Against the judgment of conviction and order of sentence dated 4 th July, 2007 and 07th July, 2007 respectively by learned VIth Addl. District & Sessions Judge, (F.T.C. No.3), Godda, passed in Session Trial No.55 of 2000 and Trial No.42 of 2007. Cr. Appeal (D.B.) No.879 of 2008 Jiyafat Mian @ Ziyafat Mian, S/o Late Gayasuddin Mian, R/o Village :-Rajpura, P.S. :-Godda (M), District :-Godda. .. . . Appellant With Cr. Appeal (D.B.) No.839 of 2007 1.Karoo Mian 2.Chhotku Mian, Both Sons of Late Chhota Imamali Mian @ Baiju Mian, Resident of Village :-Godda (M), Police Station :-Godda (Mufasil), District :-Godda. . . . Appellants With Cr. Appeal (D.B.) No.1393 of 2007 Ayub Mian @ Ansari, Son of Hemtulla Mian, Resident of Village :-Rajpura, P.S. :- Godda (M), Distt :-Godda. . . . Appellant With Cr. Appeal (D.B.) No.1427 of 2007 Maujibul @Mazbul Mian @ Ansari, Son of Alauddin Mian, Resident of Village :- Jamnipaharpur, P.S. :- Godda (M), District :- Godda. . . . Appellant With Cr. Appeal (D.B.) No.1457 of 2007 1.Mangan Mian, Son of Yaruddin Mian 2.Abdul Mian, Son of Sajjad Mian, 3.Chamru Mian, Son of Late Ajmodi Mian @ Inayat Mian. All the appellants residents of Village :- Rajpura, P.S. :-Godda (M), District :- Godda. …. Appellants Versus The State of Jharkhand .. .. Respondent (In all the appeals) For the Appellant : M/s Jitendra S. Singh, Ranjan Kumar Singh, Advocates. For the State : M/s Hemant Sikarwar, Rajiv Anand, A.P.Ps. . .. . . . . PRESENT HON'BLE MR. JUSTICE R. R. PRASAD HON'BLE MR. JUSTICE PRAMATH PATNAIK By Court :- All these aforesaid appeals, were heard together and are being disposed of, by the common order as all the appeals do arise out of the same judgment of conviction and the order of sentence.
2. These appeals are directed against the judgment of conviction and order of sentence dated 4th July, 2007 and 07th July, 2007 respectively passed by learned VIth Addl. District & Sessions Judge, (F.T.C. No.3), Godda in Session Trial No.55 of 2000 and Trial No.42 of 2007, whereby and whereunder the court while acquitting the appellants for the charges under Sections 307/149, 436/149 of the Indian Penal Code, convicted the appellants for the offence punishable under Section 302/149 of the Indian Penal Code on being found them guilty for committing murder of Sukhdev Yadav in furtherance of their common object. -2- 3. The case of the prosecution is that on 20.03.2000 which was the day of “Holi”, the informant as well as the villagers were celebrating “Holi” festival by beating drums, singing and dancing. They in that course were proceeding towards “Kali-Mandap” in a procession by singing and dancing. As soon as the procession entered into an alley near the house of Ayub Mian at 2 p.m., some of the appellants forbade them from proceeding ahead on the plea that until and unless dispute of construction of that alley is settled, they will not allow them to go to “Kali-Mandap”. That led to altercation in between the members of two communities, during which there was brick-batting, whereby, members of each group started pelting stones upon others and firings were also made. In that course, Jiyafat Mian @ Ziyafat Mian (appellant in Cr. Appeal No.879 of 2008) fired shot at Sukhdeo Yadav and then they took him along with them.
4. It appears that Sub Inspector, A. N. Singh, Officer-in-Charge of Godda (M) Police Station when received information that there has been fighting in between the members of two groups in the Village, he reached the Village :-Rajpura and recorded the 'fardbeyan' of Mano Devi (P.W.1) at 9.00 p.m., on the basis of which a formal F.I.R. was drawn and he himself took up the investigation, during which statements of the witnesses were recorded. After ten days of the occurrence, when information was given to the Police that the dead-body of the said deceased has been found buried at the river side, the Police came to that place and found the dead-body buried which was taken out and upon holding inquest on the dead-body, inquest report (Ext.3) was prepared. Thereupon the dead-body was sent for post-mortem examination which was conducted by Dr. Ajai Kumar Jha (P.W.2), who upon holding autopsy on the dead-body of the deceased, did find the following injuries :- “Lacerated injury oval in shape blackened margins inverted present on the right side of chest. 3” above and medial to right nipple about one and quarter inch (1” and 1/4”) in diameter.” Upon dissection :- No abnormality was found on skull vertebra membrane brain and spinal cord. In thorax injury on right side of chest with fracture of 2nd, 3rd, and 4th ribs was found. Laceration on right side of lung with about one liter blood was also found. Bullet was recovered from back of chest near mind line on left side embedded in muscle. -3- 5. The Doctor issued post-mortem examination report [Ext.1] with an opinion that death was caused about 8 to 10 days before due to hemorrhage and shock caused by fire-arm injury.
6. On completion of the investigation, the Police submitted charge- sheet, upon which cognizance of the offence was taken. In due course when the case was committed to the Court of Sessions, all the eight appellants as well as Sajda Mian, Hazrat Ali and Qudus Mian were put on trial, during which prosecution examined altogether seven witnesses. Of them P.W.1 -the Informant, Mano Devi, P.W.4- Kankani Devi and P.W.5- Kirani Devi, P.W.6 -Pano Devi the eye witnesses did testify that on the occasion of “Holi” while the procession was proceeding towards 'Kali- Mandap', they were stopped at a place by the accused persons near the house of Ayub Mian, from proceeding ahead on the pretext that until and unless the problem of construction of road is solved, they will not allow them to proceed. That led to altercation in between the members of two different communities. During which persons of each side pelted stones upon each other. Shots were also fired.
7. According to the witnesses, they also saw the appellant, Jiafat Mian firing shot upon Sukhdeo Yadav. They also took away the body of Sukhdeo Yadav which was recovered after ten days of occurrence from a river side. P.W.3 is Dr. Kulanand Chaudhry who had examined injured witness, Pano Devi (P.W.6) on whose person bruise over the eye-lid and also lacerated wound over the left eyebrow caused by hard and blunt substance were found. He has proved the injury report as Ext.2. P.W.7 happens to be a formal witness who has proved the inquest report. Investigating Officer was not examined by the prosecution.
8. After the case of the prosecution was closed, the appellants were questioned under Section 313 of the Cr.P.C. about the incriminating evidences appearing against them to which the appellants denied.
9. Thereupon, the Court having placed implicit reliance on the testimonies of P.Ws.1, 4, 5 and 6 whose testimonies getting corroboration from the medical evidence, did find the appellants guilty for committing murder of Sukhdeo Yadav. The Court at the same time did not find the three persons, Sajda Mian, Hazrat Ali and Qudus Mian guilty and thereby, they were acquitted of the charges. Accordingly, the appellants were convicted and were sentenced as aforesaid which is under-challenge in these appeals.
10. Mr. Jitendra S. Singh, learned counsel appearing for the appellants, Jiyafat Mian, Karoo Mian and Chhotku Mian submits that though P.Ws.1 and 4 have claimed to be the eye-witnesses, they in fact are not the eye-witnesses which is reflected from the testimonies as -4- elicited in the cross-examination, wherein they did depose that when they returned home, they heard sound of gun-shot firing. At the same time, P.Ws.5 and 6 are also not the eye-witnesses as the statements made before the Police under Section 161 of the Cr.P.C. would disclose that while they had been at their houses, occurrence had taken place, but the court below did not take into account all these aspects of the matter and without taking it into account, found the P.Ws.1, 4, 5 and 6 trustworthy.
11. Further submission which was advanced on behalf of the appellants is that admittedly the dead-body was recovered after ten days of occurrence which according to the case of the prosecution had been buried. When it was taken out only skeleton was there as per the evidence of P.W.1 and thereby, it was not identifiable, still the other witnesses, P.W.4, 5 and 6 claimed to have identified the dead-body.
12. In this regard, it was also submitted that though P.Ws.5 and 6 have claimed to have identified the dead-body, but from the statements made under Section 161 of the Cr.P.C., it would appear that they had not gone to the place from where dead-body was recovered and thereby, they had had no occasion to identify the dead-body and, therefore, under the circumstances, the prosecution cannot be said to have proved its case beyond all reasonable doubt and further the prosecution has also not brought on record the fardbeyan and thereby, it can be said that basis on which the case was built up is absent and thereby, the case of prosecution is bound to fail.
13. Mr. Ranjan Kr. Singh, learned counsel appearing for the other appellants submits that though the appellants have been named by the witnesses, but they have not been alleged to have committed any overt-act in commission of the murder of the deceased and, therefore, even if they were present, they cannot be said to have been sharing the common object with other appellants, particularly when there was free fighting in between the parties, whereby the persons belonging to each group were pelting stones to each other and hence, when there is free fight, question of application of Section 149 of the I.P.C. does not arise, but the court below did not take into account all these aspects of the matter and thereby, the trial court can certainly be said to have committed illegality in recording the judgment of conviction and the order of sentence.
14. As against this, Mr. Shikarwar and Mr. Rajiv Anand, learned counsel appearing for the State submit that the eye-witnesses P.Ws.1, 4, 5 and 6 have testified that while on the occasion of “Holi”, they were proceeding in procession to 'Kali-Mandap', they were stopped at a place -5- by the accused persons, members of the other community which led to altercation whereby, the members of each group pelted stones upon each other, during which course, Jiafat Mian fired shot at Sukhdeo Yadav and took away the dead-body which was recovered only after ten days of occurrence.
15. Further it was submitted that It is true that P.W.1 in her cross- examination has testified that while she had returned home, she heard sound of gun-shot firing. That is being taken by the defence to be the gun-shot which was fired upon the deceased, but that is not so as the witness must have referred to other gun-shots firing which was going on during altercation in between the two groups and that the testimonies of all the witnesses, P.Ws.1, 4, 5, and 6 get corroboration from the medical evidence as the Doctor did find gun-shot injury over the chest of the deceased during post-mortem examination.
16. Further it was submitted that after ten days of occurrence, when the Police got information that dead-body of the deceased has been buried at the river side, the I.O. went there and recovered the dead- body which was identified not only by the P.W.1, but also by the other witnesses, P.Ws.4, 5 and 6 and thereby, it can never be said that the dead-body had never been identified by any of the witnesses and hence, submissions advanced on behalf of the defence in this regard, is devoid of any substance. Under the circumstances, it was submitted that impugned judgment never warrants to be interfered with.
17. Having heard counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been testified by the eye-witnesses, P.W.1, 4, 5 and 6 that on the day of 'Holi' i.e. 20.03.2000 they were enjoying holy by beating drums, dancing and singing in a procession. They proceeded in a procession to come to 'Kali- Mandap' when they reached near the house of Ayub Mian, they were stopped by the appellants from proceeding ahead on the pretext that until and unless dispute with respect to road leading to 'Kali Mandap' is solved, they will not allow them to proceed further. That led to altercation in between the members of the two groups, during which the persons started pelting stones upon each other. All the witnesses have testified that it was Jiafat Mian who fired shot at Sukhdeo Yadav whose body was also taken by them.
18. Further, we do find that P.W.1 in the examination-in-chief, has categorically deposed that she saw appellant, Jiafat Mian firing shot upon Sukhdeo Yadav (deceased), but in her cross-examination, she did depose that while fighting broke out in between the members of two groups, she came home and then heard sound of the gun-shots firing. -6- On account of this submission, which is being advanced that she had had no occasion to see the appellant, Jiafat Mian firing shot upon the deceased.
19. It be recorded that from the evidences of aforesaid four witnesses, it would appear that the fight in between two groups went on for a quite long time in which they were pelting stones from each side and also shots were fired and, therefore, it appears that P.W.1 in all probabilities would have meant the other firing not the firing made upon the deceased.
20. Similar is the situation with respect to testimony of P.W.4 as she had also testified in the cross-examination that she heard sound of firing while she was in her house. However, P.W.4 in her examination-in-chief has categorically said that she saw appellant, Jiafat Mian firing shots upon Sukhdeo Yadav over his chest. She has further testified that thereafter when the persons from both the sides started pelting stones upon each other, she came home and then heard sound of firings which cannot be said to be the sound of firing which was made upon the deceased rather it may probably be sound of other gun-shots firing. So far as P.Ws.5 and 6 are concerned, they are quite categorical in their testimonies that they were also the members of procession which was not allowed to go to 'Kali-Mandap' which led altercation in between the members of two groups. During that course, appellant, Jiafat Mian fired shots upon Sukhdeo Yadav (deceased).
21. It be stated that though the witnesses, P.Ws.5, and 6 are quite specific that they saw the appellant, Jiafat Mian firing shots upon the deceased, but their testimonies are being impeached on the ground that they had never made such statement before the Police in their statements under Section 161 of the Cr.P.C.
22. Further in this regard, the submission has also been advanced that had the Investigating Officer been examined by the prosecution, the defence could have elicited the said fact from the Investigating Officer, but on account of non-examination of the I.O., the said fact could not be elicited and thereby, the case of the defence also gets prejudiced.
23. That submission is not acceptable for the simple reason that attention of this witness was never drawn towards their earlier statements made before the Police where it is said that the witnesses had never said before the Police that they had seen the appellant, Jiafat Mian firing shot upon the deceased. In absence of any attention being drawn to the previous statement, plea of the defence being prejudiced on account of non-examination of the I.O. is not available to the appellants. -7- 24. Thus, we do find that there has been no reason to discard the testimonies of any of the witnesses i.e. P.Ws.1, 4 , 5 and 6 particularly when their testimonies get corroboration from the medical evidence whereby, Doctor found gun-shot injury over the chest of the deceased.
25. Coming to the other aspect of the matter, it be reiterated that dead-body was admittedly recovered after ten days of the occurrence from the river side. When the dead-body was recovered, P.W.1 according to her testimony, was present. She has testified that the dead-body was in the form of skeleton.
26. In that event, the submission was advanced on behalf of the defence that when there was only skeleton, there could not be any occasion for the witnesses i.e. P.W.1, P.W.4, 5 and 6 to identify the dead- body. Submission advanced on behalf of the defence though appears to be quite attractive, but if we take into account other aspect, it would appear that it is devoid of any substance. It is true that P.W.1 has testified that when it was informed that the dead-body of the deceased has been found buried, she went there and when it was taken out it was in the form of skeleton, but the other witnesses such as P.Ws.4, 5 and 6 have testified that the flesh was quite intact with the skeleton and on account of that they claimed to have identified the dead-body.
27. Further, we do find that according to evidence of P.W.1 when the dead-body was recovered, it was straight-away taken to the Police Station and when it was sent for post-mortem examination, the Doctor did find the dead-body though decomposed, but flesh was quite intact and thereby, the Doctor could find lacerated injury over the chest. Submission was also advanced on behalf of the defence that after ten days of the deceased being done to death, dead-body would have not been in a position to leave mark of the injury caused by fire-arm. The submission though has been advanced, but no question was put to the Doctor in this regard and thereby, in absence of any expert opinion, we are not in a position to accept this submission. As we have noted that the witnesses P.W.4, 5 and 6 have clearly deposed that they had identified the dead-body as it was having flesh, any statement made by P.W.1 regarding only skeleton being there seems to have come under the stress of cross-examination.
28. Thus, we do find the prosecution has been able to establish its case that the appellant, Jiafat Mian killed the deceased. But the question does arise as to whether appellants other than the appellant, Jiafat Mian can be held responsible under constructive liability to have killed the deceased? -8- Straight-away answer is no. We have already noted that it is the case of the prosecution that while some members of one community were proceeding towards “Kali Mandap” in a procession, they were stopped from proceeding further ahead by members of other community including appellants, during which course, altercation took place in which persons of each group pelted stones upon each other, meaning thereby, that there was free fight in between the two groups. Where there had been a free fight, question of constructive liability does not arise. Moreover, none of the appellants other than, Jiafat Mian have been alleged to have committed any overt-act in the commission of the murder of the deceased and thereby, they cannot be held liable for commission of the murder Sukhdev Yadav, but the court below did not consider the case in this perspective and thereby, committed illegality in recording the judgment of conviction and order of sentence against all the appellants other than Jiafat Mian.
29. Accordingly, the appellants, Karoo Mian, Chhotku Mian [in Crl Appeal (DB) No.839 of 2007], appellant, Ayub Mian @ Ansari [in Crl Appeal (DB) No.1393 of 2007], appellant, Maujibul @ Mazbul Mian @ Ansari [in Crl Appeal (DB) No.1427 of 2007] and appellants, Mangan Mian, Abdul Mian and Chamru Mian [in Crl Appeal (DB) No.1457 of 2007] are acquitted of the charges and are discharged from the liabilities of their bail bonds.
30. So far as, the appellant, Jiafat Mian [in Cr. Appeal No.879 of 2008] is concerned, he, in the facts and circumstances, as stated above, has rightly been convicted by the trial court and thereby, judgment of conviction and order of sentence is hereby, confirmed.
31. Accordingly, Criminal Appeal (DB) No.879 of 2008 is hereby, dismissed, whereas Criminal Appeal (DB) Nos.839 of 2007, 1393 of 2007, 1427 of 2007 and 1457 of 2007 are hereby, allowed. (R. R. Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated the 6th May, 2015. Sandeep/N.A.F.R.