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2018 DIGILAW 1417 (JHR)

Mangal Samad v. State of Jharkhand

2018-07-04

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Both these appeals arise out of the same impugned Judgment and as such, they are heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and the learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 01.02.2008 and Order of sentence dated 07.02.2008, passed by the learned Additional Sessions Judge, F.T.C., Simdega, in Sessions Trial No. 91 of 2006, whereby, both these appellants, who are own brothers, have been convicted and sentenced for the offence under Sections 302/34 of the Indian Penal Code, on the allegation that they had committed the murder of their own brother Daud Samad. Upon hearing on the point of sentence, both the appellants were sentenced to undergo imprisonment for life and fine of Rs.10,000/- each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Pushpa Samad, who is the wife of the deceased, Daud Samad, recorded on 15.6.2006 at about 10:00 A.M., in Primary Health Centre, Kolebira, District Simdega, wherein she has stated that on the previous day, i.e., on 14.6.2006 at about 3:00 P.M, she had gone to the forest situated at about half kilometer from the house, for picking fire wood. Her younger brother-in-law, Mangal Samad and elder brother-in-law, Martin Samad were also in the same forest, picking lac (lah). In the meantime, her husband, Daud Samad, who had gone to attend a meeting of Pahans in a school, came there and asked his brothers as to why they were picking the lah as it was planted by him, whereupon, there was a quarrel between three brothers. The informant also rushed there to save her husband, but both the accused persons threw her husband down and assaulted him by axe giving one assault each, causing injuries on his head and he became unconscious. Thereafter the accused persons fled away. The informant came to her house and brought water to give her husband, but in spite of drinking the water, he died at the spot. As it had become night, she could not go anywhere. On 15.6.2006 her elder cousin-in-law brought a tempo, upon which, they had brought the deceased to the Primary Health Centre, where her statement was recorded by the police. As it had become night, she could not go anywhere. On 15.6.2006 her elder cousin-in-law brought a tempo, upon which, they had brought the deceased to the Primary Health Centre, where her statement was recorded by the police. On the basis of her fardbeyan, Kolebira P.S Case No.23 of 2006, corresponding to G.R No.204 of 2006, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against both these accused-appellants and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against both these accused appellants for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, eight witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the witnesses examined, P.W.-5 Khritodham Samad and P.W.-6 Danial Samad had turned hostile, though they have stated that they had seen the dead body with injuries at the place of occurrence. No witness was examined on behalf of the defence. 6. P.W.-7 Pushpa Samad is the informant of the case and the wife of the deceased. This witness has stated that on 14.6.2006, she had gone to the hill forest at about 3:00 P.M., for picking fire wood. Her husband also came there and her brothers-in-law, namely, Mangal Samad and Martin Samad were also picking the lah there. Her husband, Daud Samad objected, whereupon both the accused persons started assaulting her husband. She went to save her husband, but both the brothers threw her husband down and assaulted him by axe, causing injuries on his head, due to which, her husband died at the spot. He was profusely bleeding, and he became unconscious. She also brought water from the house and gave it to her husband, but her husband died. Thereafter, she again came to the house and informed the other persons. She again returned back near the dead body of her husband and spent the night there with the dead body. In the morning, her cousin-in-law brought a tempo, upon which they had brought the dead body to the Kolebira Police Station. Thereafter, she again came to the house and informed the other persons. She again returned back near the dead body of her husband and spent the night there with the dead body. In the morning, her cousin-in-law brought a tempo, upon which they had brought the dead body to the Kolebira Police Station. Her fardbeyan was recorded by the police, upon which, she had put her signature. She has identified her signature on the fardbeyan, which was marked Exhibit-3. The dead body was sent to the hospital and thereafter, she returned back. She has identified the accused persons in the Court. In her cross-examination, she has stated that the hill forest where the occurrence had taken place, is at a distance of less than one kilometer from her house. She had gone there alone at about 3:00 P.M., and no one else was there. Her father-in-law was in the house. Both the accused persons were in the forest and they had not assaulted this witness. She has also stated that she had no enmity with them and there was no talks between her and the accused persons. In her cross-examination, she has stated that her husband had returned back to house after attending the meeting and she was also in the house. She has denied the suggestion of giving false evidence and not to be the eyewitness to the occurrence. 7. P.W.-3 Ashishan Lugun and P.W.-4 Sukru Pahan are the hearsay witnesses, who had reached the place of occurrence upon getting the information and they were informed about the occurrence by the wife of the deceased. They had also seen the dead body in the pool of blood. P.W.-4 Sukru Pahan had also brought the dead body to the hospital. This witness has also admitted in his cross-examination that both the accused persons were present in the meeting of Pahans, which continued from 2.00 P.M. to 5.00 P.M., but they had left the meeting in the middle. P.W.-5 Khritodham Samad, who had turned hostile, has however, stated in his cross-examination that both the accused Mangal Samad and Martin Samad had also attended the meeting of Pahans, in which they were present up to 5:00 P.M. 8. P.W.-5 Khritodham Samad, who had turned hostile, has however, stated in his cross-examination that both the accused Mangal Samad and Martin Samad had also attended the meeting of Pahans, in which they were present up to 5:00 P.M. 8. P.W.-2 Prabhu Sahay Samad @ Sahay Samad is only a witness to the inquest report and the seizure list and he has proved his signatures on the inquest report and the seizure list, which were marked Exhibits-2 & 2/1 respectively. 9. P.W.-1 is Dr. Shakil Ahmad, who had conducted the post-mortem examination on the dead body of the deceased on 15th June, 2006, and had found the following:- Body was not decomposed, rigor mortis present, nutrition good, eye partially open, mouth partially open, and tongue inside. Injury No.1- cut wound 2” x 1” x skull cavity deep and brain matter was present outside just above left eye brow (left side of frontal bone). Injury No.2- Cut wound over left partial bone 2” x 1” x skull cavity deep. On dissection and internal examination, I found the brain and meninges pale, collection of blood in skull cavity, tear of left side of frontal lobe of brain. All the viscera were pale. Chamber of heart was empty in both side. Stomach had undigested food particles, Urinary bladder full of urine. He has stated that all the above external injuries were ante-mortem in nature, caused by sharp cutting weapon, like axe and the cause of death was hemorrhage and shock due to the abovementioned injuries. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-1. In his cross-examination, this witness has stated that he had not mentioned the color of the injury for ascertaining the time of death. 10. P.W.-8 Md. Ahmad is the I.O of the case. This witness has stated that on 15.6.2006 he was posted at Kolebira Police Station as A.S.I., when there was an information at the Police Station that the deceased had been murdered by his brothers. The police party proceeded with an ambulance, but in the meantime, the wife of the deceased brought the dead body on a tempo to the Primary health Centre, where the deceased was declared dead. The fardbeyan of the informant was recorded by the Officer-Incharge of the Police Station. He has proved the fardbeyan, which was marked Exhibit-4. The police party proceeded with an ambulance, but in the meantime, the wife of the deceased brought the dead body on a tempo to the Primary health Centre, where the deceased was declared dead. The fardbeyan of the informant was recorded by the Officer-Incharge of the Police Station. He has proved the fardbeyan, which was marked Exhibit-4. He has also proved the endorsement on the fardbeyan and the formal FIR, which were marked Exhibits 5 & 5/1 respectively, as also the inquest report prepared by the Officer-Incharge of the Police Station, which was marked Exhibit-6. He has stated that the informant had produced two axes, by which, the offence was said to have been committed. The same were seized and the production-cum-seizure list was prepared, which also he has proved and the same was marked Exhibit-7. He has stated that after the institution of the case, he was handed over the charge of investigation, and he inspected the place of occurrence. He has given the details of the place of occurrence which is a hill forest, situated at a distance of about ½ Km from the village of the informant. He has stated that he was informed that the murder had been committed under a Kusum tree. He recorded the re-statement of the informant and the statements of the other witnesses. He arrested the accused persons, and upon getting the post-mortem report, he submitted the charge-sheet. In his cross-examination, this witness has stated that he did not find any bloodstain at the place of occurrence. He was also not informed by any witness about any meeting of Pahans. He had also not ascertained from the other witnesses whether the informant was present at the place of occurrence or not. He had not visited the house of the informant. He has also admitted that he had not sent the axes for forensic examination. He has denied the suggestion of making faulty investigation. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused persons have denied the evidence against them. No witness, however, was adduced by the defence. On the basis of the evidence on record, both the accused persons were convicted and sentenced for the offence as aforesaid. 12. 11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused persons have denied the evidence against them. No witness, however, was adduced by the defence. On the basis of the evidence on record, both the accused persons were convicted and sentenced for the offence as aforesaid. 12. Learned counsels for the appellants have submitted that the appellants have been falsely implicated in this case and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. It is submitted that the case is supported by only one eye witness to the occurrence, who is a highly interested witness, being the wife of the deceased, and only on her evidence, the conviction of the appellants could not be based. Learned counsels further submitted that in the evidence of P.Ws- 4 & 5, Sukru Pahan and Khritodham Samad, it has come that both the accused were also attending the meeting of the Pahans and accordingly, their presence at the place of occurrence is doubtful. It is submitted by the learned counsels that even the presence of the deceased and the P.W.-7 Pushpa Samad, who is the informant of the case, at the place of occurrence, is doubtful, as she has stated in her cross-examination that after the meeting, her husband came back to the house and she was also there. Learned counsel further submitted that in any event, the occurrence had taken place due to the quarrel between the brothers that had taken place at the spur of moment, and the assaults were not made with the intention to cause the death of the deceased, as such, the offence is not made out under Section 302 of the Indian Penal Code, rather the offence, if any, is made out only under Section 304 Part II of the Indian Penal Code, for which both the appellants have served out the sentence sufficiently, as they are in custody for more than ten years. Learned counsels accordingly, submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. Learned counsels accordingly, submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. As such the appellants ought to have been given the benefits of doubt, or in any case, the conviction of the appellants be converted to the one under Section 304 Part II of the Indian Penal Code, and they be set at liberty, as they have already served the maximum sentence for the said offence. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution has been able to prove the charge against both the accused beyond all reasonable doubts. It is submitted that both the accused are none else but the brothers of the deceased and the occurrence had taken place due to picking up of lah. The deceased had objected the picking up of lah, as he claimed to have planted the lah, upon which, he was assaulted by both these accused persons, and the impact of the assault by both the accused persons was such that the brain matter was torn and protruded out of the wound, as has been proved by P.W.-1 Dr. Shakeel Ahmad, who had conducted the post-mortem examination on the dead body of the deceased, and the post-mortem report proved by him as Exhibit-1, which clearly show that the assaults were made with the intention to cause the death of the deceased. 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 the learned counsels for both the sides and upon going through the record, though we find that this is a case of single eyewitness, but the fact remains that the occurrence had taken place in the forest, where the chance of the presence of other independent witnesses, was remote. It is clearly stated that at the time of occurrence, only the deceased, both the accused and the wife of the deceased were present and accordingly, the wife of the deceased P.W.-7 Pushpa Samad, is the only eyewitness to the occurrence. This witness is a natural witness to the occurrence, and her evidence cannot be discarded only on the ground that she is the wife of the deceased and highly interested witness. This witness is a natural witness to the occurrence, and her evidence cannot be discarded only on the ground that she is the wife of the deceased and highly interested witness. There is no enmity between the parties, and any enmity has not even been suggested by the defence, which could be the cause for any false implication of the accused persons. There may be minor discrepancies in her evidence, as pointed out by the learned counsels, to create doubt about the presence of the deceased and the informant at the place of occurrence, but they are not such, so as to discard her testimony altogether. Even P.W.-3 Ashishan Lugun and P.W.-4 Sukru Pahan have stated that upon getting the information about the occurrence, they had reached the place of occurrence, i.e., the hill forest, where they were informed about the occurrence by the wife of the deceased, and the deceased was lying in the pool of blood. 15. We are of the considered view that this is a case in which the conviction of the accused could be secured on the basis of the evidence of the single eyewitness P.W.-7 Pushpa Samad, who has fully supported the prosecution case, stating that both the brothers of her husband had assaulted her husband by axe on his head, causing his death at the spot. Two incised wounds were found on the head of the deceased and the impact of the assaults made by both these appellants clearly show that both the injuries were caused up to skull cavity deep, and the brain matters protruded out, which clearly show that the assaults were made with the intention to cause the death of the deceased. We are of the considered view that in the facts of this case the offence is clearly made out under Section 302 of the Indian Penal Code, and the prosecution has been able to bring home the charge against both the accused appellants beyond all reasonable doubts. We do not find any merit in the submission of learned counsels for the appellants that the offence, if any, is made out only under Section 304 Part II of the Indian Penal Code. There is no illegality/irregularity in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 16. We do not find any merit in the submission of learned counsels for the appellants that the offence, if any, is made out only under Section 304 Part II of the Indian Penal Code. There is no illegality/irregularity in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 16. For the foregoing discussions, we do not find any illegality in the impugned Judgment of conviction dated 01.02.2008 and Order of sentence dated 07.02.2008, passed by the learned Additional Sessions Judge, F.T.C., Simdega, in Sessions Trial No. 91 of 2006, convicting and sentencing the appellants, Mangal Samad and Martin Samad, for the offence under Sections 302/34 of the Indian Penal Code, which we hereby, affirm. Both the appellants are already in custody, undergoing the sentence. 17. We are also of the considered view that P.W.-7 Pushpa Samad, who is the wife of the deceased, is the victim of crime in this case and she should be adequately 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 appropriate action in this matter, in consultation with the concerned District Legal Services Authority, so that P.W.-7 Pushpa Samad may be duly compensated under the Victim Compensation Scheme at the earliest. Let the copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 18. There is no merit in both these appeals and the same are accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along-with the copy of this Judgment.