of occurrence, and they have also claimed to be the eye witnesses to the occurrence. In the evidence of all these witnesses it has come that the assaults were made by the blunt portion of the weapons, by the accused persons. P.W.-2 Jyotish Yadav is also a witness to the inquest report of the dead body, and he has proved his signature and the signature of other witness on the inquest report, which were marked as Exts. 2 and 2/1 respectively, whereas the P.W.-3 Awdhesh Yadav is also witnesses to the fardbeyan, and he has also proved his Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -4- signature and the signature of the informant on the fardbeyan, which were marked as Exts. 2/2 and 2/3.
9. P.W.-7 Nageshwar Mandal has supported the prosecution case as hearsay witness, stating that he was informed about the occurrence by Ajay Mirdha, the brother of the deceased. P.W.-6 Subodh Yadav has only stated that he had seen the deceased fallen unconscious, but he has not stated anything about the occurrence.
10. P.W.-1 Dr. Pradeep Kumar Sinha had conducted the post-mortem examination on the dead body of the deceased on 21.07.2005, and had found the following injuries on the dead body of the deceased:-
Ante mortem injuries:-
1. Bruises 4"x3" over front of chest in the upper part. On disSection muscles beneath the wound were congested and lacerated with fracture of sternum in the upper part.
2. Bruise 4"x1/2" over the left side of face in the lower part.
3. Bruise 2"x2" over left side of face in the upper part.
4. Abrasion over the neck 1"x1/4".
5. Sharp cut wound of size 1"x1/2"x1/4" over anterior part of the front of right leg - 3 in number, 2 in upper part sap rated, & another in the lower part.
6. Lacerated wound of size 1/2"x1/2"x1/2" over left leg in front.
On dissection:-
Brain was congested, Right lung lacerated 3"x2"x1" over upper and interior part, Right thorasic cavity full of blood, Heart a was empty, Stomach contained partially digested food material.
This witness has stated that the cause of death was shock and hemorrhage as a result of multiple injuries particularly injury No. 1, which was grievous in nature. The injuries were caused by hard and blunt substance, such as blunt portion of the spade / farsa. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext. 1.
11. P.W.-11 Hopana Tudu is the I.O. of the case. He has stated that on 21.07.2005 he was posted as S.I. at Poraiyahat Police Station. There was an information about some occurrence in the village Manikpur. He had entered a sanha entry and he proceeded with the police party to Godda Sadar Hospital, where the fardbeyan of the informant was recorded. He has proved the fardbeyan and the endorsement on the fardbeyan, which were marked as Exts. 2/4 and 2/5 respectively. He has also proved the inquest report of the dead body, which was marked as Ext. 3. He has stated that he had recorded the re-statement of the informant and sent the dead body for post-mortem examination. Thereafter he inspected the place of occurrence, which is the village road. He had not found any incriminating article at the place of Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -5- occurrence. He had recorded the statements of the witnesses and received the post-mortem report and submit the charge-sheet. There is nothing of much importance in his cross-examination.
12. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. One documentary evidence was adduced by the defence, which was marked as Ext. A, which is only a charge-sheet in a different police case. On the basis of the materials available on record, the appellants were convicted and sentenced by the Trial Court below, for the offences as aforesaid.
13. Learned counsel for the appellants submits that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, the accused persons have been convicted with the help of Section 149 of the Indian Penal Code, but there is no evidence to show that there was any common object to cause the death of the deceased. Learned counsel submits that admittedly all the assaults upon the deceased were made only by the blunt portions of the sharp cutting weapons, and had there been any intention to cause the death of the deceased, the deceased could have been assaulted by the sharp edged portion of the weapons. As such, it cannot be said that the accused persons had assaulted the deceased with the intention to cause his death. Learned counsel also submitted though the main allegation of assault is upon the accused Arjun Rout, but according to the evidence on record, he had also assaulted the deceased only by the blunt portion of the axe. Learned counsel accordingly, submitted that the even if the evidence on record is accepted in entirety, ignoring the discrepancies therein, it cannot be said that accused persons were having the intention to cause the death of the deceased. As such the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law.
14. Learned counsels for the State and the informant have opposed the prayer and submitted that the prosecution case is fully supported by P.W.-2 Jyotish Yadav, P.W.-3 Awdhesh Yadav, P.W.-4 Most. Gita Devi, the wife of the deceased, P.W.-5 Chandrika Devi, the mother of the deceased, P.W.-8 Gopal Yadav, P.W.-9 Ajay Mirdha, the brother of the deceased and P.W.10- Anirudh Mirdha, the father of the deceased and the informant of the case, as eye witnesses to the occurrence and all these witnesses have specifically stated that when the deceased was returning back from the market, he was apprehended by the accused persons. Arjun Rout made the first assault on the chest of the deceased due to which he fell down, Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -6- thereafter all the accused persons assaulted him indiscriminately causing his death at the spot. It is submitted that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-1 Dr. Pradeep Kumar Sinha, who had found six injuries on the dead body of the deceased. Learned counsels accordingly, submitted that offence is clearly made out against the accused persons for the offence under Section 148 of the Indian Penal Code, as the accused persons had formed the unlawful assembly to commit offence armed with deadly weapons, and the offence is also made out against them under Sections 302 / 149 of the Indian Penal Code, as the offence was committed in the prosecution of the common object of all of them. As such, there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.
15. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that though the eye witnesses to the occurrence, including the informant, have supported the prosecution case stating that all the accused persons had assaulted the deceased, but the fact remains that all the eye witnesses have stated that the accused Arjun Rout had assaulted the deceased by blunt portion of the axe on his chest, due to which he fell down and thereafter other accused persons had also assaulted with the blunt portions of their weapons. In view of the fact that there is evidence against all the accused persons that they had assaulted the deceased by blunt portions of the sharp cutting weapons, which they were holding, we are of the considered view that it is absolutely doubtful whether the accused persons were having the intention to cause the death of the deceased. Had there been any intention to cause the death of the deceased, the assaults could have been made by the sharp edge of the weapons. In that view of the matter, we are of the considered view, that the prosecution has not been able to prove the fact that the appellants were having the common object to cause the death of the deceased, and the offence was committed in prosecution of that common object, even though they were forming an unlawful assembly armed with deadly weapons. Injuries on the deceased were proved by P.W.-1 Dr. Pradeep Kumar Sinha, and his evidence and the post-mortem report proved by him as Ext. 1, clearly show that there was only one injury on the chest of the deceased which was grievous in nature, but that was also not a bleeding injury. The said injury was found to be grievous in view of the fact that the muscles beneath the wound were congested and lacerated with fracture of sternum. The author of this injury is the appellant Arjun Rout, and other injuries upon the deceased were only simple in nature. As such, even though the appellant Arjun Rout cannot be said to be having the Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -7- intention to cause the death of the deceased, but the manner in which the assault was made, it cannot be ruled out that this accused was not having the knowledge that such assault could result into the death of the deceased. As such, in our considered view the offence against the accused Arjun Rout is not made out under Sections 302 / 149 of the Indian Penal Code, rather the offence is made out only under Section 304 Pt. II of the Indian Penal Code. So far as the other appellants are concerned, though the injuries caused by them were only simple in nature, but the fact remains the assaults were made by the dangerous weapons. Since the common object to cause the death of the deceased could not be proved, the offence is made out against the rest of the appellants only under Section 324 of the Indian Penal Code, and not under Sections 302 / 149 of the Indian Penal Code. Since all the appellants had taken part in the offence, forming an unlawful assembly armed with deadly weapons, the offence under Section 148 of the Indian Penal Code, is made out against all the appellants.
16. From the Lower Court Record, we find that the appellant Arjun Rout was taken into judicial custody on 22.09.2005, and the appellant Bhirgu Rout was taken into judicial custody on 18.09.2005. All the other appellants were taken into judicial custody on 26.07.2005 and 27.07.2005. The appellants were granted bail during the pendency of trial. Arjun Rout was bailed out on 28.04.2006, where as other accused were granted bail on 14.02.2006. The appellants were again taken into judicial custody on the date of Judgment, i.e., on 11.03.2008. Arjun Rout is still in custody undergoing the sentence. Whereas the appellant Bindeshwari Rout was granted bail by this Court vide order dated 06.05.2008, and other appellants have been granted bail by order dated 09.02.2009. This shows that the appellant Arjun Rout has remained in custody for more than 11 years, and other appellants except the Bindeshwari Rout have remained in custody for nearly about 1 year, whereas Bindeshwari Rout has also remained in custody for slightly more than 8 months.
17. In view of the discussions as aforesaid, the impugned Judgment of conviction dated 11.03.2008, passed by the learned VIth Additional Sessions Judge, F.T.C.-III, Godda, in S.T. No. 3 of 2006 / 3 of 2008, convicting the appellants for the offence under Sections 302 / 149 of the Indian Penal Code, is hereby, modified to the extent that the appellant Arjun Rout, is hereby, found guilty and convicted for the offence under Section 304 Pt. II of the Indian Penal Code, whereas all the other appellants are found guilty and convicted for the offence under Section 324 of the Indian Penal Code. The Order of the sentence dated 15.03.2008, passed by the Trial Court, is also modified to the extent that the appellant Arjun Rout is sentenced to undergo R.I. for Cr. Appl. (D.B.) Nos. 472 & 498 of 2008 -8- 10 years for the offence under Section 304 Pt. II of the Indian Penal Code, whereas other appellants, namely, Bindeshwari Rout, Prem Lal Rout, Bhirgu Rout, Sanjay Rout, Mani Lal Rout, Antram Rout and Nand Lal Rout, are sentenced to undergo R.I. for 8 months each, for the offence under Section 324 of the Indian Penal code. All the appellants are also sentenced to undergo R.I. for 8 months each, for the offence under Section 148 of the Indian Penal code, and the sentences are directed to run concurrently. Since all the appellants have already undergone their sentence, the appellant Arjun Rout, who is in custody, is directed to be released and set at liberty forthwith, if his detention is not required in any other case. The other appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. The impugned Judgment of conviction dated 11.03.2008 and Order of sentence dated 15.03.2008, passed by the learned VIth Additional Sessions Judge, F.T.C.-III, Godda, in S.T. No. 3 of 2006 / 3 of 2008, thus, stand modified to the extent as above.
18. We find that P.W.-4 Most. Gita Devi, the wife of the deceased is the victim of crime, as she has lost her husband in the occurrence. She should be duly compensated under the 'Victim Compensation Scheme' under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that she may be given due compensation at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful.
19. Both these appeals are accordingly, dismissed with the modification in the Judgment of conviction and Order of sentence as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.
Dated the 8th May, 2019.
NAFR/ M.M.