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Judgment
This appeal is preferred by the appellants assailing the judgement, order of conviction and sentence dated September 20, 2008 and September 22, 2008 respectively passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad in Sessions Trial No. 5 of December, 2007 arising out of Sessions Case No. 29 of 2007. By virtue of the impugned judgement and order appellants were found guilty of the offence punishable under section 304/34 of Indian Penal Code (hereinafter referred to as IPC) and were convicted and sentenced to suffer rigorous imprisonment for ten years each and also to pay fine of Rs. 5000/- each in default to suffer rigorous imprisonment for another two years each and the period of detention undergone was directed to be set off as per provisions of law.
The prosecution case, in brief, is as follows:-
On February 20, 2004 at 22.05 hrs. one Sunil Murmu, since deceased s/o Late Bhim of village Susunidanga lodged a written complaint at the Nabagram P.S. to the effect that on that date at about 2/2.30 P.M. while he was thrashing mustard seeds sitting in front of his house then at that time there was scuffling in front of his house in the courtyard of appellant no.1 in between appellants and the brother of appellant no.1 namely the victim over cutting of bamboo. Suddenly appellant no.1 started striking the victim on his head by a spade lying in the courtyard as a result victim sustained bleeding injuries and fell down on the courtyard. When he rushed there to separate them he was pushed down by the appellant no.1 and as such due to fear he fled away. Victim expired immediate thereafter.
On the basis of the above complaint, Nabagram P.S. Case No. 37/2004 dated February, 20 2004 under section 302/34 I.P.C was started against appellants and the investigation ensued and thereafter on completion of investigation charge sheet was submitted by P.W.15 against the appellants under Section 302/34 IPC.
Charge was framed on July 3, 2007 under Section 302/34 IPC against the appellants and after they denied their involvement in the crime, trial commenced. Prosecution examined 15 witnesses and also produced and proved the FIR, seizure lists, inquest report, PM report, rough sketch map etc. and also produced the weapon of offence namely spade and thereafter on conclusion of trial, learned court below passed the impugned judgment.
It was submitted by Mr. Souvik Mitter, learned advocate for the appellants, that the impugned judgment, order of conviction and sentence cannot be sustained in law in so far as the involvement of appellant no.2 is concerned as there was no evidence with regard to her participation in the murder of the victim and/or that she shared common intention with appellant no.1 to kill the victim and the only eye witness (P.W.1) who implicated appellant no.2 in the crime did not state so to the investigating officer during investigation and has stated before the court only for the first time. He also submitted that provisions of section 34 IPC is not applicable in this case as there was no intention to kill the victim and the incident occurred at the spur of the moment and there was nothing on record to show that there was any enmity and/or long standing dispute between the parties.
It was alternately submitted by Mr. Souvik Mitter that on the facts and in the circumstances of the case, appellants had undergone almost 10 years of rigorous imprisonment and they are not in a position to pay the fine amount due to poor condition and if they are ordered to remain in jail for two more years even after the period of substantive sentence is over only because of inability to pay fine, serious prejudice will be caused and accordingly prayed for modification of default sentence awarded by the learned trial Court.
Ld. Advocate representing the state, Mr. Ranabir Roychoudhury fairly submitted that the evidence on record shows involvement of the appellant no.1 only in the commission of murder of the victim and save and except the claim of P.W.1 there was nothing on record showing participation of appellant no.2 in the commission of the said murder. With regard to the prayer for modification of default sentence awarded by the learned trial Court, Mr. Ranabir Roychoudhury submitted that he has nothing to say in this regard and left the matter at the discretion of the court.
We have considered the submissions advanced by the Ld. Counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the FIR, inquest report, rough sketch map with index with regard to the place of occurrence, post mortem report, seizure lists, charge sheet, charge framed amongst other materials for examining the propriety of the impugned judgement and the order of conviction and sentence.
It was not in dispute that the victim, Nagen Mardi, died on February 20, 2004 and his death was unnatural. From the evidence of P.W.s on record as also the inquest report it was apparent that death of the victim occurred in the courtyard of appellants. It was also evident from the evidence of the doctor (P.W.11) and the PM report (Exbt.4) that during post-mortem examination, P.W.11 found the following injuries on the person of the victim:-
One incised wound on the left pinna of the ear divided into two parts about 2'''' in length.
Another incised wound on the left ear about 2''''X ?'''' incised bone deep.
One penetrated looking wound on the left maxillary region about 2''''X 1'''' deep into bone cavity.
One lacerated wound on the back over occipital bone about 2''''x?'''' in size (scalp injury).
One linear fracture of the skull bone on the right fronto temporal region extending posteriorly upto the occipital region.
Swelling and haemotoma on the right side of the forehead maxillary region and around the right eye.
Huge haemotoma on the right side of the fronto temporal lobe of the brain.
In the opinion of the doctor death was due to shock and haemorrhage following the above mentioned injuries which were ante-mortem and homicidal in nature. He also opined that injuries may be caused by sharp cutting heavy weapon. He was cross-examined by the defence but his evidence remained unshaken. In the circumstances there was no reason to disbelieve the version of the doctor.
With regard to the above injuries resulting in death of the victim, the version of the prosecution was that on the relevant date at about 2/2.30 P.M. in course of altercation in between the appellants and the victim in the courtyard of appellant no.1, over cutting of ejmali bamboo, appellant no.1 suddenly started striking victim, his brother, on his head by a spade lying nearby causing severe bleeding injuries therefrom.
The learned court below took into consideration the evidences of P.W.1, the eye witness, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.8, the post occurrence witnesses besides the doctor, P.W.11, who held P.M. examination over the dead body of the victim and found the injuries to arrive at a conclusion that it was the appellant no.1 who along with his wife, appellant no.2, out of rage and anger, in course of an altercation over an ejmali property, caused the death of the victim and thereby committed an offence punishable under section 304/34 I.P.C.
Admittedly, the defacto-complainant who reportedly saw the incident and tried to stop the quarrel was not examined by the prosecution as being dead. It also transpires from the evidence on record that excepting P.W.1, who claimed to be an eye witness, none of the witnesses examined by the prosecution was witness to the occurrence. It also appears from the evidence on record that victim was the younger brother of the appellant no.1 and they were residing separately and the death of the victim occurred in the courtyard of the appellants where there was a quarrel between the brothers over cutting of ejmali bamboos.
Now let us analyse the evidence of the prosecution witness one after another to derive any conclusion.
According to P.W.1, about 4 years ago at about 2 p.m. there was a quarrel between the appellants and the deceased Nagen Mardi in the courtyard of appellant no.1 over cutting of ejmali bamboo and in that quarrel appellant no.2 at first assaulted victim by lathi and thereafter appellant no.2 assaulted him by a spade on his head resulting in his death. She has specifically claimed that she was personally present at the spot as her house is situated just in front of the courtyard of appellant no. 1. During cross-examination she had clearly stated that she had seen the appellant no.1 to strike the victim Nagen three times on his head by the spade and the victim sustained injury on the back side of his head and on seeing this she became so afraid that instantly she left the spot. P.W.15 also admitted that during investigation P.W.1 told him that on hearing hue and cry she went to the spot and saw the incident but as per his record there is no specific note that appellant no.2 assaulted the victim at first by lathi nor it has been mentioned in the statements of P.W.1 recorded under section 161 Cr.P.C. that she saw the appellants assaulting the deceased three times on his head from backside. So, from the above it was evident that the claim of participation of appellant no.2 in the commission of murder of the victim did not found corroboration from her statements recorded during investigation. During cross-examination she also admitted that she only saw appellant no.1 to strike the victim three times on his head by the spade and seeing this she left the place. Nothing was brought on record to disbelieve the above version of P.W.1. The evidence of this witness appears to be trustworthy and reliable.
From the evidence of P.W.2 it appears that he scribed the complaint (Exbt.1) as per instruction of Sunil Murmu, since deceased and did not see the incident. According to him he heard from Sunil Murmu, since deceased, that appellant no.1 had struck victim by spade. He was also a witness to the seizure of the bloodstained earth, controlled earth and spade (Mat. Exbt.1). During cross-examination also he affirmed his statements made in chief that Sunil told him that appellant no.1 struck victim Nagen by spade on his head resulting in his death. He also stated in cross-examination that he saw the dead body of the victim lying in the courtyard of the appellant no.1. He had nowhere whispered about the involvement of appellant no.2 in the commission of the offence in question. Surprisingly, no suggestion was put to him that Sunil did not say him anything about the incident. In such circumstances, there was no reason to disbelieve this witness.
From the evidence of P.W.3 also it appears that he was a post occurrence witness. According to him on the relevant date at about 3 p.m. when he came from the field he saw the dead body of the victim lying in the courtyard of appellant no.1 having bleeding injuries on the head of the victim and Sunil Murmu, since deceased, told him that victim was murdered by the appellants following a quarrel over cutting of ejmali bamboo. During cross-examination he clearly stated that he heard the incident of murder from Sunil. No suggestion was put to him that Sunil did not say him anything about the incident. He denied the defence suggestion that victim was murdered by someone else and the appellants have no role to play in that murder. The evidence of this witness in so far as the involvement of appellant no.2 in concerned did not appear to be believable as Sunil Murmu has nowhere alleged in the complaint that he saw the appellant no.2 murdered the victim.
According to P.W.4 also victim Nagen was murdered by the appellants by a spade following a quarrel over cutting of ejmali bamboos. According to him after the incident Sunil Murmu, since deceased, raised hue and cry and as such they all came to the spot and saw the dead body of the victim lying in the courtyard of appellant no.1 with bleeding injuries on his head and Sunil told them that appellant no.1 murdered the victim by a spade. During cross-examination also he stated that on hearing hue and cry he rushed to the spot and denied the defence suggestion that the victim was murdered by one Mohan Soren and the appellants have been falsely implicated in this case. No suggestion was also put to him that Sunil did not say him anything about the incident. He has also nowhere whispered about the involvement of appellant no.2 in the commission of murder of the victim.
According to P.W.5 also on the relevant date and time on hearing the incident he went to see the dead body of the victim and saw him lying dead in the courtyard of the appellant no.1 and heard from Sunil Murmu, since deceased, that the victim was murdered by his elder brother Soma namely the appellant no.1 at the time of altercation between them over cutting of ejmali bamboo. According to him wife of appllant no. 1 namely the appellant no.2 is also related with this incident. He also denied the defence suggestion that the victim was murdered by one Mohan Soren and the appellants have been falsely implicated in this case. No suggestion was put to him that Sunil did not say him anything about the incident. However, he has also nowhere stated that Sunil Murmu, since deceased, told him about the involvement of appellant no.2 in the commission of murder of the victim.
According to P.W.6, on the relevant date and time after hearing hue and cry he went to the courtyard of appellant no.1 and heard that following an altercation over cutting of ejmali bamboo appellant no.1 murdered his younger brother Nagen, the victim. During cross-examination also he admitted that he did not see the incident but on hearing hue and cry when he reached at the spot he saw the spade and also the dead body of the victim lying on the ground. He also denied the defence suggestion that the victim was murdered by one Mohen Soren and appellants have been falsely implicated in this case. He has also nowhere stated that he heard about the involvement of appellant no.2 in the commission of murder of the victim.
According the P.W.7, victim was murdered by the appellant no.1 by a spade over the issue of cutting bamboos and he heard from Sunil Murmu that appellant no.1 murdered the victim and he also saw the dead body of the victim lying on the ground in the courtyard of appellant no.1. According to him on going to the spot he saw both the appellants were on the spot along with other persons. During cross-examination also he admitted that Sunil, since deceased told him about the incident. He also denied the defence suggestion that the appellants have been falsely implicated in this case. He has also nowhere stated that Sunil Murmu, since deceased, told him about the involvement of appellant no.2 in the commission of murder of the victim.
According to P.W.8, on the date of the incident he was called by the villagers as moral of that village and he saw that victim was murdered by his brother Soma, appellant no.1. According to him he asked appellant no.1 why he murdered his brother Nagen to which he replied that there was a quarrel between them regarding landed properties and as victim abused him so he had murdered him. During crosss-examination he denied the defence suggestion that Sunil Murmu did not see the incident and he lodged the FIR as per his instruction. He also denied the defence suggestion that he assaulted the victim and appellants were falsely implicated in this case. Thus, it appears that his claim of involvement of appellant no.1 in the murder of the victim is based on reported extra-judicial confession of the appellant no.1 but the same did not find corroboration from any quarter. He even did not to the investigating officer during investigation. So, the claim of extra judicial confession by the accused does not appear to be believable.
From the evidence of P.W.10, a co-villager and P.W.12, wife of victim, also it appears that they heard from the villagers about the involvement of appellant no.1 in causing injury on the victim resulting his death. From Exbt.2 the written complaint, it was evident that Sunil Murmu, an eye witness, since deceased implicated appellant no.1 only to be the assailant who struck the victim by a spade on his head during scuffling over the issue of cutting of bamboos. Though, as per complaint, appellant no.2 was also quarreling with the victim but there was no iota of evidence on record that she shared common intention with the appellant no.1 in causing the death of the victim. On the other hand evidence on record shows that in course of scuffling between the brothers over cutting of ejmali bamboo, appellant no.1 suddenly took the spade lying in the courtyard and struck the victim on his head causing bleeding injuries thereon. Medical evidence also shows that injuries might had been caused by sharp cutting heavy weapon. No suggestion was put to the doctor towards sustaining of any injury by a lathi. The inquest report also did not support use of any lathi by appellant no.2 in the assault of the victim. Sunil Murmu, the complainant, since deceased, P.W.2 and P.W.4 were the witnesses to the said inquest.
So, from the above it was evident that the entire circumstances lead towards appellant no.1, in causing injuries on the head of the victim by a spade resulting in his death. In view of the above we do not find any fault in the decision making process of the trial Court in this regard. But in so far as the involvement of the appellant no.2, in causing death of the victim was concerned, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established against her. Under the circumstances ld. Court below was not justified in holding that appellant no.2, Mungli Mardi was also involved in commission of the offence u/s 302/34 I.P.C. along with appellant no.1, Soma Mardi. As such the impugned judgment require our interference in so far as the conviction of appellant no.2, Mungli Mardi is concerned.
Accordingly, conviction and sentence passed upon appellant no.2. Mungli Mardi are set aside and she is acquitted from the charge. Appellant no.2. Mungli Mardi be released forthwith unless her detention is required in any other case.
With regard to the alternative prayer of the learned Advocate for the appellants for modification of default sentence awarded by the learned trial Court, we find from the record that appellant no.1 whose involvement was found in the commission of the offence is in custody since the day of his arrest on February 20, 2004 and nothing was brought on record to show that he is the habbitual offender and/or that it was not his first offence. In the matter of Shanti Lal V. State of M.P. reported in (2008) Criminal Law Journal 306, it was held by the Hon?ble Supreme Court that term of imprisonment in default of payment of fine is not a sentence but it is a penalty which a person incurs on account of non-payment of fine and considering the poor condition of the accused person, and that it was his first offence reduced the period of sentence in default of payment of fine from three years to six months. In the matter of Shahejadkhan Mahebubkhan Pathan V. State of Gujrat reported in 2012(4) Crimes 309 (SC) also the Hon?ble Supreme Court considering the poor condition of the accused person and it was his first offence reduced the period of sentence from three years to six months in default of payment of fine.
Attention of this Court has not been drawn by the learned counsel appearing for the State towards any material on record to take a different view. Therefore, considering the circumstances placed before us on behalf of the appellant no.1 that he is a tribal and a very poor man and it was his first offence and if he fails to pay the amount of fine imposed by the learned trial court, he has to remain in jail for a period of two years in addition to the period of substantive sentence because of his inability to pay fine, we are of the view that ends of justice would be met if we order that in default of payment of fine of rupees five thousands, the appellant no.1 shall undergo rigorous imprisonment for 6 (six) months instead of two years as ordered by the learned trial court.
Accordingly, for the reason stated above, the conviction recorded and sentence imposed on the appellant no.1 to undergo rigorous imprisonment for 10 years and to pay a fine of rupees five thousands are upheld. But the order that in default of payment of fine, the appellant shall undergo rigorous imprisonment of two years is reduced to rigorous imprisonment for six months. If the appellant no.1, Soma Mardi has undergone substantive sentence of imprisonment for ten years as also rigorous imprisonment of six months as modified by us in default of payment of fine, he shall be set at liberty forthwith unless his detention is required in any other case. If the appellant no.1 has not completed the said period, he will be released after the period indicated herein above is over. The period of detention of the appellant no.1 undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428, of the Code of Criminal Procedure.
This appeal is thus partly allowed by setting aside the conviction and sentence passed upon appellant no.2. Mungli Mardi and with partial alteration of the order of sentence of appellant no.1 in default of payment of fine as indicated herein-above.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.