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2020 DIGILAW 294 (JHR)

Indrajeet Solanki @ Indra v. State Of Jharkhand

2020-02-13

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2020
JUDGMENT Shree Chandrashekhar, J. - Three persons, namely, Surendra Karmali @ Suren, Indra @ Indrajeet Solanki and Ramdeo @ Bamdeo Manjhi were named by the informant as the assailants of her husband and brother-in-law. On the basis of the fard-beyan of Ramani Devi which was recorded on 10.10.2008 at about 10:00 a.m. at Bandhtola, Ajaygarh, Silli P.S Case No.72 of 2008 has been registered against the above-named accused persons for committing murder of Baidyanath Karmali and Sukhram Karmali. After the investigation a charge-sheet was filed against them and they have faced the trial on the charge under section 302/34 of the Indian Penal Code. 2. During the trial the prosecution has examined 14 witnesses; the informant is P.W 3. 3. The defence taken by the accused persons was that Baidyanath Karmali and Sukhram Karmali were persons of bad character and they were quarrelling with the villagers and some times assaulting them and that is the reason they were killed by the villagers and not by the appellants. 4. The accused persons have examined 3 witnesses in support of their defence. 5. The prosecution witnesses - P.W1, P.W 2, P.W 6, P.W 7, P.W 8, P.W 9, P.W 10 and P.W 11 - are hearsay witnesses. P.W 1, P.W 2, P.W 6 and P.W 8 were working at Durga Puja pandal on 09.10.2008. In the evening of 09.10.2008 some of them were preparing prasad and watching television when brother of the village chowkidar informed them about murder of Badyanath Karmali and Sukhram Karmali. P.W 4 and P.W 5 are the inquest witnesses and P.W 7, P.W 10 and P.W 11 have come to know about murder of Baidyanath Karmali and Sukhram Karmali the next morning. They have also seen their dead bodies in the courtyard of Surendra Karmali. P.W 9 is son of Baidyanath Karmali and at the time of the occurrence in the night of 09.10.2008 he was working in a hotel at Muri. He has received a telephonic information from the village chowkidar , namely, Kameshwar Karmali and then came to his house where he has found his mother weeping. He was told that Surendra Karmali @ Suren, Indra @ Indrajeet Solanki and Ramdeo @ Bamdeo Manjhi have killed his father. 6. The learned Sessions Judge has found the informant a reliable and trustworthy witness. 7. He was told that Surendra Karmali @ Suren, Indra @ Indrajeet Solanki and Ramdeo @ Bamdeo Manjhi have killed his father. 6. The learned Sessions Judge has found the informant a reliable and trustworthy witness. 7. In her fard-beyan the informant has stated that last night at about 8:00 p.m. her cognate Surendra Karmali came to her house and started abusing her brother-in-law. There was a land dispute between Surendra Karmali and Sukhram Karmali, her brother-in-law. At that time her husband was trying to pacify them, but, in the mean-time Indra @ Indrajeet Solanki and Ramdeo @ Bamdeo Manjhi came there and all of them dragged her brother-in-law to their house. Her husband had also followed them. Suddenly, the accused persons started assaulting her husband and brother-in-law with a sharp cutting weapon and by the time she reached there she found that her husband and brother-in-law have died. By raising hullah she has given information about the occurrence to the villagers. In the court she has reiterated that it was about 8:00 p.m. to 9:00 p.m in the evening when a quarrel took place between Surendra Karmali and her brother-in-law. She has stated that the accused persons started a quarrel and forcibly took away her brother-in-law to their house. Her husband was trying to pacify them and has followed them to their house. She has claimed that the accused persons have killed her husband and brother-in-law. She has further deposed that she has given information about the occurrence to the village chowkidar and the whole night they were guarding the dead bodies. She has affirmed in the court that her fard-beyan was read over to her and she has understood the contents of her fard-beyan . 8. Mr. Avishek Prasad, the learned counsel for the appellants referring to the statement of the informant in her examination-in-chief, whereunder she has stated that after she received the information she had gone to the house of the accused persons where she has seen the dead body of her husband and brother-in-law, submits that on her own saying the informant is not an eye-witness ( fQj tc e>s ekye gvk rks eSa lju ds ?kj x, rks n[ks fd ejs ifr c|ukFk vkSj l[kjke nkuksadh gR;k rhuksa vkjksfir&vfHkDrksa us dj nh FkhA ) 9. Mr. Mr. Satish Kumar Keshri, the learned A.P.P has contended that conviction of an accused can be recorded on the basis of testimony of a solitary eye-witness and since the testimony of the informant of this case is cogent and consistent the judgment of conviction of the appellants is well-founded. The learned A.P.P has relied on the decision in '' Prithipal Singh and others Vs. State of Punjab'' reported in (2012) 1 SCC 10 . 10. The informant is wife of the deceased Baidyanath Karmali. Her presence in her house in the evening of 09.10.2008 is natural. In her cross-examination she has stated that she was sitting at her doors when the accused persons came to her house. She has also stated that the house of her brother-in-law is adjacent to her house. During her cross-examination nothing material could be elicited by the defence and she has remained unshaken on complicity of the accused persons in the occurrence. In Prithipal Singh case, the Supreme Court has observed that the time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It has been held that there is no legal impediment in convicting a person on the sole testimony of a single witness. The informant has seen the accused persons coming to her house and dragging her brother-in-law to their house and in a short while thereafter she has found her husband and brother-in-law dead inside the house of Surendra Karmali. Even assuming that she has not seen the accused persons actually assaulting her husband and brother-in-law, her evidence on last-seen-together satisfies the proximity test. There was no intervening circumstance and within moments after the accused persons have forcibly taken away her brother-in-law inside the house of Surendra Karmali the dead bodies of her husband and brother-in-law have been found. The informant has stated that her house is at a distance of about 4-5 steps away from the house of Surendra Karmali. There was a land dispute between Surendra Karmali and Sukhram Karmali and for that a quarrel has taken place between them. The medical evidence also suggests homicidal death of Baidyanath Karmali and Sukhram Karmali. 11. The informant has stated that her house is at a distance of about 4-5 steps away from the house of Surendra Karmali. There was a land dispute between Surendra Karmali and Sukhram Karmali and for that a quarrel has taken place between them. The medical evidence also suggests homicidal death of Baidyanath Karmali and Sukhram Karmali. 11. Under section 106 r/w section 114 of the Indian Evidence Act, 1872 a presumption would thus arise that the accused persons have committed murder of Baidyanath Karmali and Sukhram Karmali. The overt acts on the part of Surendra Karmali and the accused persons dragging Sukhram Karmali to the house of Surendra Karmali would reflect intention of the accused persons. In Prithipal Singh case the Supreme Court has observed that section 106 of the Evidence Act would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts has offered any explanation which might drive the court to draw a different inference. During their examination under section 313 of the Code of Criminal Procedure the appellants have not offered an explanation as to under what circumstances dead bodies of Baidyanath Karmali and Sukhram Karmali have been found inside the house of Surendra Karmali. 12. The above being the factual scenario, we find that the prosecution has established that the deceased persons were lastly seen in the company of the accused persons and soon thereafter their dead bodies have been found in the courtyard of Surendra Karmali. However, we are of the opinion that conviction of the appellants under section 302/34 of the Indian Penal Code for committing murder of Baidyanath Karmali and Sukhram Karmali is not proper and sustainable in law. 13. According to the informant, Surendra Karmali came to her house first and started a quarrel with her brother-in-law. At that juncture, the appellants were not present with Surendra Karmali. After a quarrel has started between Surendra Karmali and Sukhram Karmali the appellants have come to the house of the informant. The allegation against them is that they along with Surendra Karmali have dragged Sukhram Karmali to the house of Surendra Karmali. From testimony of the informant it appears that she has not seen the appellants actually assaulting her husband and brother-in-law. The allegation against them is that they along with Surendra Karmali have dragged Sukhram Karmali to the house of Surendra Karmali. From testimony of the informant it appears that she has not seen the appellants actually assaulting her husband and brother-in-law. During her cross-examination she has stated that when she had gone to the house of Suren she has seen the dead bodies of her husband and brother-in-law. The learned Sessions Judge has recorded demeanor of the witnesses. In his opinion it seemed to him that the informant does not understand Hindi properly. But still, the learned Sessions Judge has permitted cross-examination of the informant in Hindi. Dr. Sabrina Kamal, who has prepared the autopsy report of Baidyanath Karmali and Sukhram Karmali, has found one single injury on both of them. In his opinion, the death has been caused due to shock and hemorrhage on account of the incised wounds. But from the prosecution''s evidence, particularly, testimony of the informant it cannot be established who amongst the accused persons has assaulted Baidyanath Karmali and Sukhram Karmali. Therefore, we hold that the prosecution has also failed to establish that the appellants who had no grudge against the deceased persons have shared common intention with Surendra Karmali to commit murder of Baidyanath Karmali and Sukhram Karmali and the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code against the appellants. 14. The injuries found on Baidyanath Karmali and Sukhram Karmali were grievous in nature. According to the doctor those injuries were caused by a heavy sharp cutting weapon. A heavy sharp cutting weapon would be a dangerous weapon in terms of section 326 of the Indian Penal Code and, therefore, the appellants are liable to be convicted under section 326 of the Indian Penal Code for voluntary causing grievous injuries to Baidyanath Karmali and Sukhram Karmali by dangerous weapons which were likely to cause death [refer, '' Vijay Singh and another Vs. State of Madhya Pradesh'' reported in (2014) 12 SCC 293 and ''Rama Meru and another Vs. State of Gujarat'' reported in 1993 Supp(1) SCC 315 ]. 15. Accordingly, the judgment of conviction and the order of sentence of R.I for life and fine of Rs.5,000/- inflicted upon the appellants under section 302/34 of the Indian Penal Code, both dated 08.06.2010, in Sessions Trial No.216 of 2009 are set-aside. 16. State of Gujarat'' reported in 1993 Supp(1) SCC 315 ]. 15. Accordingly, the judgment of conviction and the order of sentence of R.I for life and fine of Rs.5,000/- inflicted upon the appellants under section 302/34 of the Indian Penal Code, both dated 08.06.2010, in Sessions Trial No.216 of 2009 are set-aside. 16. The appellants are convicted and sentenced to R.I for ten years under section 326 r/w section 34 of the Indian Penal Code. 17. Mr. Satish Kumar Keshri, the learned A.P.P states that the appellants are in custody for more than ten years. 18. Accordingly, the appellant, namely, Indrajeet Solanki @ Indra in Criminal Appeal (D.B) No.1092 of 2010 and the appellant, namely, Ramdeo @ Bamdeo Manjhi in Criminal Appeal (D.B) No.1094 of 2010, who are in custody, shall be released forthwith if not required in connection to any other criminal case. 19. Criminal Appeal (D.B) No.1092 of 2010 and Criminal Appeal (D.B) No.1094 of 2010 are partly allowed, in the aforesaid terms. 20. Let lower-court records be sent to the court concerned forthwith.