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2018 DIGILAW 546 (JHR)

Sanjay Gari v. State of Jharkhand

2018-03-08

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsels for the appellants, including learned amicus curiae, appointed by the Court for the appellant Akla Gari @ Akhtana and learned counsel for the State. 2. At the very outset, it may be stated that one of the appellants, namely, Husna Gari died during the pendency of the appeal and accordingly, this appeal stood abated against the said appellant by order dated 14.2.2007, passed in I.A. No. 241 of 2007. 3. The surviving appellants are aggrieved by the Judgment of conviction dated 07.04.2006 and Order of Sentence dated 12.04.2006, passed by the learned Judicial Commissioner, Ranchi, in Sessions Trial No. 567 of 2005, whereby, the 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 imprisonment for life for the said offence. 4. The prosecution case was instituted on the basis of fardbeyan of the informant Deepak Tirkey, the son of the deceased Patras Tirkey, recorded on 26.5.2005 at 11.15 hours at RIMS, Ranchi, wherein, it is stated that on the same day at about 7.30 AM, the father of the informant, namely, Patras Tirkey had gone to his farm (described as bagaan) by motorcycle. There was a pond in the farm, in which, they were rearing fish and he had gone to look after it. At about 8.00 AM, the informant was informed that some persons were assaulting his father in the farm, whereupon, he along with one Markas Tigga, rushed to the farm on a motorcycle and they saw that the accused Akla Gari and Husna Gari were holding his father and Sanjay Gari and Kushal Tigga were assaulting him by tangi. Upon seeing the informant, the accused persons fled away. His father was writhing in pains in the pool of blood. He was brought to RIMS by a Sumo car, but he died in course of treatment. It is stated in the fardbeyan that about six months prior to the occurrence, Husna Gari, Kushal Tigga and Iliyas Tigga had committed mischief causing damages to his old house situated in the middle of the village and Kushal Tigga wanted to grab the said house and Husna Gari was intending to grab the farm of the informant. It is stated in the fardbeyan that about six months prior to the occurrence, Husna Gari, Kushal Tigga and Iliyas Tigga had committed mischief causing damages to his old house situated in the middle of the village and Kushal Tigga wanted to grab the said house and Husna Gari was intending to grab the farm of the informant. Claiming that the accused Akla Gari, Husna Gari, Sanjay Gari, Kushal Tigga and Iliyas Tigga had assaulted his father by tangi, causing his death, the fardbeyan was given by the informant, on the basis of which, Ratu P.S. Case No. 70 of 2005, corresponding to G.R. No. 1684 of 2005, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code against the aforesaid five 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 five accused persons 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, nine witnesses have been examined on behalf of the prosecution, including the Investigating Officer and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 6. Out of the witnesses examined by the prosecution, P.W.-1 Markus Tigga, P.W.-8 Mahadeo and P.W.-9 Johan Tigga have stated nothing against the accused persons, though they claimed to have seen the deceased in injured condition. P.W.-1 Markus Tigga is also the witness to the inquest report of the dead body of the deceased, and his signature on the inquest report was marked as Exhibit-1, on his identification. This witness was declared hostile, as he had not named the accused persons in his evidence. P.W.-4 Mashih Charan Tigga is a hearsay witness, who was not present in the village on the date of occurrence, and he has stated nothing about the occurrence. It may be also pointed out that in the evidence of Investigating Officer, it has come that the informant of the case, viz., Deepak Tirkey was murdered during the pendency of the trial. As such, the informant has not been examined in the case. 7. P.W.-2 William Tirkey is another son of the deceased. It may be also pointed out that in the evidence of Investigating Officer, it has come that the informant of the case, viz., Deepak Tirkey was murdered during the pendency of the trial. As such, the informant has not been examined in the case. 7. P.W.-2 William Tirkey is another son of the deceased. He has supported the case as eyewitness to the occurrence. He has stated that the occurrence had taken place on 26.5.2005 at about 7.30 to 8.00 AM in the morning. He was in his house when some children came and informed that his father was being assaulted. Upon hearing this, he went to his farm on a motorcycle and he saw that Akla and Husna had caught hold his father and Sanjay Gari and Kushal Tigga were assaulting his father by tangi. Upon seeing this witness, the accused persons started fleeing away. His father had fallen down and was writhing in pains. Soon a car was brought on which his father was brought to RMCH, where in course of treatment, he died. This witness has also stated the accused persons had committed mischief in his old house and damaged it and they also wanted to grab their land. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that at about 7.30 AM he was present in his house along with his family members, including his elder brother Deepak Tirkey, who rushed to the place of occurrence first on a motorcycle. This witness had followed his elder brother and when he reached the farm, he saw his brother and several other persons present there. He has stated that it would have taken only 2 to 3 minutes time in reaching the farm. In his cross-examination, this witness has stated that the occurrence had taken place on his own land. Kushal Tigga, Iliyas and Sanjay Gari were armed with tangi, but he could not say whether all these accused persons had assaulted his father. He had no knowledge as to in whose name his old house was there, and he has also no knowledge that the rent of that house was being paid in the name of Jaimashi, who was the grandfather of Kushal. He has denied the suggestion that his old house was given by Jaimashi to the father of this witness for living. He has denied the suggestion that his old house was given by Jaimashi to the father of this witness for living. He has admitted in his cross-examination that the land of the said house belonged to the family of Kushal. This witness has stated that pond in his farm was dug by his grandfather and by the side of the pond, there is land of Mahabir Mahto. He has a bus, which he was plying with his brother and his brother had also a ration shop. In his cross-examination on behalf of accused Iliyas Tigga, this witness has also stated that his father had gone to the farm by his motorcycle and this witness had gone to farm by another motorcycle. He had not seen his father going towards the farm and as such, he could not say as to when his father had gone to farm. He has also stated that his farm is situated in the eastern side of pond and in the western side, there is land of Mahabir Mahto. There are two ponds in the village, and other pond was also near his pond. He has also stated that after the occurrence, his father had fallen in the land of Mahabir. He has stated that the distance between his house and the pond could be covered in ten minutes on foot, and in two to three minutes by motorcycle. He has denied the suggestion that he had not seen the occurrence and to have falsely implicated the accused. 8. P.W.-3 Sanicharwa Oraon is anther eyewitness to the occurrence. This witness has stated that the occurrence had taken place on 26.5.2005 at about 8.00 AM in the morning. He had come for working in the well, but on that day, all the persons were engaged in fishing in the common pond in the village. He has stated that as the labourers did not come, he also went for fishing in the said pond. He saw that Akla Gari, Sanjay Gari, Husna Gari, Kushal Tigga and Iliyas Tigga were fighting with Patras and in course of fighting, they assaulted Patras by tangi. Upon the noise, the family members of Patras Tirkey also came there. He had also helped in lifting Patras, who was taken to Ranchi Hospital. He has identified the accused persons in the Court. Upon the noise, the family members of Patras Tirkey also came there. He had also helped in lifting Patras, who was taken to Ranchi Hospital. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that his house is situated at a distance of about half kilometer from the place of occurrence. He had gone to work in the well of Patras, which was under construction, in which, stones were to be fixed. As the fishing was going in the common pond of the village, no work was done in the well. He has stated that the farm and pond of the informant were visible from the common pond, which was at a distance of 150 feet. He has stated that he could not go to save Patras, as he was empty handed. He has denied the suggestion that from the common pond, the pond of the deceased was not visible and he could not see the occurrence. He has also stated in his cross-examination that Deepak Tirkey had reached the place of occurrence and thereafter his brother William Tirkey also reached there. He has denied the suggestion that he had not seen the occurrence and to have given false evidence. 9. P.W.-5 is Lakhma, who has stated that the occurrence had taken place about four months ago at about 7.00 to 8.00 AM in the morning. She was collecting leaves in the farm when Patras Tirkey came in the farm. She heard the noise and when she started going towards that place, she was prevented by Akla Gari from not going there. Akla was accompanied with Husna, Sanjay, Kushal and Ilias. Akla was pushing Patras and other persons were assaulting him. They also assaulted him by tangi. She did not go there and she remained in the farm itself. Thereafter Deepak Tirkey, the son of Patras came there and thereafter William Tirkey and Johan also came there. Patras was writhing in pains and they took Patras to hospital by a car, where Patras died. She has identified the accused persons in the Court. In her cross-examination, she has stated that she had gone to collect leaves in the farm of Patras Tirkey and she is not related to Patras in any manner. Patras was writhing in pains and they took Patras to hospital by a car, where Patras died. She has identified the accused persons in the Court. In her cross-examination, she has stated that she had gone to collect leaves in the farm of Patras Tirkey and she is not related to Patras in any manner. She has stated that there is a pond at the end of the farm and thereafter there is land of Mahabir Mahto. She has stated that the land of Mahabir Mahto is visible from the gate of the farm. She could not see as to which accused had assaulted him by what weapon, but she had seen Akla armed with tangi. She could not see the weapons of the other accused persons, but they were also armed. She has stated that she was in the farm when Patras Tirkey had come there. This witness has also stated in her cross-examination that Deepak Tirkey reached the place of occurrence while the assaults were going on. In the big pond of the village, fishing was going on and a lot of persons had assembled there, but no one came from there. She has denied the suggestion that Patras was her brother and she has also denied the suggestion to have given false evidence at the behest of Deepak Tirkey and William Tirkey. She was also cross-examined on behalf of accused Ilias, about the relationship between herself and Patras, but she has flatly denied any relationship between them. She has also stated that from the big pond, the pond of Patras was visible. She has stated that Deepak Tirkey had reached the place of occurrence with the rifle in his hand, but he had not made any firing. She has denied the suggestion to have given false evidence. 10. P.W.-6 is Dr. Chandra Shekhar Prasad, who had conducted the post-mortem examination on the dead body of the deceased on 26.5.2005, i.e., on the date of occurrence itself, at 13.30 hours and had found the following injuries on the dead body:- Abrasions:- (i) 7 x ½ cm and 2 x 2 cm on the left leg lateral side. (ii) 2 x 2 cm and 3 x 1 cm on the front of right leg. (iii) 1 x ½ cm and ½ x ½ cm on right elbow back. (iv) 4 x 1 cm on right cheek. (ii) 2 x 2 cm and 3 x 1 cm on the front of right leg. (iii) 1 x ½ cm and ½ x ½ cm on right elbow back. (iv) 4 x 1 cm on right cheek. Lacerated wounds:- (i) 5 x 2 cm x bone deep on the right forehead. (ii) 4 x 1 cm x bone deep on right occipital region of head. (iii) 2 x ½ cm x scalp deep on left occipital region of head. Internal:- There was defused contusion of right fronto parietal scalp with depressed fracture measuring 5 x 3 cm in right fronto parietal bone. There was crack fracture of right occipital bone and separation of right lamboidal suture. There was contusion of brain and presence of sub dural blood and blood clots over both sides of brain. This witness has stated that all the injuries were ante-mortem in nature caused by hard and blunt substance, may be by blunt side of tangi, and the death was due to head injuries. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 11. P.W.-7 Hari Shankar is the Investigating Officer of the case. He has stated that on 26.5.2005, he was posted as S.I. in Ratu Police Station. At about 10.15 AM, there was an information that Patras Tirkey was assaulted in Village-Jhiri and was brought to RIMS, Ranchi, where he died. He made the sanha entry about this information and proceeded towards RIMS Ranchi, where he recorded the fardbeyan of Deepak Tirkey, the son of the deceased, which was read over to him and he had put his signature on the fardbeyan. He has identified the fardbeyan to be in his pen and signature and the same was marked as Exhibit-3. He prepared the inquest report of the dead body, which he proved, and the same was marked as Exhibit-4. He sent the dead body for post-mortem examination. Thereafter he returned to the Police Station and on the basis of the fardbeyan, the formal FIR was instituted, which also he has proved. The endorsement on the fardbeyan was marked as Exhibit-5 and formal FIR was marked as Exhibit-6. He recorded the restatement of the informant and inspected the place of occurrence, which was a farm situated at a distance of about 500 meters from the village. The endorsement on the fardbeyan was marked as Exhibit-5 and formal FIR was marked as Exhibit-6. He recorded the restatement of the informant and inspected the place of occurrence, which was a farm situated at a distance of about 500 meters from the village. There was a pond in the farm and in the western side of the pond, there is land of Mahabir Mahto, where he was informed that the occurrence had taken place, and he also found a lot of blood at that place. He seized the bloodstained soil from the place of occurrence and he has proved the seizure list, which was marked Exhibit-7. He recorded the statement of other witnesses and arrested Husna Gari and Iliyas Tigga. Other accused persons surrendered in the Court. He received the post-mortem report and after completing the investigation, he submitted the charge sheet. He has stated that the informant Deepak Tirkey was murdered, for which, another case was instituted in the Police Station. In his cross-examination, he has stated that at RIMS, Ranchi, he first met Deepak Tirkey, who informed him about the occurrence, thereafter he went near the deceased. He has admitted that no one of the village was the witness to the seizure list, and the bloodstained soil was not brought to the Court. Though this witness has been cross-examined at length, but there is nothing further of much importance in his cross-examination. He has denied the suggestion to have made the faulty investigation and to have falsely implicated the accused persons. 12. The statements of the accused were recorded under Section 313 Cr.P.C., wherein, the accused persons have denied the evidence against them. The defence has also examined six witnesses in the case, who are D.W.-1 Vishwanath Mirdha, D.W.-2 Summi Kujur, D.W.-3 Tinu Gari, D.W.-4 Bansiya Mahato, D.W.-5 Balram Mirdha and D.W.-6 Ganesh Mahto, who have stated that after the occurrence they had also visited the place of occurrence, but the dead body was not found in the farm and no one was present in the farm. D.W.-2 Summi Kujur and D.W.-5 Balram Mirdha have stated that subsequently the dead body was found in the land of Mahabir Mahto after the search of about half hour, whereas D.W.-6 Ganesh Mahto stated that the dead body of the deceased was found after 10 to 15 minutes. D.W.-2 Summi Kujur and D.W.-5 Balram Mirdha have stated that subsequently the dead body was found in the land of Mahabir Mahto after the search of about half hour, whereas D.W.-6 Ganesh Mahto stated that the dead body of the deceased was found after 10 to 15 minutes. All these defence witnesses, except D.W.-6 Ganesh Mahto, have stated that Lakhma is the sister of the deceased. D.W.-5 Balram Mirdha has, however, stated that she is the cousin sister (Mausheri Bahan) and others have deposed as if she is his own sister. 13. On the basis of the evidence on record, the Trial Court below has found the appellants guilty, convicted and sentenced them for the offence as aforesaid. 14. Learned counsels, as also learned amicus curie arguing for the respective appellants have submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of the law, as the prosecution has not been able to bring home the charge against the appellants beyond all reasonable doubts. It is submitted that the place of occurrence is not fully established in the case and the presence of P.W.-2 William Tirkey at the time of occurrence is not established. Even the place of occurrence has not been proved, inasmuch as, though the witnesses have stated that the occurrence had taken place in the farm of the deceased, but from the evidence of P.W.-3 Shanicharwa Oraon, it appears that the occurrence had taken place at the common pond of the village, and according to the I.O., the place of occurrence is the land of Mahabir Mahto. It is further submitted that there is only omnibus allegation against all the accused persons, and which accused had assaulted on which part of the body is not stated by the witnesses. The evidence of assault by tangi is not at all corroborated by the medical evidence, as no sharp cut injury was found on the dead body of the deceased. Learned counsels for the appellants also submitted that though P.W.-2 William Tirkey has claimed to be the eyewitness to the occurrence, but he has not named the accused Iliyas Tigga in his evidence, alleging any assault by him. Learned counsels for the appellants also submitted that though P.W.-2 William Tirkey has claimed to be the eyewitness to the occurrence, but he has not named the accused Iliyas Tigga in his evidence, alleging any assault by him. It is submitted that P.W.-2 William Tirkey is actually not the eyewitness to the occurrence, as the witnesses have stated that he reached at the place of occurrence after the informant and according to the FIR, the informant has stated that as soon as he reached the place of occurrence, the accused persons had fled away. Learned counsels accordingly, submitted that P.W.-2 William Tirkey, being the son of the deceased, is a highly interested witness and the false implication of the accused appellants cannot be ruled out, in view of the fact that enmity is admitted between the parties. P.W.-2 William Tirkey has also admitted in his cross-examination that the land, on which his old house was situated, belonged to the accused persons. Learned counsels further submitted that even P.W.-5 Lakhma is the sister of the deceased and she is also a highly interested witness in the case. Learned counsels accordingly, submitted that even though the witnesses have supported the prosecution case, it is a fit case, in which, the appellants ought to have 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 has been able to bring home the charge against the accused persons beyond all reasonable doubts. It is submitted that P.W.-2 William Tirkey is the eyewitness to the occurrence, who has stated that when he reached the place of occurrence, he had seen the appellants Akla and Husna Gari holding his father and accused Sanjay Gari and Kushal Tigga assaulting him by tangi. Though he has missed the name of Iliyas Tigga in his examination-in-chief, but in his cross-examination, it has been taken from him that Ilias Tigga was also present at the place of occurrence and he was armed with tangi. P.W.-3 Sanischarwa Oraon is an independent eyewitness to the occurrence, who had seen the occurrence from the common pond of the village, which was situated only at the distance of about 150 feet from the place of occurrence and he had seen all the accused persons assaulting the deceased. P.W.-3 Sanischarwa Oraon is an independent eyewitness to the occurrence, who had seen the occurrence from the common pond of the village, which was situated only at the distance of about 150 feet from the place of occurrence and he had seen all the accused persons assaulting the deceased. Similar is the statement of P.W.-5 Lakhma, who was collecting leaves at the place of occurrence from before, and she has also stated that all the accused persons were assaulting the deceased. The occurrence had taken place near the pond of the deceased situated within his farm and he had fallen in adjacent land of Mahabir Mahto, where lot of blood was also found by the I.O. of the case. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-6 Dr. Chandra Shekhar Prasad, who had found three lacerated wounds on the head of the deceased and the brain was found to be full of blood. Learned counsel 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. 16. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is supported by the eyewitness, namely, P.W.-2 William Tirkey, P.W.-3 Sanischarwa Oraon and P.W.-5 Lakhma, who have claimed to have seen the occurrence and have stated that all the five accused persons were assaulting the deceased. According to P.W.-2 William Tirkey, his father was apprehended by accused Akla Gari and Husna Gari and accused Sanjay Gari and Kushal Tigga were assaulting him by tangi. This witness has not taken the name of accused Iliyas Tigga in his examination-in-chief, alleging any assault by him. The other two eyewitnesses have made only omnibus allegation of assault against all the accused persons, without stating which of the accused had assaulted the deceased, by what weapon, and on which part of the body, though both of them have stated that the deceased was assaulted by tangi. None of them have stated that the assault was made by the blunt side of the tangi. None of them have stated that the assault was made by the blunt side of the tangi. Admittedly, P.W.-2 William Tirkey had reached the place of occurrence after the informant and according to the FIR, as soon as the informant had reached the place of occurrence, the accused persons had fled away. In that view of the matter, P.W.-2 William Tirkey could not have seen the accused Akla Gari and Husna Gari holding his father, and accused Sanjay Gari and Kushal Tigga assaulting him by tangi. He has also admitted in his cross-examination that Kushal Tigga, Iliyas and Sanjay Gari were armed with tangi, but he could not say whether all these accused persons had assaulted on his father. This clearly casts a doubt whether he is the eye witness to the occurrence. The evidence of P.W.-6 Dr. Chandra Shekhar Prasad and the post-mortem report proved by him as Exhibit-2, show that there were only lacerated wounds on the dead body of the deceased, and no injury was found to have been caused by any sharp cutting weapon. Thus, the evidence that the deceased was assaulted by at least two accused persons by tangi, is not at all corroborated by the evidence of P.W.-6 Dr. Chandra Shekhar Prasad. In view of the specific evidence of assault by tangi, it cannot be presumed that the assaults were made by the blunt side of the tangi. [Authority - Hallu and Ors. Vs. State of Madhya Pradesh, reported in (1974) 4 SCC 300 ]. All the three eye witnesses to the case appear to be interested witnesses, as P.W.-2 William Tirkey, is the son of the deceased, P.W.-3 Sanischarwa Oraon had come to work in the well under construction of the deceased, and about P.W.-5 Lakhma, it is claimed that she is the sister of the deceased, though this fact is denied by her. The enmity between the parties is admitted in the case, and it is also admitted by P.W.-2 William Tirkey that the land of his old house which was allegedly damaged by the accused persons, actually belonged to the family of the accused Kushal Tigga. As such, the false implication of the accused persons due to admitted enmity cannot be ruled out. As such, the false implication of the accused persons due to admitted enmity cannot be ruled out. We are of the considered view that even though the prosecution witnesses have supported the case, but in view of the fact that their ocular evidence of assault by tangi is not at all corroborated by the medical evidence, the prosecution has failed to bring home the charge against the accused appellants beyond all reasonable doubts, and in the facts of this case, the appellants were entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. 17. For the foregoing reasons, the impugned Judgment of conviction dated 07.04.2006 and Order of sentence dated 12.04.2006 passed by learned Judicial Commissioner, Ranchi, in S.T. No. 567 of 2005, convicting and sentencing the appellants Sanjay Gari, Akla Gari @ Akhtana, Kushal Tigga and Iliyas @ Ilias Tigga, for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. All the aforesaid appellants are given the benefits of doubt and are acquitted of the charge. The appellants Sanjay Gari and Kushal Tigga are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. The Appellants Akla Gari @ Akhtana and Iliyas @ Ilias Tigga are on bail, and they are discharged from the liabilities of their respective bail bonds. 18. Before parting with this Judgment, we must record that we have been given able assistance by Sri Rajesh Kumar, learned amicus curiae, appointed by this Court for appellant Akla Gari @ Akhtana. We direct the Secretary, High Court Legal Services Committee, to make the payment of prescribed remuneration to learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 19. This appeal is accordingly, allowed. Let the Lower Court Records be sent to the Court concerned forthwith, along with the copy of this Judgment.