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2018 DIGILAW 2413 (JHR)

Md Farooq v. State Of Jharkhand

2018-10-30

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT 1. All these appeals arise out the same impugned Judgment, as such, they are heard together, and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsel for the State. 3. Appellants are aggrieved by the impugned Judgement of conviction and Order of sentence dated 14.05.2008, passed by the learned 1st Additional Sessions Judge, Godda, in Sessions Case No. 265 of 2006 / 84 of 2006, whereby, these appellants have been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life and fine of Rs.6000/- each for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Lalan Kumar Kushwaha, the son of the deceased Srikant Kushwasa, recorded on 18.07.2006 at about 6:55 A.M., near Mango orchard at village Belbadda, PS- Mahagama ( Belbadda), District- Godda, near the dead body of the deceased, wherein he has stated that on the same day, at around 6:00 A.M., the accused Dost Mohammad came to his house, asking his father to accompany him to haat in village Mirja. His father told that they would go after taking breakfast and tea, but Dost Mohammad made hurry and did not allow him to take even tea. The informant, who was present there, stated that he shall also accompany them as he had to go to his sister''s place, but his father proceeded on his motorcycle along with Dost Mohammad, asking him to follow. The informant also proceeded on the motorcycle of his uncle, and at about 6:30 A.M., when he reached near orchard near village Belbadda, he saw the motorcycle of his father going about 200 yards ahead. He also saw that four to five persons came out from the orchard and tried to stop the motorcycle of his father. His father continued to move with the motorcycle, but Dost Mohammad, who was the pillion rider, caused the motorcycle to fall down by his legs. Thereafter, one person put the pistol near the eye of his father, whom the informant identified as the accused Md. Farooq. Md. Aziz was also there, who was surrounding his father along with two to three unknown persons. Thereafter, one person put the pistol near the eye of his father, whom the informant identified as the accused Md. Farooq. Md. Aziz was also there, who was surrounding his father along with two to three unknown persons. It is stated in the fardbeyan that before the informant could save his father, Md. Farooq fired pistol upon his father, due to which, his father fell down and the accused persons started fleeing away. Dost Mohammad was also extending help to the accused persons and he also fled away along with the accused persons. The informant tried to chase the accused persons to some distance, and thereafter he returned back. His father died at the spot. It is stated in the fardbeyan that the father of the informant used to say that Farooq and Aziz used to threaten to cause his death, and one of his agnates, namely, Anil Mahto was instigating the accused persons to commit the murder of his father. On the basis of the fardbeyan of the informant, Meharma (Belbadda) P.S. Case No. 116 of 2006, corresponding to G.R. No.692 of 2006, was instituted against the named accused persons, for the offences under sections 302 / 34 and 120-B of the Indian Penal Code, and Section 27 of the Arms Act, and the investigation was taken up. It appears that after investigation, the police submitted the charge-sheet against these three appellants. 5. After commitment of the case to the Court of Session, charge was framed against the appellants for the offence under sections 302 / 34 of the Indian Penal Code, and upon the accused persons'' pleading not guilty and claiming to be tried, they are put to trial. In course of trial, seven witnesses have been 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. One material witness PW-6 Huro Rabidas has turned hostile and has not supported the prosecution case at all. 6. Pw-1 Lalan Kumar Kushwasa is the informant of the case and the son of the deceased. He has supported the prosecution case, as an eye witness to the occurrence, stating that occurrence had taken place on 18.07.2006, which was a Tuesday, at about 6:30 A.M., in the morning. 6. Pw-1 Lalan Kumar Kushwasa is the informant of the case and the son of the deceased. He has supported the prosecution case, as an eye witness to the occurrence, stating that occurrence had taken place on 18.07.2006, which was a Tuesday, at about 6:30 A.M., in the morning. Dost Mohammad had come to his house at about 5:45 A.M., in the morning, and asked his father to accompany him to the haat of village Mirza. Though his father was saying that he would go after taking breakfast and tea, but the accused made hurry and did not allow him to take breakfast. When his father got ready for going, this witness stated that he had also to go to his sister''s village, and he would also accompany them, but his father asked him to follow on another motorcycle, and he proceed on the motorcycle along with Dost Mohammad. Thereafter, this witness proceeded towards his sister''s place on the motorcycle of his uncle, and as he reached near Belbadda, he saw his father going 100 to 150 yards ahead, where there was an orchard. From the orchard 4 to 5 persons came and tried to stop the motorcycle of his father, and Dost Mohammad, who was the pillion rider on the motorcycle, caused the motorcycle to fall down by his legs. All 4 to 5 persons apprehended his father and Md. Farooq put pistol near the right eye of his father. This witness tried to proceed ahead, but by that time Md. Farooq fired the pistol. Md. Aziz was also there who had surrounded his father, and thereafter all of them fled away. Dost Mohammad also fled away along with them. This witness tried to chase them to some distance, and thereafter he returned back and raised alarm and by the time, he reached near his father, his father had died. Several persons had assembled there. This witness has stated that he had given the statement before the police and he has proved his signature on the fardbeyan, which was marked as Ext.- 1. He has also started that there was land dispute with Anil Mahto, and he has identified the accused persons in the Court. In his cross-examination, this witness has stated that the place of occurrence is at a distance of 10 to 12 k.m., from his house. He has also started that there was land dispute with Anil Mahto, and he has identified the accused persons in the Court. In his cross-examination, this witness has stated that the place of occurrence is at a distance of 10 to 12 k.m., from his house. He had no knowledge that his father used to give money to Dost Mohammad for purchasing cattle, but Dost Mohammad often used to come to his house. He has stated that his father proceed along with Dost Mohammad at about 6.00 A.M. His father was four brothers and all of them were separate in mess. He has stated that near the place of occurrence, there was a mango orchard and he had seen from a distance of about 200 yards that the accused persons were surrounding his father. He has denied the suggestion that he could not see the occurrence, as he was at a distance of about 200 yards. He has also stated that when he reached near his father, several persons had assembled there. He has also stated in his cross-examination that he left his house after 2 to 4 minutes after his father. He had heard the gun shot from the distance of 40 to 50 ft., and he had given the statement before the police that Dost Mohammad had caused the motorcycle to fall down by his legs. He has also stated that the Police Station was situated at a distance of about 300-400 meters. He had not gone to the Police Station, but the police had arrived there on its own. This witness has denied the suggestion of giving false evidence. 7. P.W.-3 Hare Ram Kushwaha and P.W.-4 Rama Kant Mahto, are the own brothers of the deceased and the uncles of the informant. These witness have supported the prosecution case as hearsay witnesses, so far it relates to the murder of the deceased. They have stated on the day of occurrence the accused Dost Mohammad had come to their house, and had hurriedly taken away the deceased along with him and after about half an hour, P.W.-3 Hare Ram Kushwaha got the telephonic message that his brother had been murdered. Thereafter, they went on a motorcycle to the place of occurrence, and saw the dead body with the gunshot injury. Thereafter, they went on a motorcycle to the place of occurrence, and saw the dead body with the gunshot injury. The son of the deceased was present there, and he informed them about the occurrence stating that 4 to 5 persons came out from the orchard, they tried to stop the motorcycle, Dost Mohammad caused the motorcycle to fall down by his legs and thereafter Md. Farooq assaulted their brother by firearm. Thereafter the accused Dost Mohammad also fled away along with them. They have also stated that there was enmity between the deceased and the accused persons due to the fact that Farooq had kept Rs. 60,000-65,000/- of the deceased in connection with the business of the cattle, which he was not returning. Md. Aziz was also along with Md. Farooq. They have also stated about the enmity with their agnate Anil Mahto. Though these witnesses were also put to extensive cross-examination, but there is nothing of much importance in their cross-examination, as they are hearsay witnesses to the occurrence of murder. Though it is a fact that the story of enmity due to money has come for the first time in the evidence of P.W.-3 Hare Ram Kushwaha and P.W.-4 Rama Kant Mahto, but there is no cross-examination of these witnesses on the point that they had not given any such statement before the police, nor there is any cross examination on this point in the evidence of Investigating Officer. 8. P.W.-5 Bankeshwar Sah is a witness to the seizure of the fired cartridge and blood stained soil, from the place of occurrence, and he has proved his signature on the seizure list, which was marked as Ext.-3. He has stated nothing about the occurrence. 9. P.W.-2 Dr. Satyendra Mishra had conducted the post-mortem examination on the dead body of the deceased on 18.07.2006, and found the following injuries:- External injuries Ante-mortem (1) Lacerated wound " in diameter on the left pre auricular region of face with blackening of adjoining skin of left chin. Overall measurement 4"x3" (2) Lacerated wound 6" x 3" x 3" on the right side of neck, injuring all the structure with loss of lower part of pinna of right ear. Wound No.1 was the wound of entry & No.2 was the wound of exist. Both the injuries caused by fire arm. On Dissection: There was laceration of frontal bones of brain. Wound No.1 was the wound of entry & No.2 was the wound of exist. Both the injuries caused by fire arm. On Dissection: There was laceration of frontal bones of brain. Heart both sides empty. Stomach contained about 45 ml of gastric juice. Intestine full of gas & faecal matter. All the solid organs like lever, kidney, spleen were intact, but pale. He has stated that the cause of death was due to severe hemorrhage and shock resulting from the firearm injuries. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-2. 10. P.W.-7 Manoj Kumar Gupta is the Investigating Office of the case. This witness has stated that on 18.07.2006 he was posted as Office-Incharge of Belbadda Police Station. On that date, he got the information about the murder of the deceased. He recorded the fardbeyan of Lalan Kumar Kushwaha, the son of the deceased, near the orchard of one Shambhu Ram of village Belbadda. He Has proved the fardbeyan to be in his pen and signature, which was marked as Ext.-4. He has proved the formal FIR, which was marked as Ext.-5, and he also proved endorsement on the fardbeyan, which was marked as Ext.-6. He took over the charge of investigation and he prepared the inquest report of the dead body, which also he had proved, and the same was marked as Ext.-7. He recovered some articles near the dead body and he has proved the seizure list, which was marked Ext.-8. He had seized fired cartridge and blood stained soil from the place of occurrence, which he produced in the Court, which were marked as material Exts.-I and II respectively. He had recorded the statements of the witnesses and he has given the description of the place of occurrence, which is near the mango orchard of Shambhu Ram, near village Belbadda, on a road. He has stated that at the place of occurrence, he found zigzag marks of the tyres of the motorcycle. He got the post-mortem report. He arrested the accused persons on the different dates, and after completing the investigation, the charge-sheet was submitted. He had handed over the charge of investigation to another I.O. on 27.12.2006. He has stated that at the place of occurrence, he found zigzag marks of the tyres of the motorcycle. He got the post-mortem report. He arrested the accused persons on the different dates, and after completing the investigation, the charge-sheet was submitted. He had handed over the charge of investigation to another I.O. on 27.12.2006. In his cross-examination this witness has stated that the place of occurrence is situated at about 400 to 500 meters from the Police Station, and he had got the information by way of rumour, upon which he had visited there. The informant had not come to the Police Station. He has stated that by the time, he reached the place of occurrence, several persons had assembled there, and at 6.55 A.M., (which is the time of recording of fardbeyan), the witnesses Rama Kant Mahto and Hare Ram Kushwaha were also present there. First of all he recorded the statement of the informant and thereafter he recorded the statements of other witnesses. He did not seize the motorcycle of the deceased, and he had not seized even he clothes of the deceased. He has stated that he had not recorded the statement of the villagers. He has also stated that the informant had given the statement before him that Dost Mohammad had caused the motorcycle to fall down by his legs. He has also admitted in his cross examination that on the FIR, signature of other witnesses has not been taken. He has stated that though there was a ditch by the side of the road, the motorcycle had not fallen in the ditch, and it was on the road itself. He has denied the suggestion of making of faulty investigation. 11. The statements of the accused persons were recorded under section 313 of the Cr.P.C., in which the accused persons denied the evidence against them. No evidence was adduced by the defense. On the basis of the evidence on record, the appellants have been found guilty, convicted and sentenced for the offense, as aforesaid. 12. Learned senior counsel appearing for the appellant Md. Farooq and learned counsel appearing for the appellants Dost Mohammad and Md. No evidence was adduced by the defense. On the basis of the evidence on record, the appellants have been found guilty, convicted and sentenced for the offense, as aforesaid. 12. Learned senior counsel appearing for the appellant Md. Farooq and learned counsel appearing for the appellants Dost Mohammad and Md. Aziz, have submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts, inasmuch as, the enmity is admitted between the parties, due to which the false implication of the accused persons cannot be ruled out. It is submitted by the learned counsels that there is only one eye witness to the occurrence, who is P.W.-1 Lalan Kumar Kushwaha, the son of the deceased, and no independent witness has come forward to support the prosecution case, even though, it has come in the evidence that several persons had assembled at the place of occurrence. It is submitted by the learned counsels that there was some gap between the departure of the deceased and the informant from the house, and it is quite unlikely that at the distance of about 10 to 12 k.m., from the house, the informant would be only about 200 yards behind the motorcycle of his father, which makes the presence of the informant at the place of occurrence doubtful. It is also submitted that though the informant has stated that the pistol was put near the right eye of the deceased, but the wound of entry was on the left side of the face, and this also creates doubt on the informant being the eyewitness to the occurrence. It is submitted by learned counsels that since there is admitted enmity between the parties, it is not safe to rely upon the evidence of the sole eye witness, who is highly interested witnesses, being the son of the deceased. Learned counsels accordingly, submitted that it is a fit case in which, at least the benefits of doubt ought to have been given to the accused persons. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by the informant P.W.-1 Lalan Kumar Kushwaha, as eye witness to the occurrence. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by the informant P.W.-1 Lalan Kumar Kushwaha, as eye witness to the occurrence. The brothers of the deceased, namely, P.W.-3 Hare Ram Kushwaha and P.W.-4 Rama Kant Mahto, have also supported the case as eye witnesses to the fact that the deceased was taken away by the accused Dost Mohammad along with him, and they are hearsay witness to the rest of the occurrence, as they had reached the place of occurrence upon getting information on phone, and informed about the occurrence by the son of the deceased. It is submitted that their ocular evidence is fully corroborated by the medical evidence of P.W.-2 Dr. Satyendra Mishra, and post-mortem report proved by him as Ext.-2, which show that gunshot injuries were found on the dead body, which were sufficient in the ordinary course of nature to cause the death. Learned counsel for the State accordingly, submitted that the prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts, and 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 the prosecution case is fully supported by the informant P.W.-1 Lalan Kumar Kushwaha, the son of the deceased, stating that the accused Dost Mohammad had come to his house early in the morning, and taken away his father on the motorcycle on the pretext of going to market, and thereafter this witness also followed on another motorcycle and when he reached near the mango orchard of village Belbadda, 4-5 persons came out from the orchard and tried to stop the motorcycle, and Dost Mohammad, who was the pillion rider on the motorcycle, caused the motorcycle to fall down by his legs. Md. Farooq put pistol on the face of his deceased father, and the other persons, who had tried to stop the motorcycle, including Md. Aziz, who was accompanying them, surrounded the father of the informant. Md. Farooq shot the gun on the deceased on his temple. Md. Farooq put pistol on the face of his deceased father, and the other persons, who had tried to stop the motorcycle, including Md. Aziz, who was accompanying them, surrounded the father of the informant. Md. Farooq shot the gun on the deceased on his temple. The evidence of this witness that Dost Mohammad caused to motorcycle to fall down by his legs, is also corroborated by the evidence of the I.O., P.W.-7 Manoj Kumar Gupta, who had found the zigzag marks of the tyres of the motorcycle at the place of occurrence. We are of the considered view that even though P.W.-1 Lalan Kumar Kushwaha is an interested witness, being the son of the deceased, but his evidence is quite trustworthy, as it is fully corroborated by the evidence of the I.O., as well as medical evidence on record, and it can be safely relied upon. P.W.-3 Hare Ram Kushwaha and P.W.-4 Rama Kant Mahto had reached the placed of occurrence upon getting information, and had seen the dead body with the firearm injuries. Though, learned counsel for the appellants have tried to impress upon us that P.W.-1 Lalan Kumar Kushwaha is not eye witness to the occurrence, submitting that according to this witness, the pistol was put on the right side near the eye of the deceased, but the wound of entry was found by P.W.-2 Dr. Satyendra Mishra on the left side of the temple, but this is not of much importance, inasmuch as, it cannot be presumed that the deceased shall keep his head stiff. There was all likelihood of moving of the head around at the time of occurrence, and the wound of entry, as proved by P.W.-2 Dr. Satyendra Mishra, clearly shows that there was blackening marks on the skin, which shows that gunshot was made from a close distance. We also find that the ocular evidence of the witnesses is fully corroborated by the medical evidence of P.W.-2 Dr. Satyendra Mishra and the post-mortem report proved by him As Ext.-2, and the prosecution has been able to prove beyond all reasonable doubts, that in furtherance of common intention of all the accused persons, the accused Md. Farooq had assaulted the deceased by firearm, causing his death at the spot. Satyendra Mishra and the post-mortem report proved by him As Ext.-2, and the prosecution has been able to prove beyond all reasonable doubts, that in furtherance of common intention of all the accused persons, the accused Md. Farooq had assaulted the deceased by firearm, causing his death at the spot. As such, on the basis of the evidence on record, the offence under Sections 302 / 34 of the Indian Penal Code, is clearly made out against all the three accused persons, and we do not find any illegality in the impugned Judgement of conviction and Order of sentence, passed by the trial Court below, worth any interference by this Court. 15. For the foregoing reasons, as there is no illegality in the impugned Judgement of conviction and Order of sentence dated 14.05.2008, passed by the learned 1st Additional Sessions Judge, Godda, in Sessions Case No. 265 of 2006 / 84 of 2006, convicting and sentencing the appellants, Md. Farooq, Dost Mohammad and Md. Aziz @ Md. Aziz Ansari, for the offence under sections 302 / 34 of the Indian Penal Code, we hereby, affirm the same. The appellant Md. Farooq is already in custody, undergoing the sentence. The appellants Dost Mohammad and Md. Aziz @ Md. Aziz Ansari are on bail. Their bails, are hereby, cancelled, and they are directed to surrender in the Trial Court below forthwith, for serving out the sentence passed by the Trial Court. The Trial Court below is also directed to issue process forthwith, compelling the surrender / production of the appellants Dost Mohammad and Md. Aziz @ Md. Aziz Ansari, for serving out the sentence. 16. We do not find any merit in all these three appeals, which are, accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgement.