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2018 DIGILAW 2684 (JHR)

Khetro Karwa v. State of Jharkhand

2018-12-07

H.C.MISHRA, H.C.MISHRA, RATNAKER BHENGRA, RATNAKER BHENGRA

body2018
JUDGMENT : Both these appeals arise out of the same impugned Judgment and as such, they have been 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, in both these appeals, are aggrieved by the impugned Judgment of conviction dated 12.08.2008 and Order of sentence dated 13.08.2008, passed by the learned Additional Sessions Judge, Fast Track Court-V, West Singhbhum at Chaibasa, in Sessions Trial No. 263 of 2007, whereby both these appellants have been found guilty and convicted for the offences under sections 302, 201/34 of the Indian Penal Code and section 27 of the Arms Act. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under sections 302/34 of the Indian Penal Code. The accused Khetro Karwa has also been sentenced to undergo R.I. for three years for the offence under section 27 of the Arms Act. No separate sentence has been passed for the offence under section 201 of the Indian Penal Code. The sentences of the accused Khetro Karwa were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Madey Kui, the aunt of the deceased Sanjni Karwa, recorded on 29.06.2007, at about 13:00 hrs, near her village Banasanju, P.S. Manjhari (Tantnagar O.P.), District West Singhbhum, wherein she has stated that in the previous evening, i.e., on 28.06.2007 at about 5.30 P.M., the informant and her niece Sanjni Karwa were returning from Tantnagar market. While they were about 1/2 km away from their village, near the agriculture field of the village Munda, Sushil Samad, the accused Khetro Karwa and Paru Karwa (alias name of Ghanshyam Karwa) apprehended her niece from behind, and Khetro Karwa fired a pistol putting the same on her head, due to which she died at the spot. Due to fear, the informant ran towards her village and informed the mother of the deceased and other family members. Then they came to the place of occurrence, and found the blood on the ground and the fired portion of a bullet and a broken piece of wooden butt of the pistol were also there, but the dead body of her niece was not there. Then they came to the place of occurrence, and found the blood on the ground and the fired portion of a bullet and a broken piece of wooden butt of the pistol were also there, but the dead body of her niece was not there. The dead body was searched, but could not be found in the night. In the morning search was made again for the dead body, and it was found at a distance of about 1/2 km, in the paddy filed of one Dudu Samad, concealed in the bushes. The police was informed, which came there and recorded the fardbeyan of the informant, whereupon she put her thumb impression. On the basis of the fardbeyan of the informant, Manjhari (Tantnagar O.P.) P.S. Case No. 20 of 2007, corresponding G.R. No. 347 of 2007, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, and Section 27 of the Arms Act, against both the named accused persons, 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 the accused for the offences under Sections 302, 201/34 of the Indian Penal Code, and Section 27 of the Arms Act, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, nine 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, the evidence of P.W.-9 Muhunchand Hembrum is irrelevant for the adjudication of this case. 7. P.W.-1 Madey Kui is the informant of the case and the aunt of the deceased. She has stated that the occurrence had taken place on a Thursday same year, when she was returning back from Tantnagar market along with her niece Sanjni Karwa in the evening. She was going ahead, whereas Sanjni Karwa was following her. When they reached near Tapubasa, Khetro Karwa and Paru Karwa came and apprehended Sanjni, and Khetro Karwa fired a pistol putting the same on her head, due to which Sanjni fell down. This witness fled away due to fear towards the village, and informed the mother of the deceased and other villagers. When they reached near Tapubasa, Khetro Karwa and Paru Karwa came and apprehended Sanjni, and Khetro Karwa fired a pistol putting the same on her head, due to which Sanjni fell down. This witness fled away due to fear towards the village, and informed the mother of the deceased and other villagers. Along with the villagers, she came back to the place of occurrence, but the dead body was not found there. Blood was found on the ground and one wooden part of the pistol was also there. Thereafter they started searching the dead body of the deceased, which was subsequently found in the bushes. The police was informed and police recorded her fardbeyan, on which she had put her thumb impression. Shushil Samad and Usal Karwa also put their signatures on the fardbeyan as witnesses. She has identified both the accused in the Court. In her cross- examination, this witness has stated that the accused Khetro Karwa is her nephew and Paru Karwa is her brother-in-law in relation, and they were also residing nearby. She has stated that she was returning after the Sunset and it was becoming dark at the time of occurrence. She has denied the suggestion that the accused persons had not committed the murder of the deceased and they have been falsely implicated. 8. P.W.-2 Suru Kui is the mother of the deceased, P.W.-3 Chota Jamadar Karwa is the husband of the informant and uncle of the deceased, P.W.-5 Jamadar Karwa is the father of the deceased and P.W.-7 Singrai Karwa is another uncle of the deceased, and all these witnesses have supported the prosecution case as hearsay witnesses, stating that all of them were informed about the occurrence in the village by the informant Madey Kui, who came after the occurrence, stating that Khetro Karwa and Paru Karwa had assaulted the deceased to death by firearm. They went to the place of occurrence, and saw the blood fallen on the ground. They also saw the wooden butt and one empty portion of the bullet at the place of occurrence. They have stated that the dead body of the deceased was not there. They tried to search the dead body, but could not find it in the night, and on the next day, the dead body was found in the bushes in the field of Dudu Samad, with firearm injury in the head. They have stated that the dead body of the deceased was not there. They tried to search the dead body, but could not find it in the night, and on the next day, the dead body was found in the bushes in the field of Dudu Samad, with firearm injury in the head. P.W.-3 Chota Jamadar Karwa has stated that the younger sister of the deceased was married in a poor family by Paru Karwa, due to which there was difference between them. He has also stated that Khetro Karwa had earlier also committed murder of a lady in the family, but at that time he was a juvenile, and he was in remand home, from where he had fled away. These facts are also stated by P.W.-5 Jamadar Karwa, father of the deceased and P.W.-7 Singhrai Karwa. P.W. 2 Suru Kui has stated about the dispute due to the marriage of her younger daughter. All these witnesses have identified both the accused in the Court. 9. P.W.-6 Sushil Samad is the Munda of the village. This witness has stated that Sanjni Karwa was murdered and in the investigation of that case, the police had arrived at the place of occurrence. The police recorded the fardbeyan of Madey Kui, in his presence, on which this witness and one Usal Karwa had put their signatures. Police had also prepared the inquest report of the dead body on which also both of them had put their signatures, and the police had also recovered empty part of the bullet, wooden butt of the pistol and blood stained soil from the place of occurrence, and prepared seizure list, on which also both these witnesses had put their signatures. He has identified the signatures of both of them on all these three documents, which were marked as Ext.-2 Series. 10. P.W.-4 is Dr. Dhananjay Kumar Mishra, who had conducted the post-mortem examination on the dead body of the deceased on 29.06.2007, and had found the following injuries on the dead body:- External examination:- 1. An entry wound of bullet on the left side occipital bone measuring 1½” x 1½” circular in shape, margin rough. No trace of carbon particle, tissue inverted, fracture of occipital bone. 2. An exit wound of bullet on the right side parietal bone measuring 2” x 2” circular in shape, margin rough and everted, fracture of the right side parietal bone. No trace of carbon particle, tissue inverted, fracture of occipital bone. 2. An exit wound of bullet on the right side parietal bone measuring 2” x 2” circular in shape, margin rough and everted, fracture of the right side parietal bone. Internal examination:- 1. In cranial cavity brain matter of cerebellum and right sided parietal lobe lacerated with profuse content of clotted blood between the entry and exit wound. 2. Other viscera of thorax and abdomen - NAD. This witness has stated that death was caused due to shock and cardio respiratory failure due to above injury, which was caused by bullet fired from distant place, and the injuries were sufficient in the ordinary course of nature to cause the death. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-1. 11. P.W.-8 Nirmal Kumar Jha is the I.O. of the case. This witness has stated that on 29.06.2007, he was posted as O.P. In-charge in Tantnagar Police O.P., and on that day, he was informed by village Munda about the murder of a person. He proceeded towards the place of occurrence near the village Banasanju, where he recorded the statement of the informant Madey Kui in presence of the witnesses. He has proved the fardbeyan, which is marked as Ext.-3. He took over the charge of investigation and recorded the re-statement of the informant. He inspected both the places of occurrence. First place of occurrence was the agriculture field of village Munda, Sushil Samad, where he found lot of blood on the ground, and one fired portion of .303 bullet and the broken wooden part of the pistol butt were also there, and he was informed that the deceased was murdered at this place. He seized the aforesaid articles in presence of the witnesses and he has proved the seizure list, which was marked as Ext.-4. The second place of occurrence was where the dead body of deceased was found in the paddy field of Dudu Samad, which was a bushy and lonely place. The dead body was concealed in the bushes. He prepared the inquest report of the dead body, which also he has proved and the same was marked as Ext.-5. He sent the dead body for post-mortem examination. He recorded___ the statements of the witnesses. He received the post-mortem report. The dead body was concealed in the bushes. He prepared the inquest report of the dead body, which also he has proved and the same was marked as Ext.-5. He sent the dead body for post-mortem examination. He recorded___ the statements of the witnesses. He received the post-mortem report. He has stated that the accused Khetro Karwa had a criminal antecedent in Manjhari P.S. Case No. 25 of 2005, which related to a murder case, in which, he was arrested and thereafter he had absconded. There was no criminal antecedent of the other accused. He apprehended both the accused persons on 30.07.2007 and at the time of arrest, one country made pistol loaded with .303 bullet was recovered from the possession of Khetro Karwa, which was seized and a separate case under the Arms Act was instituted. Upon completing the investigation, he submitted charge sheet in the case. He has proved the formal FIR, which was marked as Ext.-6. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that upon the accused Khetro Karwa, case was also instituted for absconding from the remand home. He has stated that he had not sent the seized firearm for ballistic examination and the seized firearm was not the material exhibit of this case. He has also admitted that he had not sent the seized blood for forensic examination. He has denied the suggestion of making faulty investigation. 12. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below for the offence, as aforesaid. 13. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below, cannot be sustained in the eyes of law, inasmuch as, the case rests on the evidence of the sole eye witness. Even as hearsay witnesses, the case is supported only by the family members of the deceased and no independent witness has been examined in this case. Even as hearsay witnesses, the case is supported only by the family members of the deceased and no independent witness has been examined in this case. It is further submitted by the learned counsel that even though it is stated by P.W.-1 Madey Kui, the sole eye witness, that the appellant Khetro Karwa had fired pistol putting the same on the head of the deceased, but P.W.-4 Dr. Dhananjay Kumar Mishra, who had conducted the post-mortem examination on the dead body, has stated that the bullet was fired from distant place. Learned counsel submitted that as such, there is discrepancy in the evidences of the informant and the Doctor conducting the post-mortem examination on the dead body, and it is not safe to base the conviction of the accused persons only on the evidence of the sole eye witness. It is submitted by learned counsel that in any event, both the appellants were entitled to the benefits of doubt. 14. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-1 Madey Kui has fully supported the prosecution case as eye witness to the occurrence. Other witnesses, though are hearsay witnesses, have clearly stated that they were informed about the occurrence by Madey Kui, whereupon they also went to the place of occurrence, where they found the blood, the fired portion of the bullet and the wooden butt of the pistol. The dead body was not there, which could be found only on the next day, with the firearm injury in the head. The ocular evidence of the witnesses, is fully corroborated by the medical evidence of P.W. 4 Dr. Dhananjay Kumar Mishra, and the post-mortem report proved by him as Ext.-1, which shows that the deceased died due to the firearm injury on her head. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against both the accused beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and the Order of sentence, passed by the Trial Court below, worth any interference by this Court. 15. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against both the accused beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and the Order of sentence, passed by the Trial Court below, worth any interference by this Court. 15. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that though the case is based on the evidence of the sole eye witness P.W.-1 Madey Kui, but she has stood the test of cross-examination fully, and there is nothing in her cross-examination so as to discredit her testimony. She has stated that it was the accused Khetro Karwa who had assaulted the deceased by putting pistol on her head. The other family members of the deceased, viz., P.W.-2 Suru Kui, P.W.-3 Chota Jamadar Karwa, P.W.-5 Jamadar Karwa and P.W.-7 Singrai Karwa have supported the prosecution case as hearsay witnesses, stating that all of them were informed about the occurrence by the informant Madey Kui. They went to the place of occurrence, and saw the blood fallen on the ground, the wooden butt and one empty portion of the bullet, at the place of occurrence. The evidence of the I.O. shows that these articles were found at the place of occurrence, which were seized by the I.O. The occurrence had taken place on 28.06.2007 and the evidence of I.O. P.W.-8 Nirmal Kumar Jha shows that both the accused persons were apprehended on 30.07.2007, and from the possession of the accused Khetro Karwa again a pistol loaded with .303 bullet was recovered, which shows that this accused was in habit of using such firearm, even though there is nothing on record to show that the seized firearm was used in this occurrence, and the I.O. has also stated it was not the material exhibit of this case. The I.O. has also stated about the criminal antecedent of this accused Khetro Karwa, stating that he was an accused in another murder case in which he had absconded, and this statement of the I.O., fully corroborates the evidence of P.W.-3 Chota Jamadar Karwa, P.W.-5 Jamadar Karwa and P.W.-7 Sinhrai Karwa, who have stated that earlier also this accused had committed the murder of a lady in the family, and at that time he was a juvenile. The fact that he had absconded from the remand home is also supported by the I.O. 16. In the facts of this case, simply because there appears to be some discrepancy in the evidences of the informant and the Doctor conducting the post-mortem examination on the dead body, regarding the distance from which the firing of the pistol was made, the entire evidence of the informant and the sole eyewitness to the occurrence P.W.-1 Madey Kui, cannot be discarded at all. The Doctor conducting the post-mortem examination on the dead body has assigned no reasons for his finding that the bullet was fired from distant place. This finding may be due to the fact that no tattooing or blackening mark was found near the wound of entry. However, other signs of close range firing were there, in as much as, the margins of the wounds of entry and the wound of exit were rough, and the wound of entry was smaller in size than the wound of exit. The wound was on the skull, and according to Modi's Textbook of Medical Jurisprudence and Toxicology, 24th Edition 1011, page 538, in contact wounds of the skull, there will be no evidence of burning, tattooing or soot. 17. We are of the considered view that on the basis of the evidence brought on record, the prosecution has been able to bring home the charges against the accused Khetro Karwa for the offences under sections 302 and 201 of the Indian Penal Code, and section 27 of the Arms Act, 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, so far this appellant is concerned. 18. However, the fact remains that there is allegation against accused Paru Karwa (alias name of Ghanshyam Karwa), that he was also accompanying the accused Khetro Karwa at the time of occurrence. Admittedly there is no allegation against him to have assaulted the deceased and simply because he was also accompanying the accused Khetro Karwa, at the time of occurrence, it cannot be presumed that he was also sharing the common intention to commit the murder of the deceased. Admittedly there is no allegation against him to have assaulted the deceased and simply because he was also accompanying the accused Khetro Karwa, at the time of occurrence, it cannot be presumed that he was also sharing the common intention to commit the murder of the deceased. The occurrence had taken place when the deceased and her aunt were returning from the market, and there is no evidence on record that the accused persons were knowing that they were to return from the market at around a particular time, and they were waiting for them to commit the murder. It is only that they happened to meet per chance at a lonely place, when the accused Khetro Karwa assaulted the deceased by firearm, causing her death. As there is no evidence on record that the accused Ghanshyam Karwa had made any assault upon the deceased, or that he was also sharing the common intention to commit the murder of the deceased, we are inclined to give the benefits of doubt to this appellant. As such, the impugned Judgement of conviction and Order of sentence passed against appellant Ghanshyam Karwa cannot be sustained in the eyes of law. 19. For the foregoing reasons we do not find any illegality in the impugned Judgment of conviction dated 12.08.2008 and Order of sentence dated 13.08.2008, passed by the learned Additional Sessions Judge, Fast Track Court-V, West Singhbhum at Chaibasa, in Sessions Trial No. 263 of 2007, convicting and sentencing the appellant Khetro Karwa for the offences under sections 302 and 201 of the Indian Penal Code, and section 27 of the Arms Act, which we hereby, affirm. The appellant Khetro Karwa is already in custody, undergoing the sentence. 20. However, the conviction and sentence of the appellant Ghanshyam Karwa made by the Trial Court below, are hereby, set aside. Consequently, the appellant Ghanshyam Karwa is given the benefits of doubt and he is acquitted of the charges. The appellant Ghanshyam Karwa is on bail. He is discharged from the liabilities of his bail bonds. 21. Before parting with this Judgment, we wish to record that P.W.-2 Suru Kui and P.W.-5 Jamadar Karwa are the parents of the deceased, and they are the victims of crime in this case. The appellant Ghanshyam Karwa is on bail. He is discharged from the liabilities of his bail bonds. 21. Before parting with this Judgment, we wish to record that P.W.-2 Suru Kui and P.W.-5 Jamadar Karwa are the parents of the deceased, and they are the victims of crime in this case. They are entitled to be duly 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 steps in the matter, with the concerned District Legal Services Authority, so that due compensation may be granted to the aforesaid victims of crime. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 22. Consequently, we do not find any merit in Cr. Appeal (DB) No. 984 of 2010, which stands dismissed, whereas Cr. Appeal (DB) No. 1354 of 2008, is hereby, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.