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2018 DIGILAW 119 (JHR)

Nanhu Mehta v. State of Jharkhand

2018-01-15

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned senior counsel for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 9.2.2009 and Order of sentence dated 10.2.2009, passed by the learned Sessions Judge, Garhwa, in S.T No.10 of 2006, whereby, the sole accused has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the accused has been sentenced to undergo R.I for life and fine of Rs.5000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Santosh Kumar Mehta, the son of the deceased, Ramesh Mehta, recorded on 20.6.2005 at about 8 A.M at his house in village Raja Ghatohuan, P.S. Manjhion, District Garhwa. According to the fardbeyan, in the previous night, the deceased was sleeping on his verandah and the informant Santosh Kumar Mehta was also sleeping nearby, on another cot. At about 1.30 A.M in the night the informant woke up on some sound and he saw that the accused Nanhu Mehta, who is also an agnate of the informant and uncle in relation, was cutting his father by a garasa, whereupon he raised the alarm, and he was also threatened by the accused. Upon the alarm raised by the informant, his uncle Prasad Mehta came there and the accused fled away along-with the garasa. Thereafter other persons also assembled at the place of occurrence and saw the dead body of the deceased with his neck slit, lying in the pool of blood on the cot. His father was sleeping at the time of assault, and he could not even raise his voice, while he was killed. The informant has also stated that there was trail of blood from the place of occurrence to the house of the accused. It is also stated in the fardbeyan that the occurrence had taken place due to some money dispute between the parties which related to drawing toddy, due to which there was some altercation between them, and the accused had also threatened to take revenge. It is also stated in the fardbeyan that the occurrence had taken place due to some money dispute between the parties which related to drawing toddy, due to which there was some altercation between them, and the accused had also threatened to take revenge. Claiming that the accused Nanhu Mehta had committed the murder of his father while he was sleeping in the night, the fardbeyan was given by the informant Santosh Kumar Mehta, on the basis of which Manjhion (Kandi O.P.) P.S. Case No. 67 of 2005, corresponding to G.R. No. 512 of 2005, was instituted for the offence under Section 302 of the Indian Penal Code, against the accused Nanhu Mehta and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trail. In Course of trial the prosecution has examined 11 witnesses including the Investigating Officers 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. 5. P.W.-2 Santosh Kumar Mehta is the informant in the case. This witness has supported the prosecution case and has stated that the occurrence had taken place about ten months ago in the night of a Sunday, at about 1.30 A.M. He was sleeping near his father on the verandah of the house. He woke up on a sound and saw that his uncle Nanhu Mehta was cutting his father by garasa. On the alarm raised by him, his uncle Prasad Mehta came there and the accused fled away. His father died at the spot. Other persons of the village also assembled there. This witness has stated that the occurrence had taken place due to dispute of money for toddy tree, due to which there was some altercation between the accused and his father and the accused had threatened to take the revenge. He has stated that at about 8:00 A.M in the morning, the police visited the place of occurrence and recorded his fardbeyan, whereupon he put his signature. He has identified his signature on the fardbeyan, which was marked Exhibit-2. He has stated that at about 8:00 A.M in the morning, the police visited the place of occurrence and recorded his fardbeyan, whereupon he put his signature. He has identified his signature on the fardbeyan, which was marked Exhibit-2. He has also stated that he is differently abled (viklang). He has identified the accused in the Court. In his cross examination, this witness has stated that the house of the accused is situated adjacent to his house, separated only by a wall and the house of Prasad Mehta is situated at a distance of about 100 feet. This witness has also stated that the night of occurrence was a moonlit night and he had identified the accused in the moon light. His mother was sleeping inside the house. This witness has also stated that the accused Nanhu Mehta had fled away after the arrival of Prasad Mehta and thereafter the other witnesses had arrived at the place of occurrence. He has also stated that the police had seized the blood stained soil from the place of occurrence. He has stated that he had not chased the accused, rather the people had kept the house of the accused surrounded and the police had arrested the accused in presence of the witnesses. He has denied the knowledge that there was a rape case upon this witness and his father, due to which there was previous enmity with one Bhagru Chamar. He has denied the suggestion of falsely implicating the accused. 6. P.W.-3 is Prasad Mehta, who has also supported the prosecution case, stating that the occurrence had taken place in the night at about 1.30 A.M., while he was in his house. He heard the alarm raised by the Santosh, whereupon he went to his house and saw the accused Nanhu Mehta fleeing away from the place of occurrence with a garasa. He also saw that neck of Ramesh Mehta was cut, bleeding profusely, but Ramesh Mehta was still in pains and soon thereafter he died. This witness has also stated that right from the cot of Ramesh Mehta up to the house of Nanhu Mehta there was trail of blood and there were blood spots even on the door and the wall of the accused. He has also stated that there was some money dispute between the accused and the deceased due to toddy tree. This witness has also stated that right from the cot of Ramesh Mehta up to the house of Nanhu Mehta there was trail of blood and there were blood spots even on the door and the wall of the accused. He has also stated that there was some money dispute between the accused and the deceased due to toddy tree. He has also identified the accused in the Court. In his cross-examination, this witness has stated that the fact of the earlier altercation between the accused and the deceased was informed to him by his own son. He has reiterated in his cross-examination that when he reached the place of occurrence he saw the accused Nanhu Mehta fleeing away with the garasa. He has stated that garasa was not recovered in his presence and he has also stated that his house is situated at a distance of about 100 yards. He has stated that the inquest-report of the dead body was prepared in his presence and there were injuries on the shoulder and the neck of the deceased. He has admitted that a rape case was filed by Bhagru Chamar upon the deceased and he has denied the suggestion that due to said rape case Bhagru Chamar, his wife and his daughter-in-law had committed the murder of the deceased. 7. P.W.-1 Chandradeo Mehta, P.W.-4 Rajeshwar Mehta, P.W.-5 Kameshwar Mehta and P.W.-8, Chandramani Kuer, the mother of the informant and the wife of the deceased, are the other witnesses who had reached the place of occurrence upon the alarm raised by the informant and they have stated that when they reached the place of occurrence, they saw the deceased dead with bleeding injuries and they were informed by the informant Santosh Kumar Mehta that accused Nanhu Mehta had committed the murder of the deceased. They had also seen trail of the blood from the place of occurrence up to the house of the deceased. However, P.W.-8 Chandramani Kuer was not cross-examined by the defence, and the said witness was discharged. They had also seen trail of the blood from the place of occurrence up to the house of the deceased. However, P.W.-8 Chandramani Kuer was not cross-examined by the defence, and the said witness was discharged. P.W.-1 Chandradeo Mehta has also stated that the police had seized the blood stained soil from the place of occurrence and had prepared the seizure list, upon which he had put his signature and the police had also prepared the inquest-report of the dead body on which also he had put his signature and he has identified both his signatures, which were marked as Ext.1 and 1/1 respectively. There is nothing in the cross-examination of P.Ws. 1, 4 and 5 to discredit their testimony. 8. P.W.-6 Kanhai Mehta is only the witness to the seizure list relating to the seizure of the blood stained soil from the place of occurrence, on which he has proved his signature and the same was marked Ext. 1/3. In his cross-examination it has been taken by the defence that he was informed at the place of occurrence that the accused had committed the murder of the deceased. 9. P.W.-7 Sanjay Mehta has stated that he had reached the place of occurrence along with the police in the morning and the informant had informed the police that Nanhu Mehta had committed the murder of his father, whereupon he also came to know about the occurrence. He also went along with the police up to the house of Nanhu Mehta, and found the trial of blood from the place of occurrence to the house of Nanhu Mehta. He also saw the dead body of the deceased with his neck slit. However, this witness was also not cross-examined by the defence, and he was discharged. 10. P.W.-10 is Dr. Kaushal Kishore Sahgal, who had conducted the post-mortem examination on the dead body of deceased on 20.06.2005, and had found following ante-mortem injuries on the dead body:- (i). Incised wound 4" x 3" x 2" on the right side of neck, cutting skin, muscles of neck, blood vessels and trachea lacerated. Blood clot found in the wound and trachea. (ii). Incised wound on the tip of the right shoulder 1 " x " x skin deep. This witness has stated that both the injuries were ante-mortem in nature and caused by sharp cutting object. Blood clot found in the wound and trachea. (ii). Incised wound on the tip of the right shoulder 1 " x " x skin deep. This witness has stated that both the injuries were ante-mortem in nature and caused by sharp cutting object. The death was caused due to shock and hemorrhage due to injury No.(i). He has identified the post-mortem report to be in his pen and signature, which was marked Ext.-7. In his cross-examination, this witness has stated that the assault was made on the deceased from the front side. 11. P.W.-9 is Shankar Kumar, the first I.O. in the case. This witness has stated that he was informed by the chaukidar Yogendra Ram that Ramesh Mehta was murdered in village Raja Ghatohuan by someone. He made the sanha entry of the said information and came to the place of occurrence, where he recorded the fardbeyan of Santosh Kumar, on which he had put his signature. He also prepared the inquest-report of the dead body of the deceased and sent the dead body for post-mortem examination. He recorded the statements of the witnesses and inspected the place of occurrence and he has given the details of the place of occurrence. He has stated that he found the dead body in the sleeping position with cut injury on the neck and he also saw the trail of blood from the place of occurrence up to the house of the accused. He also found the blood stains at the door and the wall of the house of the accused. He had arrested the accused from his house and thereafter he handed over the charge of investigation on 25.6.2005 to the other Investigating Officer. He has proved the fardbeyan, the formal F.I.R., the seizure list and the inquest-report, which were marked Exhibits 3 to 7 respectively. This witness was also not cross-examined by the defence, as no one turned up to cross-examine him, and he was also discharged. 12. P.W.-11 Shamshad Alam Shansi is the other Investigating Officer of the case, who took over the charge of investigation on 25.06.2005 from the previous I.O. He had also visited the place of occurrence and has given the details of the place of occurrence. He also recorded the statements of some witnesses and upon getting the post-mortem report, he submitted the charge-sheet in the case. He also recorded the statements of some witnesses and upon getting the post-mortem report, he submitted the charge-sheet in the case. In his cross-examination, this witness has stated that he had visited the place of occurrence after six days of the occurrence, and by that time the place of occurrence was not smeared. He has stated that the blood stained soil was already seized by the previous Investigating Officer. He searched the garasa, but he could not recover it. He had not arrested the accused. In his cross-examination this witness has also stated that the place of occurrence could be approached by people from three sides. He has denied the suggestion to have made faulty investigation. 13. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused has denied the evidence against him. On the basis of the evidence on record the accused has been found guilty, convicted and sentenced by the Trial Court below, as aforesaid. 14. Learned senior counsel for the appellant has submitted that the impugned Judgment cannot be sustained in the eyes of law, in as much as three witnesses, P.W. 7 Sanjay Mehta, P.W.-8 Chandramani Kuer, wife of the deceased and P.W.-9 Shankar Kumar, the first I.O. of the case, had not been cross-examined by the defence. Learned senior counsel has pointed out from the Lower Court Records that the order dated 15.04.2008 passed by the Trial Court would show that the application filed by the defence for recalling these witnesses had been allowed and the prosecution was directed to produce these witnesses for cross-examination, but the prosecution failed to produce these witnesses for cross-examination, and ultimately, the prosecution case was closed by order dated 21.07.2008. Learned senior counsel submitted that accordingly, the evidence of P.W.-7 Sanjay Mehta, P.W.-8 Chandramani Kuer and P.W.-9 Shankar Kumar, could not be taken into consideration. Learned senior counsel further submitted that even though it is stated that the occurrence had taken place due to the dispute of money relating to the toddy tree, but the toddy drawer (pasi) was not examined in the case, and the said motive has not been proved by the prosecution. Learned senior counsel further submitted that even though it is stated that the occurrence had taken place due to the dispute of money relating to the toddy tree, but the toddy drawer (pasi) was not examined in the case, and the said motive has not been proved by the prosecution. Learned senior counsel further submitted that the weapon of offence has not been recovered in the case, even though it is the case of the prosecution that soon after committing the murder, the accused had entered his house along with the weapon of offence and he was kept confined in his house from where he was arrested by the police. Learned counsel submitted that non recovery of the weapon of offence is fatal to the prosecution, in as much as, it is admitted by some of the witnesses that the informant and his deceased father were accused in a rape case filed by one Bhagru Chamar and the fact that the deceased might have been murdered by the said Bhagru Chamar and his family members cannot be ruled out. It is further submitted by the learned senior counsel that the occurrence had taken place in the dead night, and there was no means of identification at the place of occurrence and as such the identification of the accused is also very doubtful in the case. It is further submitted that even though the witnesses have stated that there was trail of blood from the place of occurrence up to the house of the accused, but there is no seizure of those blood stains by the police and the same was not sent for FSL examination. Learned senior counsel further submitted that the evidence of the I.O. P.W.-9 Shankar Kumar shows that the first information about the occurrence was given by the chaukidar at the Police Station, which ought to have been treated as FIR, but the same has been suppressed by the prosecution. Learned senior counsel accordingly, submitted that the prosecution has failed to bring home the charge beyond all reasonable doubts and it is a fit case in which even though the witnesses have supported the prosecution case, but the accused appellant ought to have been given the benefits of doubt. 15. Learned counsel for the State on the other hand has opposed the prayer and has submitted that the prosecution witnesses have fully supported the case. 15. Learned counsel for the State on the other hand has opposed the prayer and has submitted that the prosecution witnesses have fully supported the case. P.W.-2 Santosh Kumar Mehta, the informant is the eye witness to the occurrence and he had seen the accused cutting the neck of his father. The other witnesses came to the place of occurrence upon the alarm raised by him and one of them, namely, P.W.-3 Prasad Mehta had also seen the accused fleeing away with the blood stained weapon of offence. All the witnesses who had assembled at the place of occurrence have stated in unequivocal terms that when they came to place of occurrence, they saw the deceased profusely bleeding and dead, and they had also found the trail of blood from the place of occurrence up to the house of the accused and there were blood stains even on the door and the wall of the house of accused. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Kaushal Kishore Sahgal, who had found two injuries on the dead body of the deceased, including the one on the neck, which was sufficient to cause death in the normal course. The learned counsel further submitted that that even though the motive is also proved by the witnesses, but the case being supported by the eye-witness, the motive is immaterial, and even if there was no motive, that would not have been fatal to the prosecution case. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and the Order of sentence. 16. Having heard the learned counsels for both the sides and upon going through the record, we find that P.W.-7 Sanjay Mehta, P.W.-8 Chandramani Kuer, the wife of the deceased and P.W.-9 Shankar Kumar, the I.O., have not been cross-examined in the case. However, they were not cross-examined not due to any fault on their part, rather due to the fault on the part of the defence, as none turned up to cross-examine them, and they were discharged. However, they were not cross-examined not due to any fault on their part, rather due to the fault on the part of the defence, as none turned up to cross-examine them, and they were discharged. Though the defence also filed application for recalling these witnesses for cross-examination and the Court even allowed the said application by order dated 15.04.2008, but simply because these witnesses could not be produced by the prosecution again, there evidence cannot be discarded. Indeed it was the defence which was solely responsible for their non cross-examination, and the defence cannot be allowed to take the advantage of their own fault, only due to the fact that their application for recalling these witnesses was allowed by the Court below in the interest of justice. Since the witnesses were not cross-examined for no fault of the prosecution, we are of the considered view that their evidence can very well be taken into consideration. However, the fact remains that in the present case even if we do not take into consideration the evidence of these witnesses, it is not going to make any difference in the case, as the prosecution case is fully supported by those witnesses, who have been cross-examined by the defence. 17. Even if we confine to the evidence of the P.Ws., who have been corss-examined by the defence, we find that P.W.-2 Santosh Kumar Mehta, the informant and the son of the deceased, has fully supported the prosecution case as an eye-witness to the occurrence. He was sleeping near the deceased and he woke up upon some sound and he saw the accused cutting the neck of the deceased by garasa. Though the defence has taken the plea that it was dead night and there was no means of identification, but the fact remains that he has stated in his evidence that it was a moonlit night and he had identified the accused in the moon light. He has also stated that there was profused bleeding due to the assaults on the deceased, and the trail of blood was found from the place of occurrence up to the house of the accused. He has also stated that there was profused bleeding due to the assaults on the deceased, and the trail of blood was found from the place of occurrence up to the house of the accused. This fact is supported by all the other prosecution witnesses, who have been cross-examined by the defence, namely, P.W.-1 Chandradeo Mehta, P.W.-3 Prasad Mehta, P.W.-4 Rajeshwar Mehta and P.W.-5 Kameshwar Mehta and all of them have stated that they found the trail of blood from the place of occurrence up to the house of the accused and the blood spots were there even on the door and the wall of the accused. This fact is also supported by the I.O., P.W.-9 Shankar Kumar, though he was not cross-examined by the defence. P.W.-3 Prasad Mehta has also stated that when he reached the place of occurrence, he saw the accused fleeing away from the place of occurrence with garasa. P.W.-10 Dr. Kaushal Kishore Sahgal has found two incised wounds on the dead body, including on the neck of the deceased, which was sufficient in the normal course to cause the death. There is no scope of considering the argument of learned senior counsel for the appellant that the deceased might have been murdered by Bhagru Chamar and his family members, as the case is fully supported by the eye-witness to the occurrence, P.W.-2 Santosh Kumar Mehta and the blood trail was found up to the house of this accused. Though, the prosecution has proved the motive also in this case, but in view of the fact that the prosecution case is supported by the eye-witness, the motive for committing the offence becomes immaterial. We do not find any merit in the submission of learned senior counsel for the appellant that the first information about the occurrence given by the chaukidar at the Police Station, ought to have been treated as FIR, as it was not the complete information about the occurrence. Sanha entry of that information was made and the police proceeded to the place of occurrence, where the fardbeyan of the informant, giving the complete information, was recorded. We are convinced that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts, and there is no infirmity in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 18. We are convinced that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts, and there is no infirmity in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 18. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 9.2.2009 and Order of sentence dated 10.2.2009, passed by the learned Sessions Judge, Garhwa, in S.T No.10 of 2006, convicting and sentencing the appellant Nanhu Mehta for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. The appellant is already in custody undergoing the sentence. 19. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. Appeal dismissed.