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2015 DIGILAW 809 (JHR)

Raj Kumar Kapardar v. State of Jharkhand

2015-07-15

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : This appeal is directed against the judgment of conviction dated 28th April, 2006 and order of sentence dated 4th May, 2006 passed by the then learned Additional Sessions Judge-cum- F.T.C.II, Bermo at Tenughat in S.T. No.300 of 2003/S.T.R. 07 of 2006, whereby and whereunder the court, having found the appellants guilty for committing murder of the deceased -Budhan Mahto, convicted them for the offence punishable under Sections 302/34 of Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with default clause. 2. The case of the prosecution is that on the day of occurrence i.e. on 05.03.2003 at about 9.00 a.m. while the informant was cleaning utensil at the well, she saw the appellant-Raj Kumar Kapardar, taking Budhan Mahto to his house where her son-Budhan Mahto asked the appellant-Raj Kumar Kapardar as to why he is fighting with his brother. Upon it, he lost his temper and asked his wife- appellant No.2-Gupta Devi to bring a Farsa, as Budhan Mahto is favouring his brother with whom the appellant-Raj Kumar Kapardar was not having good relation. The appellant No.2 Gupta Devi brought a Farsa and gave it to the appellant No.1-Raj Kumar Kapardar, who gave Farsa blow over the neck of Budhan Mahto, as a result of which, he died there instantaneously. 3. At about 12.10 hours when the Officer-in-Charge Kasmar Police Station Awadhesh Kumar came to the house of the informant, he recorded the fardbeyan (Ext. 7) of the informant-P.W. 9-Sulochana Devi, who narrated in the same manner, as has been stated above. On the basis of which, a formal FIR (Ext. 6) was drawn. When the I.O. took up the investigation of the case, he held inquest on the dead-body and prepared an inquest report (Ext.3). Thereupon, the dead body was sent for postmortem examination, which was conducted by Dr. Prabhu Narayan Jha -P.W. 8. On holding autopsy, he did find the following injuries on the person of the deceased:- Sharp cut injury 5' X 2' X Vertebra deep on the left side of the neck. The Doctor issued post mortem examination report (Ext.5) with an opinion that the death was caused due to shock and haemorrhage on account of the aforesaid injury. 4. Meanwhile, the I.O. recorded the statements of the witnesses. The Doctor issued post mortem examination report (Ext.5) with an opinion that the death was caused due to shock and haemorrhage on account of the aforesaid injury. 4. Meanwhile, the I.O. recorded the statements of the witnesses. On completion of the investigation, charge-sheet was submitted against the appellants upon which cognizance of the offence was taken. 5. When the case was committed to the court of Sessions, the appellants were put on trial, during which, prosecution examined altogether 10 witnesses. Of them, the informant-P.W.9-Sulochana Devi and P.W.3-Charu Devi are the eye witnesses, who have testified that while they were cleaning utensil at the well, they saw the appellant No.1 Raj Kumar Kapardar taking Budhan Mahto (deceased) to his house where the deceased, when asked the appellant Raj Kumar Kapardar as to why, he is fighting with his brother, the appellant-Raj Kumar Kapardar asked his wife Gupta Devi (appellant No.2) to bring Farsa, who brought Farsa and gave it to Raj Kumar Kapardar and then he assaulted over the neck of the deceased, as a result of which, the deceased-Budhan Mahto died. They have also testified that since the deceased was friend of the brother of the appellant No.1 Raj Kumar Kapardar with whom he was not keeping good relation, the appellant No.1 killed the deceased. P.W.4-Jitendra Pahan, P.W.5-Ganesh Mahto, who were present at the same well, did depose that they saw the accused fleeing from the house with Farsa over which blood mark was there. P.W.6-Ram Bhajan Kapardar and P.W.7 Aghnu Sao are the witnesses to the seizure of blood from place of occurrence. Apart from that P.W.1-Sudharshan Tiwari, P.W.2-Govind Sao are the witnesses, who have testified that they saw the appellants fleeing from the place of occurrence. 6. After closure of the prosecution case, when incriminating circumstances appearing against the appellants were put under Section 313 of Cr.P.C., they simply denied. Thereupon, two defence witnesses were examined at the instance of the appellant Gupta Devi whereby they did testify that on the date of occurrence, the appellant-Gupta Devi had gone to her parents house and when information was given to her that her husband has been taken into custody by the police, she came to her in-laws' place. 7. The trial court, having placed reliance on the testimonies of the eye witnesses- P.Ws. 7. The trial court, having placed reliance on the testimonies of the eye witnesses- P.Ws. 3 and 9 (informant) and also other witnesses such P.Ws-1, 2, 4 and 5, did find the appellants guilty for committing murder of Budhan Mahto. At the same time, the court discarded the testimonies of D.Ws.1 and 2. Accordingly, both the appellants were convicted and sentenced, as aforesaid, which is under challenge. 8. Mr. Pramod Kumar, learned counsel appearing for the appellants submits that the appellant-Raj Kumar Kapardar, though has been alleged to have given Farsa blow over the neck, causing injury, resulting into his death, but he could not have any intention to commit murder of the deceased, which would be evident from the fact that only one blow was given, but the court did not consider this aspect of the matter and hence, committed illegality in recording the judgment of conviction and order of sentence for the offence punishable under Section 302/34 of the Indian Penal Code. Further it was submitted that so far appellant No.2 Gupta Devi is concerned, she has never been alleged to have committed any overtact in the commission of the offence, except that she had brought Farsa, which was used by her husband (appellant No.1-Raj Kumar Kapardar) for committing murder of the deceased, but admittedly, she did not even touch the dead body of the deceased and thereby, she may not have any mens rea to commit murder of the deceased. 9. As against this, Mr. Mukesh Kumar, learned counsel appearing for the State submits that the evidences are so clinching that the appellant No.1 Raj Kumar Kapardar cannot escape from the liability of committing murder of the deceased. In this regard, it was pointed out that P.W.3 and P.W.9 are the eye witnesses to the entire occurrence i.e. to say taking the deceased by the appellant No.1 to his house and then asking his wife (appellant No.2) to bring Farsa and when Farsa was brought, the appellant-Raj Kumar Kapardar gave Farsa blow over the neck of the deceased, causing injury, resulting into his death. So far appellant No.2-Gupta Devi is concerned, the witnesses are consistent that it was the appellant No.2, who had brought Farsa and gave it to her husband (Raj Kumar Kapardar), who then used that Farsa in killing the deceased and thereby, common intention was there on the part of the appellant No.2-Gupta Devi also and under the circumstances, the judgment of conviction and the order of sentence never warrants to be interfered with. 10. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that as per the testimonies of P.W.9-Sulochana Devi and also P.W.3-Charu Devi, when they were cleaning utensil at the well, which is nearer to the house of the appellants also, they saw the appellant No.1, taking Budhan Mahto (deceased) to his house and when Budhan Mahto (deceased) asked Raj Kumar Kapardar as to why he is fighting with his brother, the appellant No.1-Raj Kumar Kapardar asked the appellant No.1(Gupta Devi) to bring Farsa, who brought it and gave it to Raj Kumar Kapardar and then Raj Kumar Kapardar gave fatal blow over the neck of the deceased, as a result of which, deceased died. Both the witnesses have testified that the room where occurrence took place was visible from the well and that it was quite nearer to place of occurrence. Nothing has been elicited by the defence to make a dent over the credibility of the witnesses. In such event, we do find both of them fully trustworthy. Further, we do find that the appellant No.1 was fleeing away, he was seen by the P.W.1-Sudharshan Tiwari, P.W.2-Govind Sao, P.W.4-Jitendra Pahan and P.W.5-Ganesh Mahto and when they came to the house of Raj Kumar Kapardar, they found the dead body lying over there. Apart from them, P.Ws. 2, 3, 4 and 5 have also testified that they had seen the appellant No.1- Raj Kumar Kapardar, taking the deceased to his house. The testimonies of P.W.3 and 9 fully get corroboration from medical evidence. 11. Thus, the prosecution has been able to establish beyond any reasonable doubt that it was the appellant No.1-Raj Kumar Kapardar, who committed murder of the deceased-Budhan Mahto. 12. The testimonies of P.W.3 and 9 fully get corroboration from medical evidence. 11. Thus, the prosecution has been able to establish beyond any reasonable doubt that it was the appellant No.1-Raj Kumar Kapardar, who committed murder of the deceased-Budhan Mahto. 12. However, submission, which has been advanced on behalf of the appellant- Raj Kumar Kapardar, is that since only one blow has been given over the neck of the deceased, the appellant No.1-Raj Kumar Kapardar cannot be said to have had any intention to commit murder. In the facts and circumstances appearing in the case, we do not find any substance in the submission advanced on behalf of the appellant No.1-Raj Kumar Kapardar. Admittedly, the injury caused to the deceased was sufficient to cause death. That apart, it has come also that the deceased was friend of Hareram, brother of the appellant No.1-Raj Kumar Kapardar, who was not keeping good relation with him and on account of that, the appellant No.1 seems to have been carrying grudge against the deceased and, therefore, the appellant No.1-Raj Kumar Kapardar took the deceased with him to his house where he assaulted over the neck with Farsa, resulting into his death. 13. Under the circumstances, one can easily come to the conclusion that the appellant No.1 with all intention to commit murder, assaulted the deceased with Farsa. Accordingly, we do find that the trial court has rightly convicted the appellant No.1-Raj Kumar Kapardar for committing murder of the deceased-Budhan Mahto. 14. So far appellant No.2-Gupta Devi is concerned, she, as per the evidence of the witnesses, simply brought a Farsa, on being asked by her husband-Raj Kumar Kapardar and gave it to her husband, which was used by him for committing murder of the deceased. Thus, actus reus appears to be there on her part. Nothing has come on record even to show that she had had any mens rea to commit murder of the deceased, rather it appears to be otherwise where she appears to be bereft of guilty mind, as she never left home after commission of murder whereas her husband had fled from there. 15. In such event when actus reus was there but mens rea was absent, one cannot be said to have shared the common intention. In this respect, we may refer to a decision rendered in a case of Surendra Chauhan Vs. 15. In such event when actus reus was there but mens rea was absent, one cannot be said to have shared the common intention. In this respect, we may refer to a decision rendered in a case of Surendra Chauhan Vs. State of M.P. { (2000) 4 SCC 110 }, wherein at paragraph-11 it has been held as under:- “11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every cases, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” 16. In that event, the appellant No.2-Gupta Devi cannot be said to have shared common intention. Accordingly, the judgment of conviction and the order of sentence passed against her appears to be bad and hence, it is set aside and the appellant No.2-Gupta Devi is, hereby, acquitted of the charge levelled against her. 17. In that event, the appellant No.2-Gupta Devi cannot be said to have shared common intention. Accordingly, the judgment of conviction and the order of sentence passed against her appears to be bad and hence, it is set aside and the appellant No.2-Gupta Devi is, hereby, acquitted of the charge levelled against her. 17. So far appellant-No.1 Raj Kumar Kapardar is concerned, his conviction under Section 302/34 of the Indian Penal Code, in the facts and circumstances stated above, is converted to Section 302 of the Indian Penal Code. The sentence awarded against him shall remain intact. 18. Accordingly, this appeal is allowed but in part. Appeal allowed.