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2022 DIGILAW 693 (JHR)

Lobin Bera, S/o. Purno Bera v. State of Jharkhand

2022-06-20

AMBUJ NATH, RONGON MUKHOPADHYAY

body2022
JUDGMENT : 1. Heard Mrs. Shilpi Shandil, learned counsel appearing for the appellant nos. 1 and 2, Mr. Pran Pranay, learned counsel for the appellant no. 3 and Mr. Bhola Nath Ojha, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 25.07.2013 (sentence passed on 29.07.2013) passed by Sri Sachindra Kumar Pandey, learned District & Additional Sessions Judge-II, Ghatshila in S.T. No. 341/2010, whereby and whereunder the appellants have been convicted for the offence u/s 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life along with a fine of Rs. 5,000/-and in default of payment of fine to undergo S.I. for three months. 3. The First Information Report is based upon the fardbeyan of Kavita Bera recorded on 16.01.2010 wherein, it has been alleged that when she was returning home after having a bath in the village pond she had seen near a well situated in Matihana, Chakulia metalled road Lobin Bera, Konka Bera and Srikanto Bera @ Tubung Bera making a concerted assault upon her father-in-law Bhuwan Bera by fists and legs. The accused Konka Bera started pressing the neck of her father-in-law and although she raised an alarm and pleaded with them not to do such act but such pleadings fell on deaf ears and ultimately her father-in-law who is an aged person died. On hearing the cry of alarm, people from the locality had gathered and with their assistance the body of her father-in-law was taken to his house and the incident was informed to the husband and mother-in-law of the informant. The reason for the occurrence is that about two years back her father-in-law was assaulted by Konka Bera for which a case was sought to be instituted in the Police Station against Konka Bera but it could not reach its finality due to the pressure created by the leaders of the society. It has been alleged that due to previous enmity the father-in-law of the informant was done to death by the accused persons. It has been alleged that due to previous enmity the father-in-law of the informant was done to death by the accused persons. Based on the aforesaid allegations Bahragora P.S. Case No. 6/2010 was instituted against Lobin Bera, Konka Bera and Srikanto Bera @ Tubung Bera for the offence punishable u/s 302/34 of the I.P.C. On conclusion of investigation charge-sheet was submitted against all the three named accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 341/2010. Charge was framed against the accused persons for the offence u/s 302 of the I.P.C. which was read over and explained to them to which they pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case has examined as many as twelve witnesses. 5. P.W.1 (Patitpawan Singh) and P.W.2 (Tarak Bera) have not supported the prosecution case and have been declared hostile by the prosecution. 6. P.W.3 (Rahul Shankar Bajpai) has deposed that the incident had taken place 8-9 months back. He had returned from the college when he came to know that Bhuwan Bera has died. He had seen the dead body but he does not know as to who had committed the murder. 7. P.W.4 (Kashinath Bera) has been tendered by the prosecution. 8. P.W.5 (Suria Bera @ Haria Bera) and P.W.6 (Sudam Bera) have both been declared hostile by the prosecution. 9. P.W.7 (Snehlata Bera) has deposed that the incident is of 1½ years back. It was about 2:00 P.M. She had gone with her husband to the field but she returned back alone. She has deposed that when she came home her daughter-in-law informed that Srikanto Bera, Lobin Bera and Konka Bera had assaulted her husband. When she went to see her husband she found him lying dead near the well. She has further stated that about 2 years back the same accused persons had assaulted her husband. On the date of the incident all the three accused had a quarrel with her son. In cross-examination, she has deposed that all the three accused are nephews to her in relation. It is true that her daughter-in-law had informed her that all the three accused persons had committed the murder of her husband. She has further deposed that the entire villagers had assembled at the place of occurrence. 10. In cross-examination, she has deposed that all the three accused are nephews to her in relation. It is true that her daughter-in-law had informed her that all the three accused persons had committed the murder of her husband. She has further deposed that the entire villagers had assembled at the place of occurrence. 10. P.W.8 (Saro Bera) has been declared hostile by the prosecution. 11. P.W.9 (Kavita Bera) is the informant who has deposed that the occurrence is of 10 months back when she was returning home after having a bath in the pond when she had seen Juru Bera assaulting her husband and taking him to Baharagora Police Station. He was saying that her husband had teased his daughter. She has stated that Srikanto Bera, Lobin Bera and Konka Bera were assaulting her father-in-law Bhuwan Bera with fists and legs. Konka Bera had put a Gamchha on the neck of Bhuwan Bera and pressed his neck. Her father-in-law died. She had brought the dead body of her father-in-law home with the assistance of Murli Bera. She has also stated that prior to this incident also Konka had committed assault upon her father-in-law. As per her evidence there was a land dispute between both sides from before. In her cross-examination, she has stated that she had not accompanied her husband to the Police Station when he was being taken there by Sadhu Bera and Juro Bera. Juro Bera is the brother of Konka and Nawin and Srikanto is the nephew of Konka and Nawin. She has stated that the case against her husband was instituted on the day when her father-in-law was murdered. Her mother-in-law had also witnessed the incident of murder. When she had tried to save her father-in-law none had assaulted her. Her father-in-law was not assaulted by Lathi, Danda or Sword. 12. P.W.10 (Dr. Chandra Mohan Kumar) was posted at P.H.C., Karadubu, Ghatsila on 17.01.2010 on which date he had conducted autopsy on the dead body of Bhuwan Bera and had found the following injuries on his body: External Injuries-Ligature mark at neck, above thyriod cartilage situated obliquely from right mandibular angle to left mandibular angle anteriorly, and 2 cm in bredth. Internal Injuries-(a) Fracture of thyriod cartilage. (b) Rupture of heart, spleen, liver, right kidney, stomach & small intestine. Internal Injuries-(a) Fracture of thyriod cartilage. (b) Rupture of heart, spleen, liver, right kidney, stomach & small intestine. The death was opined to be due to asphyxia, haemorrhage and shock caused by the above mentioned injuries. He has proved the postmortem report which has been written and signed by him and which has been marked as Exhibit-1. 13. P.W.11 (Karma Bera) has not supported the prosecution case and accordingly has been declared hostile by the prosecution. 14. P.W.12 (Fransis Xavier Tigga) is the Investigating Officer of the case who has deposed that on receiving the information about the death of a person due to assault he had reached the place of occurrence and recorded the fardbeyan of Kavita Bera. He has proved the fardbeyan which is in his handwriting and which bears his signature and which has been marked as Exhibit-2. Kavita Bera had put her thumb impression over the same and Patitpawan and Rahul Shankar Bajpai had signed over it. He has proved the signature of the Munshi M. Mishra and his own over the formal First Information Report which have been marked as Exhibit-3 and 3/1. He had taken the statement of Kavita Bera and had also prepared the inquest report. He had recorded the statement of Patitpawan who had stated that the family members of Bhuwan Bera had disclosed that Lobin Bera and his brothers had committed the murder of Bhuwan Bera. The age of the deceased was 80-85 years. He had also come to know that there was an enmity existing between both the sides and as a retaliation to the teasing done by the son of Bhuwan Bera he was done to death. There was a frequent quarrel between both the sides due to a land dispute. He has stated that the witness Rahul Shankar Bajpai had also disclosed about the previous enmity due to which Bhuwan Bera was murdered. This witness has described the place of occurrence which is an open field near Matihana Middle School. He had taken the statements of Karma Bera, Sharad Bera, Salima Bera, Snehlata Bera, Sudam Bera and Kashi Bera and all have led credence to the involvement of the accused persons as alleged. On conclusion of investigation, he had submitted charge-sheet. In cross-examination, he has stated that there are several houses and a School near the place of occurrence. He had taken the statements of Karma Bera, Sharad Bera, Salima Bera, Snehlata Bera, Sudam Bera and Kashi Bera and all have led credence to the involvement of the accused persons as alleged. On conclusion of investigation, he had submitted charge-sheet. In cross-examination, he has stated that there are several houses and a School near the place of occurrence. He has stated that he had not recorded the statements of Krishna Marwari, Rehma Murmu, Fakir Manjhi and Hari kui though he had twice gone to their houses. Kavita Bera had given a statement that earlier also the accused persons had assaulted her father-in-law but due to the influence of the local politicians no case could be instituted. 15. The statements of the accused persons were recorded u/s 313 Cr.P.C. to which they have merely denied their involvement in the incident. 16. It has been submitted by Mrs. Shilpi Shandil, learned counsel appearing for the appellant nos. 1 and 2 that none of the independent witnesses have supported the case of the prosecution. It has been submitted that P.W.9 is a highly interested witness being the daughter-in-law of the deceased and though she claims herself to be an eye-witness but there are major contradictions in her evidence. Though P.W.9 has stated that P.W.7 had also witnessed the occurrence but such statement has not been corroborated by P.W.7. It has been submitted that Murli Bera's wife has been named by P.W.9 as the lady who had assisted in bringing the dead body of Bhuwan Bera home but she though being a key witness has not been examined by the prosecution. There are also contradictions in the evidence of P.W.9, if juxtaposed with the evidence of P.W.7 as it appears that the deceased was present at two different places at the same time. She has submitted that the place of occurrence as described by P.W.9 has not been proved by P.W.12. It has also been submitted that the appellant nos. 1 and 2 were not armed and the allegations against them are general and omnibus in nature. 17. Mr. Pran Pranay, learned counsel appearing for the the appellant no. 3 has reiterated what has been submitted by Mrs. Shilpi Shandil and has further added that the appellants have been implicated due to previous enmity. 18. Mr. 1 and 2 were not armed and the allegations against them are general and omnibus in nature. 17. Mr. Pran Pranay, learned counsel appearing for the the appellant no. 3 has reiterated what has been submitted by Mrs. Shilpi Shandil and has further added that the appellants have been implicated due to previous enmity. 18. Mr. Bhola Nath Ojha, learned A.P.P. has refuted the submissions advanced by the learned counsels for the appellants while submitting that the evidence of P.W.9 cannot be discarded on the ground of some minor inconsistencies and the defence has failed to elicit any major contradictions from P.W.9 which could have jeopardized the case of the prosecution. According to Mr. Ojha, the conviction can be based even on a solitary eye-witness account if the same is reliable and trustworthy. He has thus prayed that the present appeal be dismissed. 19. We have given our anxious consideration to the submissions advanced by the learned counsels for the respective sides and have also perused the Lower Court Records. 20. Admittedly, the entire case of the prosecution hinges upon the sole eye-witness account of P.W.9. In the First Information Report instituted by P.W.9., she has stated about witnessing the assault while she was returning home after having a bath in the pond. The First Information Report does not reveal the presence of any other person at the time of the incident except the appellants, P.W.9 and the deceased Bhuwan Bera. Though, P.W.9 in her evidence has stated about her mother-in-law (P.W.7) having witnessed the incident but such fact appears to have been contradicted by virtue of the evidence of P.W.7. Except the inclusion of P.W.7 within the canvas of eye-witnesses there is no other improvement made in her original depiction of the incident. The contention of the learned counsels for the appellants that the evidences of P.W.7 and P.W.9 indicates the presence of the deceased at two different places at the time of the incident is not based on any concrete evidence and the defence has failed to shake the credibility of P.W.7 and P.W.9. P.W.9 is very categorical in her evidence with respect to the manner of assault and the concerted way in which such assault had taken place. The assault was caused by the appellants with fists and slaps culminating in appellant no. 3 throttling him with a Gamchha. P.W.9 is very categorical in her evidence with respect to the manner of assault and the concerted way in which such assault had taken place. The assault was caused by the appellants with fists and slaps culminating in appellant no. 3 throttling him with a Gamchha. The postmortem report highlights the brutality of the assault and it corroborates to the hilt the manner of occurrence as depicted by P.W.9. The deceased was aged about 85 years as per P.W.12 though as per the postmortem report his age was 55 years. Admittedly, the deceased was unarmed. As per P.W.7 and P.W.9 the deceased was earlier also assaulted by the accused persons. Though he was assaulted with fists and legs before being strangulated with a Gamchha by the appellant no. 3 but the savage and barbarous nature of assault left the deceased with a raptured heart, spleen, liver, right kidney, stomach and small intestine. Some of the ribs of the left side were also found fractured. 21. The trustworthiness of a solitary eye-witness was called into question in the case of “Vadivelu Thevar & Anr. versus State of Madras” reported in 1957 SCR 981 , in which it was held as follows: “11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that “no particular number of witnesses shall, in any case, be required for the proof of any fact”. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that “Evidence has to be weighed and not counted”. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that “Evidence has to be weighed and not counted”. Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.” 22. We have evaluated the evidence of the solitary eye-witness P.W.9 and we do not find any incongruity of such nature which would discard her testimony. The learned trial court has rightly convicted the appellants based on the sole testimony of P.W.9. 23. In “Virendra Singh versus State of M.P.” reported in 2010 8 SCC 407 , the factors necessary to be fulfilled to bring home the charge u/s 34 of the Indian Penal Code has been enshrined which reads as follows: “15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words “common intention” imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab. 16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record. 17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. 36. Unless common intention and participation are both present, this section cannot apply. 36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under Section 302 with the aid of Section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories : (1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike. 37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others. 38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. 39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent. 40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. 41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act. 42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.” 24. As has been noted above regarding the participation of the appellants a common intention is palpable. The deceased as per the evidence of P.W.7 and P.W.9 was earlier subjected to assault by the accused persons. The scenario depicted by the prosecution designates that all the accused shared a common platform with a premeditated design in the brutal assault of the deceased. It is also evident that the said assault was unprovoked with virtually no possibility of retaliation from a person who was unarmed and defenseless. 25. Thus from the entire circumstances, gathered from the evidence of the witnesses, especially that of P.W.9 and P.W.7, it leaves no room for doubt that all the appellants conjointly with a common intention had caused a brutal assault upon the father-in-law of the informant, the postmortem report signifying the brutality of the assault and in such fact circumstances, therefore, we are not inclined to interfere with the judgment and order of conviction and sentence dated 25.07.2013 (sentence passed on 29.07.2013) passed by Sri Sachindra Kumar Pandey, learned District & Additional Sessions Judge-II, Ghatshila in S.T. No. 341/2010, whereby and whereunder the appellants have been convicted for the offence u/s 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life along with a fine of Rs. 5,000/- and, accordingly this appeal is dismissed. 26. Since the appellant nos. 1 and 2 are on bail they are directed to surrender before the learned trial court immediately to serve out their sentence failing which the learned trial court shall activate coercive measures for apprehending the appellant nos. 1 and 2. 27. Pending I.As., if any, stand disposed off.