Full Judgment
Cr. APPEAL (D.B.) No. 824 OF2007 Against the judgment and order of conviction and sentence dated 6th June, 2007 passed by the then First Additional Sessions Judge, Chatra in Sessions Trial No. 122 of 2002. Digeshwar Mistry @ Digu Mistry, son of Late Dhanukdhari Mistry, resident of village- Tesar Chapa, P.S.- Tandwa, District - Chatra … Appellant Versus The State of Jharkhand … Respondent For the Appellant(s) : M/s. Abhay Kumar Chaturvedy, Md. Zaid Ahmad, Rajesh Kumar Singh For the Respondent State : Mr. Abhishek Kumar PRESENT HON’BLE MR. JUSTICE R. R. PRASAD HON’BLE MR. JUSTICE RAVI NATH VERMA By Court: This appeal is directed against the judgment of conviction and order of sentence dated 6th June, 2007 passed by the then First Additional Sessions Judge, Chatra in Sessions Trial no. 122 of 2002 whereby and whereunder the court having found the appellant guilty for committing murder of his brother Khemlal Mistry @ Vishwakarma convicted him for the offence punishable under section 302 and also under section 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- for the offence punishable under section 302 of the Indian Penal Code. However, no separate sentence was awarded for the offence punishable under section 201 of the Indian Penal Code. 2 The case of the prosecution, as has been projected by the prosecution, is that the deceased Khemlal Mistry @ Vishwakarma used to go to the river side, at the meeting point of three rivers, on each Amavasya day for offering puja. On 14.11.2001 also, which was an Amavasya day, the deceased left home at 6.00 P.M. for going to the place of worship at the confluence of the three rivers, but he did not return home in the night. In the next morning, Tetri Devi (P.W. 15), the wife of the deceased and also other family members left the village in search of the deceased. They did find the headless dead body of the deceased at the bank of the river but failed to find out the head of the dead body.
3. On the next day i.e. on 16.11.2001, when Ajay Kumar Singh, the then officer-in-charge of Tandwa Police Station received rumour that someone has killed Khemlal Mistry @ Vishwakarma of village Tesar Chappa, he came to the village and recorded the fardbeyan of Tetri Devi, the wife of the deceased, at 7.30 A.M. wherein she disclosed that when her husband did not return home in the night, she went along with Thakurain Keshari Devi in search of her husband at the place where her husband used to worship and found a headless dead body there. She raised suspicion against the appellant as a few months before, the appellant had threatened to chop off her tongue, on account of some dispute in between them. On the basis of the said fardbeyan (Ext. 5), a formal FIR (Ext.
6) was drawn and the Investigating Officer took up investigation of the case then and there, in which course, he seized certain articles meant to be used for worshiping Lord Shiva. The Investigating Officer held inquest on the dead body of the deceased and then sent the dead body for post-mortem examination.
4. Meanwhile, on 17.11.2001, he arrested the appellant who is said to have confessed his guilt and disclosed the place, where the head had been buried under sand. According to the case of the prosecution, that confession led to the recovery of the head of the deceased and was seized under the seizure list (Ext. 8).
5. Dr. A. K. Choudhary (PW17 did hold autopsy on the dead body and found the head being chopped off and separated from the rest of the body at the level of C-3. The cutting edge passed obliquely from behind at C-3 level and emerged anteriorly through oral cavity leaving chin. Mandible was found intact; all the soft tissues surrounding the neck and all the vital structures like blood vessels, oesophagus, air passage etc. passing across the neck were found to be severed. The doctor issued post-mortem examination report (Ext.
4) with an opinion that death was caused due to cardio-respiratory failure on account of massive haemorrhage and shock and disruption of respiratory air passage in cirvical region due to chopping off the head.
6. After completion of the investigation, the investigating officer submitted charge-sheet against the appellant showing the other two accused whose names got transpired in the confessional statement of the appellant, as absconders upon which cognizance of the offence was taken and when the case was committed to the court of Sessions, the appellant was put on trial, during which the prosecution examined as many as 18 witnesses. Of them, PWs 3, 4, 6, 10 and 11 have been declared hostile whereas PW7 never appears to be on any material point. PWs 1,2,5,12,13 and 15 have testified that the confession made by the appellant led to the recovery of the dead body, or have testified that the appellant in their presence and also in the presence of the police dug out the head which had been buried under sand. PWs 8, 12 and 14 have testified that on the day of Amavasya, the appellant had gone to worship Lord Shiva at the confluence of the three rivers where he used to go on every Amavasya. Apart from it, PW1 has testified that he had seen this appellant and other two accused persons near the river, on the day of the Amavasya. The Investigating Officer has been examined as CW1. The trial court having relied upon the fact that the confession made by the appellant led to recovery of the dead body and that the deceased and the appellant were on inimical terms, recorded the order of conviction and sentence which is under challenge.
7. Mr. Chaturvedi, learned counsel appearing for the appellant argued with all vehemence that the trial court has convicted the appellant on the premise that the confession made by the appellant led to recovery of dead body, but from the perusal of the confessional statement which has been exhibited as Ext. 7, it would never appear that the confession led to the recovery of the dead body. This factual position further gets buttressed from the fact that the seizure list also does not disclose that the chopped off head had been recovered in presence of this appellant, which submission is being advanced on the premises that the seizure list, under which the head has been seized does not bear the signature of the appellant and, therefore, the sole circumstance upon which the court has found this appellant guilty can never be said to have been proved.
8. It was further submitted that PW1 has testified that in the evening of Amavasya, he had seen this appellant as well as other two accused on the river side but he is conspicuously silent on the point as to whether at that place, the deceased was there in the river side and thereby that evidence cannot be taken to be incriminating in any manner and under the circumstances, the judgment of conviction and order of sentence is fit to be set aside.
9. As against this, learned counsel appearing for the State submits that though the confessional statement (Ext.
7) does not indicate that the confession made by the appellant led to recovery of the chopped off head, but number of witnesses have testified that in their presence and also in the presence of the police, the appellant dug out the head which had been buried under sand and, therefore, this has been an established fact that the recovery of head has been made at the instance of the appellant who was not in good terms with the deceased, as there had been animosity between them on account of professional rivalry and under the circumstances, the judgment of conviction and order of sentence never warrants to be interfered with by this Court.
10. Having heard learned counsel for the parties and on perusal of the record, we do find that it is the consistent case of the prosecution that the deceased used to go to the river side, near the confluence of the three rivers, on every Amavasya for worshiping Lord Shiva. On 14.11.2001 also, which was an Amavasya day, the deceased left home to go to that place, but he never returned home from there. In the morning when the informant (PW15 and the other witnesses set out in search of the deceased, they found headless dead body of the deceased at the place where the deceased used to go to worship Lord Shiva. Certain materials meant for use in the worship has been seized by the police which has been exhibited as material Exts. I, II and III which go to establish that the deceased had been there at the river side. The informant having noticed the dead body lying over there, came weeping back home where the villagers were informed. Thereupon they went there and tried to search the head of the dead body of the deceased. On the next day, the police came to the place of occurrence after getting information that the deceased has been killed by someone and then recorded the fardbeyan of the informant but the submission which has been advanced by referring to the evidence of PW5 in that before the Investigating Officer (CW1) came to the village and recorded fardbeyan, (PW5) had already informed about the occurrence at the police station and thereby, the fard beyan can not be taken to be the First Information Report. No cross-examination has been made on this point when the Investigating Officer was examined. However from the evidence of PW5 as testified in paragraph 10, it appears that he had informed the police that someone had informed him on telephone and by other means, that the deceased has been killed, is indicative of the fact that the information which was given was vague and as such, the Investigating Officer may not have thought it proper to lodge a case on that vague information and in that event, we do not find any infirmity in this respect.
11. Going further in the matter, we do find that when the Investigating Officer came at the place of occurrence he recorded fardbeyan and then seized certain materials which were there at the spot where deceased used to worship and then on the next day arrested the appellant who is said to have confessed his guilt and his confessional statement was recorded which has been proved as Ext.
7. According to the Investigating Officer, confession made by the appellant led to recovery of the head of the dead body of the deceased. On perusal of Ext. 7, we do find that virtually it is a confessional statement which in its entirety should not have been taken into evidence; rather, only that part showing recovery of the head should have been taken to be the admissible piece of evidence. However, we do find that Ext. 7 does not indicate that the confession led to recovery of the head. But we may note here that in the confessional statement, it has been disclosed about the place where the head had been buried. On account of that, the Investigating Officer brought the appellant at the place of occurrence who as per the evidence of PWs 2, 13 and 15, dug out sand and took out the head which had been buried under sand. However, the other witnesses such as PW1 5 and 12 have stated that the head was recovered at the instance of the appellant. Thus, we do not find any infirmity in the testimonies of the witnesses with respect to recovery of the head which was certainly at the instance of the appellant. Thus, the prosecution has been able to establish that the chopped off head was recovered at the instance of the appellant. Further, we do find that this appellant along with the other accused was seen on the day of occurrence in the evening of 14.11.2001 at the river side near confluence of three rivers. However, PW1 has never said that at that place, the deceased was also there, but it is the consistent case of the prosecution that the deceased used to go on the day of every Amavasya at the river side near the confluence of three rivers for offering puja to Lord Shiva. On that very day also, the deceased had gone to that place and therefore, this piece of evidence that the appellant along with the other co-accused was seen near the place of occurrence at the time when the deceased was there, is very material so far culpability of the appellant is concerned.
12. That apart, the prosecution has also been able to establish that the appellant and the deceased were not in cordial terms; rather, there had been professional rivalry in between the deceased and the appellant. Both of them being blacksmith used to sharpen the implements of the farmers for ploughing and the appellant was aggrieved as to why the deceased used to sharpen the implements of the farmers who happened to be his client and on account of that, the appellant had even threatened the deceased to the extent of cutting his tongue, if he would be doing the same which fact is established from the evidence of PWs 8, 15 and 14. The other witnesses, though have stated about the enmity in between them but point of animosity is different from the point what has been stated by PWs 8, 14 and 15 which hardly matters as the point of difference which has come from the mouth of PWs 8, 14 and 15, appears to be natural. Under the circumstances, motive has also been established. Under the circumstances, we do find that the learned trial court has rightly convicted the appellant and hence, the order of conviction and sentence passed against the appellant in Sessions Trial no. 122 of 2002 is hereby affirmed. Consequently, the appeal is dismissed. (R.R. Prasad, J.) (R.N.Verma, J.) Jharkhand High Court, Ranchi Dated:
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