Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 55 (JHR)

State of Jharkhand v. Ishwarnath Mishra

2006-01-20

M.Y.EQBAL, N.DHINAKAR

body2006
ORDER 1. The appellants in Cr. Appeal No. 499/05 were arrayed as A1 and .A2 in S.T. No. 140 of 1996/Trial No. 16/2003 before Addl. Judicial Commissioner, F.T.C. No. VIII, Ranchi, and along with them, Basant Mahto was also arrayed as A3. Charges were framed against the appellants along wih Basant Maho for the offence under Section 302 read with Section 34 and 120B IPC on the allegations that at about 9.00 p.m. on 26.6.1995, the appellants and Basant Mahto, in pursuance of a conspiracy hatched, committed the murder of Shiv Kumar Nath Mishra (Dl), Deo Dahi Devi (D2), their daughters Munni Kumari (D3) and Neelam Kumari (D4), by using sharp cutting weapons, inflicting several injuries on their persons. Learned Trial Judge, while acquitting Basant Mahto of all the charges and also acquitting the appellants under Section 120B IPC, found the appellants guilty for the offence under Section 302 read with Section 34 IPC and awarded death sentence to them. The appellants, aggrieved by the said order of conviction and sentence, preferred the above appeal and the Death Reference is by the Sessions Judge for confirmation by this Court. 2. As the appeal and the reference arise out of a common sessions case, both are being disposed of by the following common judgment. 3. The facts, as could be discerned from the oral and documentary evidence, can briefly summarized as follows : The first appellant is the elder brother of D1 and the second appellant is the son of first appellant. Dl was residing at village-Manatu. He (Dl) was apprehending danger to his life at the hands of his elder brother, the first appellant herein, on account of disputes between them as regards enjoyment of the landed property. He expressed his apprehension to PW 4, Hari Nandan Tiwari, who is his brother-in-law. Thereafter, Dl was assured by PW 4 that nothing will happen to him. On the date of incident, at about 7.00 p.m., PW 4 along with Govind Singh, PW 2, went to the village- Manatu and they wanted to go to the house of Shiv Narayan thakur, PW 1, to find out the situation in the village since his brother-in-law, Dl, on earlier occasion, expressed apprehension to his life. On the date of incident, at about 7.00 p.m., PW 4 along with Govind Singh, PW 2, went to the village- Manatu and they wanted to go to the house of Shiv Narayan thakur, PW 1, to find out the situation in the village since his brother-in-law, Dl, on earlier occasion, expressed apprehension to his life. While they were proceeding to the house of Shiv Narayan Thakur, PW 1, they found appellant No. 1, appellant No. 2 and three others standing fn front of the house of A3 Basant Mahto (acquitted by the trial court) and on seeing PW 2 and PW 4, the appellants bolted the door from inside and therefore, the witnesses became suspicious. Later, they went to the village and returned to the house of Dl at about 9.00 p.m. At that time, they found some persons standing at the door of the deceased D1. On seeing the witnesses, the persons, who were standing a the door, switched on Torch Light and asked them not to come there. Therefore, PWs 2 and 4 retreated towards the eastern boundary of the house and at that time, they heard groaning and mourning sounds emanating from the house of Dl. It is the further case of the prosecution that PWs 2 and 3, who also reached the scene of occurrence just before the arrival of PWs 1 and 4, saw the appellants coming out of the house with an amputated hand of one of the deceased in his hand. Thereafter, PWs 1 to 4 entered the house after the appellants left the place and found Dl to D4 laying dead with injuries all over the body. On the next date, at about 10.30 a.m. PW 4 went to the police station and gave a complaint to the Police Officer. The said complaint was reduced into writing and investigation was taken up by the Police Officer (not examined during trial) and the complaint given by the PW 4 was not also marked. After the investigation was taken up, the inquest was conducted (inquest report was also not marked) and seizure list was prepared. The body was sent by the Police Officer to the hospital for the purpose of autopsy. 4. On receipt of the requisition, PW 5, the Medical Officer attached to the RMCH, conducted autopsy on the dead body of Dl, Shiv Kumar Nath Mishra. The body was sent by the Police Officer to the hospital for the purpose of autopsy. 4. On receipt of the requisition, PW 5, the Medical Officer attached to the RMCH, conducted autopsy on the dead body of Dl, Shiv Kumar Nath Mishra. He found the following injuries :- (i) 7 cm x 3 cm x bone beep on left elbow back cutting the underlying soft tissues, the blood vessels and the lower part of the left humerus bone completely. (ii) 4 cm x 1 cm x bone deep, 3 cm x 1 cm x bone deep on the back of left fore-arm cutting the underlying bones partially. (iii) 9 cm x 2 cm x bone deep on left are lateral side cutting the underlying bone partially. (iv) 15 cm x 4 cm x bone deep on left cheek and adjoining temporoparietal bone and adjoining left fronto lateral neck upper part cutting the underlying soft tissues, the blood vessels, the zygomatic, mastoid and the temporal and the parietal and the left external ear completely. On inspection of the wound, five tags of tissues were projecting out indicting minimum six blows and the second and third and fourth cervical vertebrae were cut completely. (v) The left upper limb as amputated from the axilla and the left upper limb was lying separately. There was infiltration of blood clots in the soft and bony tissues at all the sides of incised wound. There was presence of blood clots in the cranial cavity. The Doctor also noticed the following post-mortem injuries on the dead body of D1 :- (i) The soft tissue of the right hand and the left hand including the fingers and the area of the decapitated wound, distal part of the left amputated upper limb were eaten away by animal. He issued post mortem certificate. Ext. 2, with his opinion that the death was on account of head injuries associated with haemorrhagic shock, which could have been caused by heavy sharp cutting weapon. Thereafter, he proceeded to conduct autopsy on he dead body of Munni Kumari, D3. He found the following injuries :- (1) 13 cm x 4 cm x bone deep on left fronto parietal region obliquely cutting the underlying bones and brain matter. (ii) 9 cm x 2 cm x bone deep on left occipital region obliquely cutting the underlying bone completely. He found the following injuries :- (1) 13 cm x 4 cm x bone deep on left fronto parietal region obliquely cutting the underlying bones and brain matter. (ii) 9 cm x 2 cm x bone deep on left occipital region obliquely cutting the underlying bone completely. (iii) 7 cm x 2 cm x bone deep on left occipital region 1/2 cm below the preceding injury with the chipping of the occipital bone. (iv) 6 cm x 2 cm x bone deep on left lateral neck upper part cutting the underlying soft tissue, the blood vessels and the second cervical vertebra partially. (v) 4 cm x 1 cm x bone deep on the back of the neck cutting the soft tissues, the blood vessels and the third cervical vertebra partially. He issued post mortem certificate, Ext. 2/2; with his opinion that the death was on account of head injuries associated with haemorrhagic shock, which could have been caused by heavy sharp cutting weapon. The Doctor thereafter commenced the autopsy on the dead body of Neelam Kumari, D4, and-he found the following injuries and noted them in the post mortem certificate, Ext. 2/3 :- (i) 12 cm x 2 cm x bone deep on left occipital parietal region cutting the underlying bones and the brain mater situated transversely. (ii) 10 cm x 2 cm x bone deep on left occipital parietal region situated vertically cutting the underlying bones and the brain matter. (iii) 7 cm x 2 cm x bone deep on left fronto parietal region obliquely cutting the underlying bones and brain matters. (iv) 14 cm x 2 cm x bone deep on right fronto parietal region cutting the underlying bones and brain matters. (v) 2 cm x 1 cm x bone deep cutting underlying bones completely. (vi) 6 cm x 2 cm x bone deep on left palm lateral side cutting the underlying bones partially. (vii) Linear cut 26 cm x skin deep on both scapular and inter-scapular region. (viii) 28 cm x skin deep linear cut on soft scapular and inter-scapular region situated 3 cm above the preceding injury. In the said certificate, he has also given his opinion that the death could have been on account of injuries sustained by the deceased, which were caused by heavy sharp cutting weapon. The Doctor finally commenced the autopsy on the dead body of D2. In the said certificate, he has also given his opinion that the death could have been on account of injuries sustained by the deceased, which were caused by heavy sharp cutting weapon. The Doctor finally commenced the autopsy on the dead body of D2. He found the following injuries :- (i) 17 cm x 3 cm x bone deep on left cheek and adjoining left lateral neck situated transversely cutting the underlying soft tissues, blood vessels and the left mandible bone completely. (ii) 16 cm x 4 cm x bone deep on left side of face and adjoining left temporo parietal region transversely cutting the underlying soft tissues, the blood vessels and the left mastoid bone chipped situated 2 cm above the preceding injury. (iii) 5 cm x 2 cm x soft tissues on left lateral neck middle part cutting the underlying soft tissues and the blood vessels partially. (iv) 10 cm x 2 cm x bone deep on left frontal region cutting the underlaying bone completely, above downwards. (v) 7 cm x 1 cm x soft tissue left shoulder front. (vi) 11 cm x 4 cm x bone deep on left fore-arm, obliquely cutting the underlying soft tissues, the blood vessels and the bone completely. (vii) 7 cm x 1 cm x bone deep on left palm medial side cutting the underlying soft tissues, bones completely. (viii) 3 cm x 1 cm x bone deep on right thumb front cutting the underlying soft tissues and the bone partially, fix) Linear cuts 9 cm x skin deep and "7 cm x skin deep on left scapular region parallelly. (x) 12 cm x 2 cm x bone deep on right fronto parietal region, antero-posterior cutting the underlying bone and the brain matter. (xi) 10 cm x 2 cm x bone deep on right fronto parieto temporal region situated obliquely cutting the underlying soft tissues, the blood vessels and the bones partially. He issued Ext. 2/1. the post mortem certificate, with his opinion that the death could have been on account of head injury associated with haemorrhagic shock due to the injuries suffered and that they could have been inflicted with a weapon like "farsa". 5. The Police Officer, who, in the meantime, was continuing his investigation, examined the witnesses and on completion of investigation, submitted his final report. 6. 5. The Police Officer, who, in the meantime, was continuing his investigation, examined the witnesses and on completion of investigation, submitted his final report. 6. The appellants were questioned under Section 313 Cr PC on incriminating circumstances appearing against them.. They denied all the incriminating circumstances. They did not examine any witness on their side. 7. The learned counsel appearing for the appellants contends that since the Doctor, PW 5, has stated in no uncertain terms that he noticed post mortem animal bites on the dead body Dl, Shiv Kumar Nath Mishra, and in view of the non-explanation of such injuries by the prosecution either through any of eye- witnesses or through the Investigating Officer, the evidence of the eye-witnesses have to be rejected and the trial Court committed an error in giving an opinion as to how Dl could have suffered animal bites, as the said opinion is the opinion of the Court not based on any acceptable legal evidence. It is his further submission that the prosecution having failed to examine the Investigating Officer, the appellants were denied an opportunity of cross-examining him to find out as to how Dl suffered animal bites, which were post mortem in nature. It is, therefore, his submission that in view of the above, the witnesses could not have been present at the scene of occurrence as claimed by them and could not have witnessed the occurrence and the complaint must have been given on the next morning only on account of the existing animosity between the parties as admittedly there was long standing dispute between the brothers, 8. We have heard Mr. Shekhar Sinha, learned A.P.P. appearing for the State, on the above contention and also perused the recorded evidence. 9. It is not in dispute that four persons have died and that all of them died on account of homicidal violence. The nature of injuries, certificates issued by the Doctor, PW 5, who conducted the autopsy, and the oral evidence of PW 5 clearly establish the said fact. The said fact is also not disputed by the appellants. We, therefore, on the medical evidence, hold that Dl to D4 died of homicidal violence, 10. It Is also not in dispute that there was ill-feeling between the first appellant and Dl on account of disputes as regards some landed property. The said fact is also not disputed by the appellants. We, therefore, on the medical evidence, hold that Dl to D4 died of homicidal violence, 10. It Is also not in dispute that there was ill-feeling between the first appellant and Dl on account of disputes as regards some landed property. It requires to be stated at this stage that motive is a double-edged weapon-motive could be a reason for the accused to attack a person and similarly, motive can also be a reason for an innocent man to be implicated in the crime. Therefore, merely because we find that there is evidence for dispute between D1 and the first appellant, we cannot hold that they were murdered by the appellants on account of the animosity unless the prosecution establishes the case against them beyond all reasonable doubt. 11. It is the case of the prosecution that the occurrence took place at about 9.00 p.m. on 26.6.1995 and the complaint was given at the police station by his brother-in-law, PW 4, at 10.30 a.m. on 27.6.1995. The said complaint was not marked by the prosecution before the Trial Judge for the reasons best known to it. They did not also give any explanation as to why the said complaint could not be marked. In this backdrop, we have to consider Section 114(g) of the Evidence Act, which contemplates that the Court may presume that evidence, which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. As we have already held that the prosecution did not give any explanation for the non-production of the said document and not. marking it as an exhibit, this Court cannot but presume the said first information statement alleged to have been given by PW 4 at 10.30 a.m. was unfavorable to the prosecution and therefore, it was not produced. 12. We will consider the evidence of PWs 1, 2, 3 and 4 PW 1 belonged to the same village-Manatu and PW 4 is the brother-in-law of D1. According to the above four witnesses, the appellants caused injuries to all the deceased persons and PW 1 and PW 3, in their, evidence, stated that they actually saw the occurrence, in that, they saw the appellants coming out of the house of the deceased and at that time, the first appellant was having an amputated hand in his hand. According to the above four witnesses, the appellants caused injuries to all the deceased persons and PW 1 and PW 3, in their, evidence, stated that they actually saw the occurrence, in that, they saw the appellants coming out of the house of the deceased and at that time, the first appellant was having an amputated hand in his hand. The evidence of PW 2 and PW 4 is to the effect that they went to the village-Manatu, where Dl was living with his family members, in order to find out the exact situation in the village, since, according to PW 4, the deceased about 15 days earlier expressed his apprehension of death at the hands of his brother and that at about 9.00 p.m. they saw the appellants coming out of the house of Dl with blood stains over their clothes and first appellant was carrying an amputated hand in his hand. Therefore, the prosecution through the above four witnesses waned to establish that they saw the appellants coming out from the house of deceased and that immediately thereafter the witnesses entered the house of the deceased only to find D1 to D4 lying with injuries all over the body and that a complaint was given at the police station on the next morning. We, therefore, have to now test other evidences available on record to find out whether the evidence of the above four witnesses can be accepted to hold that they were present and saw the occurrence as claimed by them in their evidence. P.W, 6 was examined to show that he saw them in the village near the house of the deceased but he was not an eye-witness. The question that is to be decided is whether PWs 1 to 4 could have been present in the village and witnessed the occurrence, PWs 1 to 4 categorically stated in their evidence that as they were approaching the house of D1, they saw the appellants coming out and on entering the house, they found the dead bodies and remained inside the house of Dl right through the night and according to them, all the four dead bodies were in the house. It is further evidence of PW 4 that he went to the police station and gave a complaint at 10.30 a.m. on the next day. It is further evidence of PW 4 that he went to the police station and gave a complaint at 10.30 a.m. on the next day. At this juncture, we have to make a reference to the evidence of PW 5, who conduced autopsy on the dead bodies. We have already extracted the injuries suffered by all the deceased and found that the Doctor noticed on the dead body of Dl not only five ante mortem injuries but also post mortem injuries. According to the Doctor, he found that the soft tissue of the right hand and the left hand including the fingers and the area of the decapitated wound, distal part of the left amputated upper limb were eaten away by animal. The prosecution did not explain through any of the witnesses as to how an animal caused injuries on the hands of Dl. We have already noticed that when the appellants were coming out of the house of D1, witnesses went there and thereafter remained in the house right through the night and only at 10.30 a.m. on the next day, PW 4 gave a complaint at the police station. If that be the case, no animal could have entered the house immediately after Dl to D4 were attacked by the appellants and bitten the hands of Dl, since all the witnesses had entered the house and were present in the house. But none of the witnesses whispered a word as to how Dl suffered the animal bites. The prosecution not having marked the first information statement alleged to have been given by P.W. 4 at the police station at 10.30 a.m. and the witnesses not having spoken anything about the animal bites noticed by the Doctor on the dead body of Dl and the prosecution witnesses having given evidence in no uncertain terms that they were present in the house right through the night till they gave complaint at the police station, therefore, shows that the animal bites could have been caused when the witnesses were not present. It is to be remembered at this stage that the evidence of witnesses is to the effect that when they reached to the house of D1, they heard groaning and mourning sounds emanating from the house of the deceased and saw the appellants leaving and that thereafter they entered the house and found the deceased lying with injuries on their bodies. So from their evidence, if it is accepted, it is to be deduced that they were present at the time of occurrence and entered the house immediately after the appellants left the place and found the deceased will injuries and they remained inside the house throughout the night. In the background, it is for those witnesses to have explained as to how those animal bites came to be suffered by Dl after his death since, according to the Doctor, the said animal bites were post mortem in nature. 13. In this background, we have to consider non-examination of the Investigating Officer in this case. The prosecution admittedly did not give any explanation for non-examining the Investigating Officer before the Trial Judge. If the Investigating Officer had been examined, then either he could have given evidence as to the investigation conduced by him as regards post mortem animal bites found on the hand of D1 or the appellants could have also had an opportunity of cross-examining the Investigating Officer. The prosecution, not having examined the Investigating Officer, not only did not give any details as regards the investigation conducted by the Investigating Officer as regards the animal bites found on the dead body of Dl, which were post mortem in nature, but also denied an opportunity to the appellants of cross-examining the Investigating Officer ont that crucial aspect. If the witnesses were present throughout the night in the house, then no animal could have entered into the house to bite the hand of Dl and animal bites found by the Doctor on the dead body of D1, therefore, creates a suspicion in the mind of the court as to whether the witnesses 1 to 4 could have reached the scene of occurrence when the appellants allegedly were leaving the house of the deceased and could have been present in the house throughout the night till they allegedly gave complaint at the police station which was also not marked by the prosecution. The Court has to presume that the said complaint, which was allegedly given at 10.30 a.m. on the next day, was not in tune with the present prosecution case and, therefore, it was not marked though the complainant, PW 4, was examined in Court. It is worthwhile to remember at this stage that the prosecution did not even mark the inquest reports, nor did it mark any of the requisitions sent by the Investigating Officer to the post mortem Doctor since if those documents had been marked, it would have given some insight or an idea as to how Dl could have suffered animal bites. It is an admitted case that none of the witnesses mentioned about the animal bites suffered by Dl when they were examined during investigation and they did not also whisper a word in their evidence given in Court on this crucial aspect. 14. On the above discussion, we are of the view that PWs 1 to 4 could not have reached the scene of occurrence and witnessed the occurrence as claimed by them in the Court and therefore, their evidence is highly suspicious and doubtful, specially in the background of animosity between the parties. Therefore, we do not find it safe to accept and act upon the evidence of PWs 1 to 4 to find the appellants guilty. We, therefore, set aside the order of conviction and sentence imposed upon the appellants and allow this appeal. The appellants are directed to be released from the jail custody forthwith, if not wanted in any other case(s). 15. The Death Reference is answered accordingly.