Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1027 (JHR)

Churaman Mistry v. State of Jharkhand

2018-05-09

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 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 counsel for the appellants and learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 18th January, 2010 and Order of sentence dated 19th January, 2010, passed by the learned Additional Sessions Judge F.T.C. II, Giridih, in Sessions Trial No. 454 of 2007, whereby, the appellant Indradeo @ Inder Mistry @ Indradeo Mistry has been found guilty and convicted for the offences under Sections 148, 427, 447 and 302 of the Indian Penal Code and all the other appellants have been found guilty and convicted for the offences under Sections 148, 427, 447 and 302 / 149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant Indradeo @ Inder Mistry @ Indradeo Mistry has been sentenced to undergo life imprisonment and fine of Rs.10,000/-for the offence under Section 302 of the Indian Penal Code, whereas the male appellants have been sentenced to undergo life imprisonment with fine of Rs.5,000/-each, and the female convicts have been sentenced to undergo life imprisonment with fine of Rs.1000/-each for the offence under Sections 302 / 149 of the Indian Penal Code. All the appellants have also been sentenced to simple imprisonment for a period of one year each for the offences under Sections 148 and 427 of the Indian Penal Code, and simple imprisonment for a period of one month each for the offence under Section 447 of the Indian Penal Code, and all the sentences were directed to run concurrently. 4. The case relates to double murder and the prosecution case was instituted on the basis of the fardbeyan of the informant Saraswati Devi, the wife of one of the deceased Jhari Mistry and mother of the other deceased Ganesh Mistry, recorded on 6.04.2007, at about 16:00 hours, at her village Manglu Ahar, P.S. Dumri, District Giridih, wherein she has stated that on the same day in the morning, she along with her family members were putting a wall on the vacant land in the back of their house. Two masons were engaged for putting the wall, whereas her husband Jhari Mistry was preparing the mud mortar and all the other family members were engaged in bringing the soil and water for the same. In the meantime their agnates Churaman Mistry, Balkishan Mistry @ Chetlal Mistry, Indradeo Mistry, Rohit Mistry, Damodar Mistry, all sons of late Lilo Mistry, and their sons Arjun Mistry, Rameshwar Mistry, Dinesh Mistry, Ramesh Mistry, Most. Pyari, wife of late Lilo Mistry, and her daughters-in-law, Hemia Devi, Parvati Devi, Reena Devi, Jageshwari Devi and Renu Devi, came there variously armed and they surrounded them. All the male members were armed with sword and farsa whereas the female members were armed with lathi. The male members started assaulting her husband Jhari Mistry and her son Ganesh Mistry by sharp cutting weapons, due to which her husband died at the spot. Later her son also died at the spot itself. Before dying, her husband had tried to save himself by entering into the house, but he was chased by the accused persons up to the house and assaulted to death and his dead body was brought near the wall being constructed. Most. Pyari, along with her daughters-in-law, demolished the wall that was being constructed, and also tried to assault the informant and other members of her family, but they saved themselves. She has stated that the occurrence had taken place due to the land dispute between the parties for which there was a suit in the competent Court, which was decreed in favour of the informant's family, and thereafter they had started constructing the wall on the land, upon which all the named accused persons came armed with deadly weapons and in prosecution of their common object had committed the murder of her husband and son, and committed mischief by destroying her house under construction. On the basis of the fardbeyan of the informant, Dumri P.S. Case No.18 of 2007, corresponding to G.R. No.737 of 2007, was instituted for the offences under Sections 147, 148, 149, 447, 302, 427 and 323 of the Indian Penal Code, against the named accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in the case against the accused appellants, who were either arrested or had surrendered before the Court, keeping the investigation pending against the absconding accused. 5. After investigation, the police submitted the charge-sheet in the case against the accused appellants, who were either arrested or had surrendered before the Court, keeping the investigation pending against the absconding accused. 5. Upon commitment of the case to the Court of Session, charge was framed against the accused Indradeo Mistry, Rohit Mistry and Churaman Mistry for the offence under Section 302 of the Indian Penal Code, and against all the accused persons for the offences under Sections 147, 148, 447, 427 and 302 / 149 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, six witnesses were examined by the prosecution, including the I.O. and the Doctor who had conducted the post-mortem examination on the dead bodies of both the deceased. Apart from them, two Court witnesses were also examined by the prosecution. 6. P.W.-4 is Most. Saraswati, the informant in the case and the wife of the deceased Jhari Mistry and mother of the deceased Ganesh Mistry. This witness has stated that the occurrence had taken place more than one year ago at about 10:00 A.M. All the family members were engaged in construction of the wall, when the accused persons, named by her in her evidence, including the appellants, came there. Balkishun, Damodar, Churaman and Indradeo were armed with sword and others were armed with lathi. They surrounded them and Balkishun assaulted her husband by sword on his head causing injury on the brain material, due to which he fell down. Damodar also assaulted on his legs and Churaman assaulted her son by sword on his head. Indradeo also assaulted by sword on his hand and both the deceased fell down at the spot, and when they tried to save them, they were pushed back. Both the deceased died. All the female accused persons started demolishing the wall and the wife of Nilu Mistry also assaulted her husband by lathi. She has stated that her daughter Manju was also assaulted by one of the lady accused. She has further stated that the police arrived there and recorded her fardbeyan, upon which she had put her thumb impression. She has identified the accused persons present in the Court and has claimed to identify the other accused also. She has stated that her daughter Manju was also assaulted by one of the lady accused. She has further stated that the police arrived there and recorded her fardbeyan, upon which she had put her thumb impression. She has identified the accused persons present in the Court and has claimed to identify the other accused also. This witness was put to extensive cross-examination, in which she has stated that her statement was recorded twice by the police, and she had given the statement before the police as to which accused was armed with what weapon. She has also stated that she had gone to the Police Station and had met the police. Though she has been put to extensive cross-examination, but there is nothing further of much importance. She has denied the suggestion to have given false evidence. 7. P.W.-1 Basanti Devi, P.W.-2 Ashok Sharma and P.W.-3 Manju Kumari, all are the family members of the informant and the deceased and they have also fully supported the prosecution case as stated by the informant, naming all the accused persons, including these appellants, and stating that they came there armed with sword and lathi, and assaulted them, in which two persons were assaulted to death at the spot. These witnesses have also stated that Balkishun and Damodar had assaulted the deceased Jhari Mistry by sword and Churaman and Indradeo had assaulted Ganesh Mistry by sword causing bleeding injuries on them, due to which they died at the spot, and other accused persons had assaulted them and the accused persons had also demolished the wall. They have also identified the accused persons present in the Court. Though these witnesses have been put to extensive cross-examination, but there appears nothing of much importance in their cross-examination, so as to discredit their testimony on the point that all the accused persons were forming an unlawful assembly armed with deadly weapons, and committed the offence in which two persons were assaulted to death at the spot, though their attentions were towards their statements before the police, showing that they had not made specific allegations of assault. 8. P.W.-5 is Dr. Rajesh Kumar, who had conducted the post-mortem examinations on the dead bodies of both the deceased on 07.04.2007. 8. P.W.-5 is Dr. Rajesh Kumar, who had conducted the post-mortem examinations on the dead bodies of both the deceased on 07.04.2007. On the dead body of the deceased Ganesh, aged about 17 years, this witness had found the following injuries:- External Injuries :- (i) Incised wound on right forearm 7” x ¼” cutting soft tissue bones and blood vessels. (ii) Incised wound on middle of skull 6” x ¼” x bone deep with fracture of skull bones. On dissection :Skull bone was fractured. Brain-NAD; Neck-Subcutaneous tissue-N.A.D; Hyoid bone-intact; Larynx and trachea-NAD; Chest ribs-intact; Both lungs-NAD; Heart-blood in right chamber only; Abdomen-Liver, spleen and both kidneys-NAD; Stomach-empty and no smell inside; U.B. was empty; Intestine-NAD. This witness has stated that all the injuries were ante-mortem in nature caused by sharp cutting weapon and cause of death was shock and hemorrhage as a result of ante-mortem injuries. He has also stated that the injuries were sufficient in ordinary course of nature to cause death. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.2. On the same day, this witness had conducted the post-mortem examination on the dead body of Jhari Mistry, aged about 53 years, and had found the following injuries on him:- External Injuries:- (i) Fracture of skull bone exposing the brain matter with laceration of brain matter. (ii) On right wrist incised wound 6”x ¼” cutting soft tissue bone and blood vessels. (iii) Incised wound over anterior portion of left thigh 8” x ¼” x bone deep. (iv) Incised wound over the posterior portion of left thigh 10” x ¼” x cutting muscles and blood vessels. (v) Incised wound right thigh laterally 6” x ¼” x bone deep. (vi) Incised wound over left forearm distally 5” x ¼” x bone deep. On dissection :Skull bone fractured; brain matter lacerated; blood clot found inside cranium; Neck-Hyoid bone intact, larynx and trachea NAD; Chest-ribs intact; both lungs-NAD; Heart-blood found in right chamber only; Abdomen-liver, spleen and both kidneys NAD; Stomach contained partially digested food without any peculiar smell; Mucosa membrane not congested; Intestine-NAD; U.B. empty. He has stated that the injuries found on this deceased were also ante-mortem in nature, caused by sharp cutting weapon and the cause of death was shock and hemorrhage due to the above ante-mortem injuries which were sufficient to cause death in ordinary course of nature. He has stated that the injuries found on this deceased were also ante-mortem in nature, caused by sharp cutting weapon and the cause of death was shock and hemorrhage due to the above ante-mortem injuries which were sufficient to cause death in ordinary course of nature. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.2/1. 9. P.W.-6 is Ratibhan Singh, the I.O. of the case. This witness has stated that on 06.04.2007 he was posted as Officer-Incharge of Dumri Police Station. At about 03:00 P.M. there was a telephonic message that some person was murdered in village Manglu Ahar. He made the sanha entry about the information and along with the police party, including one S.I. R.K. Dubey, proceeded towards the place of occurrence, where he recorded the fardbeyan of Saraswati Devi. He has proved the fardbeyan to be in his pen and signature, which was marked Ext.3. He has also proved the formal F.I.R., which was marked Ext.4. He has stated that he had recorded the restatement of the informant and the inquest reports of both the deceased Jhari Mistry and Ganesh were prepared, which also he has proved and the same were marked Exts.5 and 6 respectively. He inspected the place of occurrence which was the vacant land measuring about 50' x 60' between the house of the informant and the accused Balkishun Mistry. He found the newly dug foundation and newly constructed wall about 3 feet high, which was also demolished. This was the place of occurrence, where he found the dead bodies of both the deceased and there was a lot of blood. He has also stated that there was blood stains from the place of occurrence up to the house of the deceased. He recorded the statements of the witnesses, received the post-mortem reports and submitted the charge-sheet against the accused persons. In his cross-examination, this witness has stated that no one had come to the Police Station for giving information and it was incorrect to say that the informant had gone up to the Police Station. He stated that there was a telephonic information only for which the sanha entry was made. In his cross-examination, this witness has stated that no one had come to the Police Station for giving information and it was incorrect to say that the informant had gone up to the Police Station. He stated that there was a telephonic information only for which the sanha entry was made. They reached the place of occurrence in about half an hour and previously, R.K. Dwivedi was given the charge of investigation of the case, but in an insurgency operation, in which the police vehicle was blown up by the extremists, the first I.O. became blind, and as such, this witness was given the charge of investigation, and he started recording the dairy from 13.05.2007. This witness has stated that as the statements of the witnesses were taken in his presence, he had himself recorded the fardbeyan, and he recorded the statements of the witnesses in the case diary by memory. Some discrepancies in the statements of the witnesses have been taken from this I.O., but they are not of much importance, in as much as, all the witness, even according to the evidence of the I.O., are the eye-witness to the occurrence, supporting the prosecution case, though making omnibus allegation against all the accused. He has denied the suggestion of making faulty investigation. 10. Two witnesses were examined as Court witnesses, namely, C.W.-1 Raju Rana and C.W.-2 Jitendra Sharma, who are the witnesses to the inquest report of the dead body of the deceased Ganesh and they had proved their signatures on the inquest report, which were marked Exts. 6/1 and 6/2 respectively. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein these accused appellants have denied the evidence against them. No evidence was adduced in defence by the accused persons. On the basis of the evidence on record, the Trial Court below has found the appellants guilty, and convicted and sentenced them for the offences, as aforesaid. 12. Learned counsel for the appellants has 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 witnesses are only the interested witnesses being the family members of the deceased and there is admitted land dispute between the parties, due to which the false implication of the accused persons cannot be ruled out. It is also submitted by learned counsel that in the F.I.R. there is only omnibus allegation against all the accused persons of assaulting both the deceased and committing mischief demolishing the wall of the informant, but in their evidence, the witnesses have tried to make specific allegation of assault against some of the appellants which shows that some improvements were made on their previous statements made before the police and as such, the witnesses are not trustworthy and their evidence cannot be relied upon. Learned counsel further submitted that some of the eye witnesses, who were admittedly present there, have not been examined by the prosecution and as such, the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. On these grounds, learned counsel has submitted that the appellants were entitled at least to the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that all the material witnesses are eye witness to the occurrence and they fully supported the prosecution case and their ocular evidence is also corroborated by the medical evidence of P.W.-5 Dr. Rajesh Kumar and the post-mortem reports proved by him as Exts. 2 and 2/1. Learned counsel accordingly, submitted that 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 both the parties were agnates and there is land dispute between the parties. It is stated in the F.I.R. that there was a suit for the land dispute between the parties in which there was a decree in favour of the informant's family. Neither the prosecution, nor the defence has brought any documentary evidence with regard to the land dispute. P.W.-1 Basanti Devi, P.W.-2 Ashok Sharma, P.W.-3 Manju Kumari and P.W.-4 Most. It is stated in the F.I.R. that there was a suit for the land dispute between the parties in which there was a decree in favour of the informant's family. Neither the prosecution, nor the defence has brought any documentary evidence with regard to the land dispute. P.W.-1 Basanti Devi, P.W.-2 Ashok Sharma, P.W.-3 Manju Kumari and P.W.-4 Most. Saraswati, the informant and the wife and mother of both the deceased, are definitely the eye witness to the occurrence, and they have fully supported the prosecution case naming all the accused appellants, stating that they along with the other accused persons, who were all belonging to the same family, came variously armed at the place of occurrence, forming an unlawful assembly and no sooner they arrived, they started assaulting both the deceased by sharp cutting weapons, causing their death at the spot and they also committed mischief by demolishing the wall. Though in the F.I.R. there is omnibus allegation against all the appellants, but it is a fact that material witnesses, in their evidence before the Court, have stated that particular accused was armed with particular weapon and the particular accused had made assault upon a particular part of the deceased persons. Sans this development made in the evidence of the witnesses, it is apparent from the evidence of all the material witnesses as also the evidence of the I.O. P.W.-6 Ratibhan Singh, that the material witnesses were the eye witness to the occurrence. The fact however, remains that since the statements of the witnesses were recorded later by memory, due to the original I.O., losing his eyes in insurgency operation, the specific details might not have been recorded by the I.O. The fact also remains that the evidences of all the material witnesses clearly show that all the accused persons forming unlawful assembly, armed with deadly weapons, arrived at the place of occurrence, and had committed the offence in furtherance of the common object of the unlawful assembly, in which two persons were assaulted to death at the spot. Though it is submitted by learned counsel for the appellants that the other eye witnesses have not been examined in the case, but we find that one such witness, Jitendra Sharma, has been examined as Court witness, who has proved his signature on the inquest report of the dead body of one of the deceased. Though it is submitted by learned counsel for the appellants that the other eye witnesses have not been examined in the case, but we find that one such witness, Jitendra Sharma, has been examined as Court witness, who has proved his signature on the inquest report of the dead body of one of the deceased. The eye witnesses are the natural witnesses to the occurrence, as the offence was committed on the vacant portion of their house. The manner in which the offence was committed, i.e., no sooner the accused persons belonging to the same family, arrived, they started assaulting both the deceased by sharp cutting weapons, causing their death at the spot and they also committed mischief by demolishing the wall, clearly shows that all the accused persons, including the female accuseds were sharing the common object and the offences were committed in the prosecution of the common object of all the members of that unlawful assembly. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to bring home the charges against all the accused appellants beyond all reasonable doubts. Though the appellant Indradeo @ Inder Mistry @ Indradeo Mistry has been convicted for the offence under Section 302 of the Indian Penal Code, but even this appellant ought to have been convicted and sentenced for the offence under Sections 302 / 149 of the Indian Penal Code, as in the case of all the other accused appellants. 15. Accordingly, the impugned Judgment of conviction dated 18.01.2010, passed in S.T. No.454 of 2007, is modified only to the extent that the appellant Indradeo @ Inder Mistry @ Indradeo Mistry is also found guilty and convicted for the offence under Sections 302 / 149 of the Indian Penal Code. There shall be, however, be no modification in the Order of sentence passed by the Trial Court below. With this modification in the Judgment, we hereby, affirm the impugned Judgment of conviction dated 18.01.2010 and Order of sentence dated 19.01.2010 passed by the learned Additional Sessions Judge F.T.C. II, Giridih, in Sessions Trial No. 454 of 2007. The appellant No.2 Indradeo @ Inder Mistry @ Indradeo Mistry in Cr. Appeal (D.B.) No. 267 of 2010, is in custody undergoing the sentence. The appellant No.2 Indradeo @ Inder Mistry @ Indradeo Mistry in Cr. Appeal (D.B.) No. 267 of 2010, is in custody undergoing the sentence. All the other appellants, namely, Churaman Mistry, Rohit Mistry, Arjun Mistry, Piyari Mosammat, Jageshwari Devi, Parvatia Devi and Renu Devi are on bail. Their bails are cancelled and they are directed to surrender in the Court below forthwith, to serve out the sentence passed by the Trial Court below. The Trial Court below is also directed to forthwith issue the processes compelling the surrender / production of these accused appellants for serving out the sentence. 16. We find that P.W.-4 Most. Saraswati is the victim of the crime, who has lost her husband as also her son in the occurrence, and she deserves to be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard in consultation with the concerned District Legal Services Authority, so that Most. Saraswati is duly compensated 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. 17. We find no merit in both these appeals, which are accordingly, dismissed with the modification as above. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.