Johan Minz vs The State of Jharkhand

Dhirubhai Naranbhai Patel, J.—When the matter is called out, earlier appointed Amicus Curiae, Shri Sanjay Kumar Chaturvedy, is absent. He was appointed as an Advocate vide order dated 21.1.2003. This is a final hearing of this Criminal Appeal. We have appointed Smt. Priya Shrestha, Advocate, who is in the panel of Jharkhand State Legal Services Authority as Amicus Curiae. She has argued out the case at length.

The present appeal has been preferred against the judgment and order of conviction and sentence passed by the Vth Addl. Judicial Commissioner, Ranchi in S.T. No. 465 of 2000. This appellant has been convicted for life imprisonment for the offence punishable u/s 302 of the I.P.C. for causing murder of Turiya Minz vide order dated 20/21st, August, 2002.

The case of the prosecution is that:-

On 18.04.2000 at 17.15 hrs i.e. 5.15 P.M. the informant Puso Orain (P.W.-2) gave her fardbeyan to police at Emergency Gate of R.M.C.H., that her elder brother Turiya Minz (deceased aged about 60 years old had returned to his home at 10.30 A.M. after roaming. The informant brother and Johan Minz have common courtyard before their house. The informant further alleged that when Turiya Minz returned to his house, he told to his cousin Johan Minz that he never took care of him and he always bothered about his children only and when he asked cane bamboos from the Johan Minz then he refused. Thereafter there was a scuffle between informant brother and Johan Minz and then Johan Minz ran to his house and came with Axe (Tangi) and to kill informant brother, hit in his head and neck, thrice with Axe (Tangi) and due to injury, informant brother fall down and at that time it was 11:30 A.M. Thereafter informant took her brother to her house and then to Bero Hospital for his treatment and from there Doctor referred him to R.M.C.H., Ranchi for better treatment and informant took her brother to R.M.C.H. but at the emergency gate of R.M.C.H. her brother died. The informant further alleged that the incident occurred due to the demand of bamboos.

Nine witnesses were examined by the prosecution:

It is submitted by the counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed/set aside. It is further submitted by the counsel for the appellant that there are several eye witnesses of the incident, as per the Paragraph No. 17 of the depositions given by P.W.-2, who are Birsa, Parcham and Kali, but they have not been examined by the prosecution. Thus, the crucial independent witnesses have not been examined by the prosecution. This aspect of the matter has also not been properly appreciated by the learned trial court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is also submitted by the counsel for the appellant that the so called eye witnesses of the incident are the relatives of the deceased. The names of P.W.-3 and P.W.-4 have not been mentioned and referred in the F.I.R. by the informant (P.W.-2). Moreover, there are several inconsistencies between ocular evidence and the medical evidence. As per the so called eye witnesses, there are maximum three blows given by the appellant upon the deceased, whereas, looking to the medical evidence given by the P.W.-1, Dr. Saroj Kumar, there are several injuries upon the body of the deceased. This aspect of the matter has also not been properly appreciated by the learned trial court, and therefore, the so called witnesses examined by the prosecution are not trustworthy and unreliable. It is also submitted by the counsel for the appellant that the so called Seizure List of the weapon as well as the blood stained earth are also not proved by the prosecution looking to the depositions given by the P.W.-9. There is no F.S.L. Report of the so called blood stained weapon and blood stained earth on the record of the learned trial court. This aspect of the matter has also not been properly appreciated by the learned trial court and the prosecution has failed to prove the offence committed by this appellant beyond reasonable doubt, and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside.

It is submitted by the learned A.P.P. that no error has been committed by the learned trial court in appreciating the evidences on record. It is further submitted by the learned A.P.P. that in this case immediate is the F.I.R. given by P.W.-2, although necessary details have been given by this P.W.-2 in her fardbeyan who is sister of the deceased. Moreover, looking to the deposition given by the P.W.-2, she has clearly stated that this appellant has caused murder of the deceased by giving more than one blow by Tangi-sharp cutting instrument. The deceased was a blind person. It is submitted by the A.P.P. that this P.W.-2 has also stated in her deposition about the presence of other eye witnesses, who are P.W.-3 and P.W.-4, whose presence at the scene of offence is also a natural one. Similarly, other eye witnesses, P.W.-3 and P.W.-4 have also narrated clearly the role played by this appellant accused in causing murder of the deceased and looking to their cross examination, their examination in chief remained intact and as it is. Moreover, the deposition given by the eye witness is getting enough corroboration from the medical evidence given by P.W.-1-Dr. Saroj Kumar, who has carried out post mortem on the body of the deceased, which is at Ext. 1. It is further submitted by the A.P.P. that looking to the depositions given by the P.W.-7 and P.W.-8, who are police witnesses, they have proved the fardbeyan and the F.I.R. and the Inquest Report and Seizure List and there is no inconsistency in the case of the prosecution, even the slightest, looking to the depositions given by the P.W.-2, P.W.-3, P.W.-4, P.W.-7, and P.W.-1 and P.W.-6 have proved the Inquest Report and though P.W.-5 is hearsay witness, he has proved the time of occurrence, the place of occurrence, which was having a pool of blood. Thus, the prosecution has proved the offence beyond reasonable doubt to have been committed by this appellant accused. So far as non examination of Birsa, Parcham and Kali is concerned, it is submitted by the A.P.P. that looking to the Paragraph No. 21 of the depositions of P.W.-2, Birsa and Parcham have favoured this accused, therefore, they were not examined, on the contrary, they could have been examined by the defence and so far as Kali is concerned, it is submitted by the A.P.P. that he is an outsider and stranger, he may not be in a position to identify the persons. It is also submitted by the learned A.P.P. that this Court is not concerned with the quantity of the witnesses, but the Court is more concerned with the quality of the evidences. As many as three witnesses have been examined and looking to their cross examination, there is no inconsistency in their depositions and therefore also, there was no need for prosecution to examine further more eye witnesses. Thus, it is submitted by the A.P.P. that non examination of Birsa, Parcham and Kali is not fatal to the prosecution. It is submitted by the learned A.P.P. that looking to the evidences on record and also looking to the recovery of the blood stained weapon at the behest of this appellant accused, the prosecution has proved the offence of murder committed by this appellant beyond reasonable doubt, therefore, this Appeal may not be entertained by this Court.

Having heard the counsel for both the sides and looking to the evidences on record, we see no reason to entertain this Criminal Appeal mainly for the following facts, reasons and evidences on record and the judicial pronouncements:

(i) It is a case of the prosecution that P.W.-2, who is sister of the deceased, had given the fardbeyan to police at R.M.C.H. Hospital at Ranchi that her elder brother Sri Turiya Minz, aged about 60 years when returned to his home at about 10:30 A.M. on 18.4.2000, this appellant, who is staying in the common courtyard with Turiya Minz, ran at the house of Turiya Minz and Turiya Minz stated to him that he is not taking care of Turiya Minz and he is taking care of his children. There was also a dispute about the cane bamboo. There was scuffle between the two brothers and during this scuffle, this appellant ran to his house and came out with Tangi-sharp cutting instrument and gave blows on the head and neck of Turiya Minz and the informant-P.W.-2, took her brother to her house and then to Bero Hospital for his treatment, from where, doctor referred him to R.M.C.H. Hospital at Ranchi for further treatment and nearby the gate of R.M.C.H. Hospital, brother of P.W.-2 expired. Upon this fardbeyan , F.I.R. was lodged. Investigation had taken place. Statements of several witnesses were recorded by the Investigating Officer, who is P.W.-8 namely Amit Lodha and the charge sheet was filed against this appellant and the case was committed to Sessions Court being Sessions Trial No. 465 of 2000 and on the basis of the evidences of the prosecution witnesses, P.W.-1 to P.W.-9, the learned trial court has convicted and sentenced this appellant for life imprisonment for causing murder of the deceased by this appellant.

(ii) Thus, it appears that P.W.-2 is an informant and the eye witness of the incident. She is the sister of the deceased, a close relative and we have therefore, perused her evidence closely. Looking to her cross examination, she has closely narrated the role played by this appellant in causing murder of the deceased. She has proved the date of occurrence, time of occurrence, and the place of occurrence, the weapon used in causing murder of the deceased and also manner in which the whole occurrence has taken place. This witness has stated the whole incident before the learned trial court without any exaggeration and without any material omission, improvement and contradiction. Her house is opposite to the house of this accused. Her presence at the scene of offence is natural one. Looking to her cross examination, nothing is coming out in favour of this appellant accused, on the contrary, she has confirmed what she has stated in examination in chief. Looking to the depositions of P.W.-2, she has also stated the name of other eye witnesses, who are P.W.-3 and P.W.-4. She has also stated that the deceased Turiya Minz was a blind person. Thus, she is trustworthy and reliable witness and merely because she is relative of the deceased, we are not inclined to brush aside her deposition. Cross examination is a weapon in the hands of the defence. Looking to the cross examination of this witness, she has confirmed her whole narration about the murder committed by this appellant accused and we see no reason to disbelieve this witness and the learned trial court has also not committed any error in appreciating the depositions of this P.W.-2. It is contended by the counsel for the Appellant that Birsa, Parcham and Kali, who were present at the scene of occurrence, have not been examined by the prosecution. Non examination of these eye witnesses is fatal to the case of the prosecution. This contention is also not accepted by this Court and not helpful to the appellant. Looking to the Paragraph No. 21 of the deposition of P.W.-2, it appears that Birsa and Parcham were in favour of this accused. Therefore, they have not been rightly examined by the prosecution. In fact, Birsa and Parcham could have been examined by the defence. So far as Kali is concerned, he is an outsider. The presence of Kali at the scene of occurrence is not stated by this P.W.-2, infact, Kali was at the house of P.W.-2, who is the son-in-law. Moreover, when there are more than one witnesses examined by the prosecution, who are P.W.-2, P.W.-3 and P.W.-4, there was no need of quantity of witnesses before the learned trial court. If the witnesses are stating clearly about the whole incident with any exaggeration, improvement and contradiction, and when they are trustworthy and reliable, there is no need for the prosecution to examine several other witnesses.

(iii) Looking to the deposition given by the P.W.-3, who is Mahadeo Oraon. He is an eye witness of the occurrence. Looking to his examination before the learned trial court, he has also clearly narrated the whole incident that the appellant has caused murder of the deceased by giving Tangi blows. This witness is also proving the date of occurrence, time of occurrence and place of occurrence. This witness is also referring the presence of P.W.-2 and P.W.-4 as witnesses. Looking to his cross examination, it appears that he has narrated that there was some dispute between the deceased and the appellant. It has also been stated in the cross examination by this witness that the deceased was blind person. He has also stated in his cross examination in Paragraph No. 12 that there was initially some scuffle between these two i.e. the appellant and the deceased and he separated both of them and thereafter he had gone to his house. Thus, looking to the Paragraph No. 11 in cross examination, we see no reason to disbelieve this witness. He has also identified the appellant accused in the Court. Similarly, looking to the deposition given by the P.W.-4, he has also narrated that this appellant has caused murder of the deceased by the weapon-Tangi. Even in cross examination of this witness-P.W.-4, she has stated in Paragraph No. 8 of the cross examination that she has seen this appellant causing the injuries by Tangi. Thus, looking to her cross examination, nothing is coming out in favour of this appellant accused. It appears that P.W.-4 is an independent witness and she has, without any exaggeration, omission or contradiction, given the narration of the whole incident before the learned trial court. So far as the place of occurrence is concerned, all the three witnesses have narrated the same, which is opposite to the house of the deceased. The murder has taken place and there was a pool of blood. Thus, no error has been committed by the learned trial court in appreciating the evidences of P.W.-2, P.W.-3 and P.W.-4 and they are trustworthy and reliable looking to their depositions before the learned trial court.

(iv) Looking to the depositions given by the P.W.-7 an P.W.-8, who are the police witnesses, they have proved the fardbeyan , which is at Ext. 3, the endorsement upon the fardbeyan by P.W.-8 is at Ext. 3. These two witnesses have also proved the Seizure List, which is at Ext. 4 of blood stained weapon and the blood stained earth. These witnesses have also proved the Ext. 5 and the confessional statement of the accused, which is leading to the recovery of the weapon. Thus, u/s 27 of the Indian Evidence Act, 1872, the information received from the accused that he is in the police custody, to the extent to which it leads to the recovery of blood stained weapon, is admissible in evidence. Thus, part of Ext. 5, which is a confessional statement, leads to the recovery of the blood stained weapon, which is referred in the Seizure List at Ext. 4, is a relevant and it is also a most crucial circumstance which provides enough corroboration too to the depositions given by the P.W.-2, P.W.-3 and the P.W.-4. These two police witnesses have narrated in detail the investigation carried out by them. They have proved the place of occurrence beyond reasonable doubt. They have also seized the blood stained weapon and the blood stained earth. Thus, the depositions given by the P.W.-7 and P.W.-8, who are the police witnesses, is also corroborative too to the depositions given by P.W.-2, P.W.-3 and P.W.-4, who are eye witnesses. This aspect of the matter has also not been properly appreciated by the learned trial court. These witnesses have also proved the material Exhibit Nos. 1 and 2, which are the blood stained weapon and blood stained earth, which were brought on the record and they were accepted by the leaned trial court.

(v) Looking to the depositions given by P.W.-1, Dr. Saroj Kumar, who has carried out the post mortem on the body of the deceased, which is at Ext. 1., the following were the injuries observed by him, upon the body of the deceased:

The injuries sustained by the deceased is as below:

Injuries:

Stitched Wounds (Lacerated)

(i) 3 x 1 c.m. x Bone deep over right parietal Region of Head.

(ii) 2 x 1 c.m. x Bone deep, 3 x 1 c.m. x Bone deep over Right Tempero Parietal region of Head

(iii) 6 x 1/2 c.m. x Bone deep over left Temporo Parietal Region of Head with fracture of underline Bone.

(iv) 5 x 1 c.m. x soft tissue over back of Neck.

Incised would (Stitched)

(v) 3 x 1 c.m. x Bone deep on left side of occipital Region of Head cutting the underline Bone, Dura meter matter and Brain.

Internal Injuries:

There was contusion of Right Temporo Parietal Scalp with mosaic fracture of Right Temporo Parietal Bone. There was presence of Blood and blood clots over both sides of Brain.

Opinion-All the Injuries were ante mortem. Incised wounds was caused by heavy sharp cutting weapon and rest by hard and blunt substance. Death was due to Head Injury.

Time-12 to 48 hours from the time of P.M. examination.

In view of the aforesaid injuries explained by P.W.-1, it appears that there are several injuries upon the head and neck. The narration of these injuries are corroborative too to the narration of the whole incident given by the witnesses, who are P.W.-2, P.W.-3 and P.W.-4, those injuries were also capable of being caused by sharp cutting weapons, which are incised wound, injuries were ante mortem in nature. Death was caused due to head injury. Thus, the deposition given by P.W.-1 is corroborative to the depositions of the eye witnesses. It has been submitted by the counsel for the appellant that in the fardbeyan as well as in the deposition given by P.W.-2-informant, that only three injuries were caused by this appellant, whereas, in the Post mortem report, there are four injuries. We see no reason to give any benefit to this appellant accused for this discrepancy. When several injuries are being caused by this appellant, there may be slight error in narration on the part of the eye witnesses and we do not expect from the eye witnesses of the photographic memory. These witnesses are rustic witnesses. Evidence in the Court of law, depends upon:

(a) Capacity of observation of the witnesses

(b) Capacity of memory of the witnesses, and

(c) Capacity of reproduction during his deposition in the trial court.

(vi) Thus, it is too much to expect from these rustic witnesses that they must give every minute details of the assault. Suffice it to say here that at the place of occurrence there was pool of blood as stated by the witnesses and also as stated by P.W.-8 in his Paragraph No. 14. There was pool of blood, as per the prosecution witnesses also, at the place of occurrence. Looking to the overall depositions given by the eye witnesses, who are EW.-2, P.W.-3, and P.W.-4 and also looking to their cross examination and looking to the F.I.R., there is no inconsistency between the medical evidence and the ocular evidence as a whole. These witnesses are giving their evidence in the trial court, after approximately 52 weeks. The place of occurrence has also been properly proved by P.W.-8 in Paragraph No. 3 of his deposition.

(vii) It is submitted by the counsel for the appellant that the P.W.-9 has not supported the case of the prosecution and therefore, the Seizure List is not proved. This contention is also not accepted by this Court mainly for the reason that so far as the Seizure List is concerned, the police is also an eye witness who is P.W.-8. The evidence cannot be read in isolation. Looking to the depositions of P.W.-9, he admits that his signature upon the Seizure List, but, in cross examination, he has not supported the case of the prosecution. It ought to be kept in mind that the evidence is to be evaluated by the Court in totality. One or two sentences in cross examination by one of the witnesses, cannot be appreciated without looking to the other evidences on record. The definition of the word "proved" is given in Indian Evidence Act, 1872. "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Thus, when the fact is said to have been proved that all depends upon the appreciation of the evidence by the learned trial court. We, looking to the evidences on record, we believe that the Seizure List is proved by the prosecution on the basis of the other evidences on record. Proof of the fact depends upon the subjective satisfaction of a Judge based, upon an objective analysis of evidence on record. We are, hereby, satisfied that the prosecution has proved the Seizure List even if the P.W.-9 is taking slight deviation in his deposition before the learned trial court, and therefore, the contention raised by the counsel for the appellant is not accepted by this Court. Thus, looking to the over all evidences on the record of the aforesaid prosecution witnesses, the prosecution has proved the offence of murder committed by the appellant beyond reasonable doubt and no error has been committed by the learned trial court in convicting and sentencing the appellant for causing murder of the deceased.

We see no reason to entertain this Appeal. We, hereby, upheld the decision rendered by the Vth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 465 of 2000. The Appeal is, hereby, dismissed.