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2019 DIGILAW 1549 (JHR)

Ramai Cherwa @ Anil Cherwa v. State of Jharkhand

2019-09-04

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : Shree Chandrashekhar, J. Three persons, namely, Ramai Cherwa @ Anil Cherwa, Sanjay Cherwa and Lobo Cherwa were named by Krishna Surin as the accused persons in his fardbeyan recorded on 08.03.1998, on the basis of which Manoharpur (Chiria Mines O.P) P.S Case No.7 of 1998 was registered under section 448/302/201/34 IPC. After the investigation, a charge-sheet was submitted and the above-named accused persons, the appellants, were sent up for trial on the charge framed under sections 302/34 IPC and 201/34 IPC. 2. The appellant, namely, Ramai Cherwa @ Anil Cherwa has been convicted and sentenced to undergo R.I for life under section 302 IPC and the other two appellants, namely, Sanjay Cherwa and Lobo Cherwa have been convicted and sentenced to undergo R.I for life under section 302/34 IPC. They have been further convicted and sentenced to undergo R.I for 5 years under section 201/34 IPC and fine of Rs.3,000/- each. 3. The appellant, namely, Sanjay Cherwa has been granted bail vide order dated 08.12.2005 and the appellant, namely, Lobo Cherwa was granted bail on 12.07.2006 by this Court. 4. On 30.03.2009, the appellant, namely, Ramai Cherwa @ Anil Cherwa has also been granted bail by this Court. 5. Mr. Abhay Kr. Tiwari, the learned APP states that during pendency of this criminal appeal, Ramai Cherwa @ Anil Cherwa has been released on remission. The learned APP has referred to the affidavit dated 03.07.2019 sworn by the Superintendent, L.N.J.P. Central Jail, Hazaribagh to submit that the appellant, namely, Ramai Cherwa @ Anil Cherwa was released from jail on 22.09.2012 by virtue of order of the State Sentence Review Board. 6. Ms. Saumya Pandey, the learned Amicus submits that she has not received any instruction for pressing this criminal appeal on behalf of the appellant no.1, namely, Ramai Cherwa @ Anil Cherwa. 7. In the above facts, this criminal appeal qua the appellant no.1, namely, Ramai Cherwa @ Anil Cherwa is dismissed as abated. 8. The informant of this case, namely, Krishna Surin is the son of Sombari Kui, the deceased. In his fardbeyan, which was recorded on 08.03.1998 at 14.00 hrs., the informant has stated that on 07.03.1998 at about 4 p.m when his mother after taking bath was sun bathing in the courtyard at that time Ramai Cherwa @ Anil Cherwa, Sanjay Cherwa and Lobo Cherwa came there. In his fardbeyan, which was recorded on 08.03.1998 at 14.00 hrs., the informant has stated that on 07.03.1998 at about 4 p.m when his mother after taking bath was sun bathing in the courtyard at that time Ramai Cherwa @ Anil Cherwa, Sanjay Cherwa and Lobo Cherwa came there. The accused persons, namely, Sanjay Cherwa and Lobo Cherwa suddenly caught hold of his mother and Ramai Cherwa started assaulting his mother with Katu on her neck and abdomen. He has stated that the occurrence was seen by Sundari Surin and Parma Surin. They fled away due to fear but have seen the occurrence from near the house of Surendra. After killing his mother the accused persons took her dead body towards the forest. In the court, the informant has been examined as P.W.4. He has deposed that on 07.03.1998 he was present in his house at about 4 p.m in the evening when his mother-Sombari Kui, elder sister-in-law-Sundari Surin and nephew-Parma Surin were sitting in the courtyard. Suddenly, the accused persons entered his house and Ramai Cherwa @ Anil Cherwa started assaulting his mother with Katu on her neck and abdomen. According to the prosecution, another eye-witness to the occurrence is Sundari Surin. In her examination-in-chief, she has also claimed that on the day of the occurrence she was present in the house. She has also made specific allegation of assault on her mother-in-law, namely, Sombari Kui by the appellant-Ramai Cherwa @ Anil Cherwa. Both these witnesses have stated that after killing Sombari Kui the accused persons fled away with the dead body towards the forest. 9. Dr. Jawahar Khan, who has conducted the post-mortem examination, has found the following injuries on Sombari Kui: i. Incised wounds measuring 1/2” X 1/2” X 3”, 1/2” X 1/2” X 3”, 1/2” X 1/2” X 2” over right side of neck. ii. Incised wound 1/2” X 1/2” X 3” over left side of neck. iii. Incised wounds 1/2” X 1/2” X 3”, 1/2” X 1/2” X 2½” over left side of abdomen. Omentum was protruding. iv. Incised wound 1/2” X 1/2” X 2” over chest in the mid. v. Incised wounds 1/2” X 1/2” X 1/4”, 1/2” X 1/2” X 1/4” over right forearm. 10. According to the doctor, the aforesaid injuries on Sombari Kui were caused by pointed sharp-cutting weapon, such as, sword. Omentum was protruding. iv. Incised wound 1/2” X 1/2” X 2” over chest in the mid. v. Incised wounds 1/2” X 1/2” X 1/4”, 1/2” X 1/2” X 1/4” over right forearm. 10. According to the doctor, the aforesaid injuries on Sombari Kui were caused by pointed sharp-cutting weapon, such as, sword. All the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. 11. The witness, namely, Amar Singh Siddu-P.W.2 is the inquest and seizure witness and Saroj Mandal-P.W.5 is a formal witness. 12. According to the prosecution, on the disclosure statement made by the appellant-Ramai Cherwa @ Anil Cherwa, dead body of Sombari Kui was recovered from a hillock concealed in a cave near Raniduba Nala and the alleged crime weapon, that is, Katu was recovered from his house. The investigating officer has deposed that he has collected blood-stained earth from the house of the informant and prepared seizure-list in front of Amar Singh Siddu and Braj Mohan Cherwa. 13. The learned Sessions Judge has taken the following circumstances against the appellants to convict them for the offence under section 302/34 IPC; (i) P.W.3 and P.W.4 have seen the appellants assaulting Sombari Kui, (ii) both the eye-witnesses have seen the appellants taking away the dead body, (iii) the dead body was recovered at the instance of Ramai Cherwa, (iv) blood-stained stone, blood-stained earth and the crime weapon were seized by the investigating officer, (v) the motive behind the crime has been established, and (vi) the medical evidence corroborates the ocular evidence. 14. At the outset, we may indicate that a judgment is not merely an opinion of the Judge rather the findings recorded by the Judge must be supported by the reasonings. Under section 354 of the Code of Criminal Procedure, a Judge is required to record the point on determination and his findings thereon. The aforesaid circumstances which have been taken note of by the learned Sessions Judge, if proved, would be relevant for convicting an accused on the charge of murder but what has not been considered by the learned Sessions Judge in this case is the facts elicited by the defence through cross-examination of the prosecution witnesses. 15. The appellants have set up a defence that Sombari Kui was done to death by her family members. 15. The appellants have set up a defence that Sombari Kui was done to death by her family members. Her sons used to fight with her and the medical evidence would disclose that the manner of occurrence was improbable. 16. On the prosecution leading evidence through P.W.2 and P.W.5 that the investigating officer has collected blood-stained earth and blood-stain stones from the place of occurrence, the following answer has been elicited by the defence through cross-examination of the doctor: 6. “................The garments of the deceased are expected to have stained with blood. I do not recollect as to whether the clothing on the deceased had any cut mark or torn.” 17. On the point of quarrel between Sombari Kui and her sons and the defence story that she was killed by her family members, P.W.4 has admitted in his cross-examination that the death-cum-retiral benefits of his father who was working under the railways was not paid and he has also admitted that his brothers, namely, Surendra Surin and Raju Surin used to fight with his mother. 18. Since this appeal qua the appellant Ramai Cherwa @ Anil Cherwa has not been pressed, we are not inclined to record findings on merits of the prosecution's case against him. Insofar as, the other appellants, namely, Sanjay Cherwa and Lobo Cherwa are concerned, the prosecution's case against them is that they caught hold of Sombari Kui while Ramai Cherwa assaulted her with Katu on her neck and abdomen. On the role played by the surviving appellants, we find that the evidence laid by the prosecution is cryptic. Except stating that they caught hold of Sombari Kui, in the entire occurrence the prosecution has not alleged any other role played by them. Now, in view of the medical evidence, particularly on the manner of occurrence and the number of injuries caused to Sombari Kui; 5 incised wounds were found on her neck, abdomen, chest and forearm, we are of the opinion that such injuries could not have been caused to her while two of the appellants had caught hold of her. If at all the manner of occurrence as disclosed by the prosecution has to be accepted, it is highly probable that the other appellants also would have suffered injuries in the occurrence. In his cross-examination, P.W.1 has stated as under: 5. If at all the manner of occurrence as disclosed by the prosecution has to be accepted, it is highly probable that the other appellants also would have suffered injuries in the occurrence. In his cross-examination, P.W.1 has stated as under: 5. “The character of incised wound is the same as that of punctured wound. The injuries found on the deceased may also be described as punctured wound. Whether the particular injury is incised wound or punctured wound, depend on the force applied, part of the body involved and the direction of object involving the body. If the weapon is striked against the body, horizontally, shallow linear wound is expected. Blood is expected to rush out of the injuries found on the deceased. I cannot say so whether the blood stains is expected on the assailant due to the fact of rush of blood out of the injury. Whether the clothing of assailant would be stained or not, depend on the distance of assailant from the victim. I have no idea of the length of the wound. No weapon was produced before either at the time of holding PM examination or evidence in court.” 19. The appellants, namely, Sanjay Cherwa and Lobo Cherwa have been convicted with the aid of section 34 IPC, however, the learned Sessions Judge has failed to record a specific finding on the common intention of these two appellants. Common intention as envisaged under section 34 IPC is not similar or the same intention. Section 34 IPC in itself is not a substantive offence but it makes other accused person(s) vicariously liable by the act of another. But then, to rope in another accused person(s) with the aid of section 34 IPC the prosecution must establish that the offending act was committed in furtherance of the common intention of all or that the other accused persons had knowledge that death may be caused in furtherance of their common intention. 20. From the evidences as laid by the prosecution during the trial, we find that all that the prosecution has been able to establish is that the appellants, namely, Sanjay Cherwa and Lobo Cherwa were present at the place of occurrence, at the time of occurrence. The motive behind the occurrence is said to be that the appellants suspected the deceased a witch. The motive behind the occurrence is said to be that the appellants suspected the deceased a witch. However, the surviving appellants have also intended to cause death of Sombari Kui has not been established by the prosecution. The prosecution has also failed to establish that Ramai Cherwa was carrying a weapon was known to other two appellants and while so, knowledge that death of Sombari Kui may be caused cannot be imputed to them. In the aforesaid state of evidence, we are of the opinion that conviction of the appellants, namely, Sanjay Cherwa and Lobo Cherwa under section 302/34 is not sustainable and, accordingly, it is set-aside. However, we hold that the prosecution has proved the charge under section 201/34 IPC. 21. Mr. Abhay Kr. Tiwari, the learned APP states that both the appellants have undergone custody of more than 10 years. They are on bail and, accordingly, they are discharged of liability of the bail-bonds furnished by them. 22. In the result, Criminal Appeal (D.B.) No.126 of 2001 is partly allowed. 23. This Court appreciates the efforts of Ms. Saumya Pandey, the learned Amicus for her able assistance rendered to the Court. 24. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). She shall be paid Rs.5500/-for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 25. Let the lower-court records be transmitted to the court concerned, forthwith.