Surendra Karmali @ Suren vs The State Of Jharkhand
2022 Latest Caselaw 2705 Jhar

             Cr. Appeal (DB) No. 275 of 2020

[Against the judgment and order of conviction and sentence dated 08.06.2010,
passed by Shri Nalin Kumar, learned Additional Judicial Commissioner, Fast
Track Court No. VI, Ranchi in S.T. No. 216 of 2009.
                           ----------

Surendra Karmali @ Suren.                      .....Appellant
                           Versus

The State of Jharkhand.                        ....Respondent
                           --------

For the Appellant          : Mr. Nilesh Kumar, Advocate
For the Respondent         : Mr. Bhola Nath Ojha, A.P.P.
                           PRESENT
      HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
          HON'BLE MR. JUSTICE AMBUJ NATH
                           --------

Heard Mr. Nilesh Kumar, learned counsel for the appellant and Mr. Bhola Nath Ojha, learned A.P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 08.06.2010, passed by Shri Nalin Kumar, learned Additional Judicial Commissioner, Fast Track Court No. VI, Ranchi in S.T. No. 216 of 2009, whereby and whereunder the appellant has been convicted for the offence under section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs.5,000/- and on failure to deposit the fine to undergo imprisonment for a further period of two years.

3. The fardbeyan of Ramani Devi was recorded on 10.10.2008 at around 10 A.M., in which it has been stated that after immersing the idol of Goddess Durga during Dusshera festival, her husband Baijnath Karmali and brother in law Sukhram Karmali @ Suko had come back to the house when at around 8 P.M. her 'gotiya' Surendra Karmali @ Suren (appellant) came and started abusing her brother in law and a quarrel started with respect to a land dispute. Her husband was trying to settle the dispute. In the meantime, Indra Solanki and Ramdeo Manjhi had come and had dragged her brother in law to their house. Her husband followed in order to pacify the situation. It is alleged that all of a sudden, the accused persons started assaulting her husband and brother in law with sharp cutting weapons and when she reached the place of occurrence, she found both of them dead. She has alleged that Surendra Karmali @ Suren, Indra 2 Cr. Appeal (D.B.) No 275 of 2020

Solanki and Ramdeo Manjhi on account of a land dispute had committed the murders of her husband and brother in law.

4. Based on the aforesaid allegations, Silli P.S. Case No. 72 of 2008 was instituted for the offences punishable under sections 302/34 of the Indian Penal Code against Surendra Karmali @ Suren, Indra Solanki and Ramdeo Manjhi. On conclusion of investigation, chargesheet was submitted under section 302/34 IPC and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 216 of 2009. Charge was framed against the accused persons under section 302/34 of IPC, which was read over and explained to them in Hindi, to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as fourteen witnesses in support of its case.

P.W-1-Krishna Kumar Bedia has deposed that he was assisting in making of 'PRASAD' when the brother of the Chowkidar came and informed that Sukhram Karmali and Baijnath Karmali have been murdered and when he went he found the dead bodies lying in the courtyard of Surendra Karmali.

In cross-examination, he has stated that he does not know as to who had committed the murders.

P.W-2-Birendra Kumar Bedia was in the 'Pandal' when the brother of the Chowkidar had informed that Sukhram Karmali and Baijnath Karmali were murdered in the courtyard of Surendra Karmali.

In cross-examination, he has deposed that he had not seen anyone committing the murders.

P.W-3-Ramani Devi is the informant and the wife of one of the deceased- Baijnath Karmali. She has deposed that it was the month of 'Ashwin' last year at about 8-9 P.M. when a quarrel had ensued due to a land dispute. Sukhram was abused by the accused persons and was taken to the house of Surendra. She has stated that her husband had followed them in order to pacify the situation. When she went to the house of Surendra, she had found that all the three accused have committed the murder of her husband and brother in law. The Chowkidar and the villagers had come and had seen the dead bodies. The murder was committed by the accused persons due to a land dispute.

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In cross-examination, she has stated that the house of Suren is situated adjacent to her house. She has further stated that no one had come from the village when she had raised alarm.

P.W-4-Pradeep Kumar Manjhi is a witness to the inquest report. He has proved his signature on the inquest reports, which have been marked as Exts-1 and 2 respectively.

P.W-5-Sadhu Manjhi is also a witness to the inquest report, who has proved his signature on the inquest reports, which have been marked as Exts- 1/1 and 2/1 respectively.

P.W-6-Brahamanand Bedia has deposed that he was in the Durga Mandir Pandal when the brother of Chowkidar informed that Sukhram Karmali and Baijnath Karmali have been murdered in the courtyard of Surendra Karmali.

In cross-examination, he has stated that he had disclosed to the police that at the time of the occurrence, Indrajit and Ramdeo were also preparing 'PRASAD' in the Pandal.

P.W-7-Sukhdeo Manjhi has deposed that on 9.10.2008, the incident had occurred and he had come to know about the same in the morning of the next day.

In cross-examination, he has stated that the accused persons were given the responsibility of distribution of PRASAD.

P.W-8-Devendra Bedia has deposed that he was in the Pandal when the brother of the Chowkidar informed him that Baijnath and Sukhram have been murdered, at which, he had gone to the place of occurrence and had seen the dead bodies in the courtyard of Surendra Karmali.

In cross-examination, he has stated that all the accused persons were preparing PRASAD.

P.W-9-Devendra Karmali has deposed that on 9.10.2008, he was at Muri and in the next morning, he was informed by the Chowkidar-Kameshwar Karmali about the murder of his father and uncle. When he returned to his village, his mother disclosed that Surendra, Ramdeo and Indrajit had committed the murder of Baijnath and Sukhram. There was a land dispute with Surendra Karmali since Surendra had sold off their land. He has stated that Surendra is his cousin brother.

In cross-examination, he has deposed that the incident was disclosed to him by his mother.

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P.W-10-Mangra Munda has stated that on hearing about the incident in the next morning, he had gone to the courtyard of Surendra Karmali and had found the dead bodies of Baijnath and Sukhram.

P.W-11-Lodu Singh Munda has stated that he had come to know about the occurrence in the next morning and when he went to the courtyard of Surendra Karmali, he had found both the dead bodies lying in the courtyard.

In cross-examination, he has stated that he had not seen the occurrence.

P.W-12-Dr.Sabrina Kamal was posted as a tutor, FMT, RIMS and on 10.10.2008, she had conducted autopsy on the dead body of Sukhram Karmali @ Suku and had found the following:-

Average built, Rigor mortis all over abdomen slightly distended, Right blood stain over eye side of the face, lacerated wound 3 1/2" cm x soft tissue right side of chin.

Incised wound-9 cm x 1 cm x bone deep on left tempura-parietal region of head cutting the soft tissue left tempura-parietal bone, dues matter & brain underneath with presence of blood & blood clot in cranial cavity.

Opinion-

         (i)        Above noted injuries are ante mortem.
         (ii)       Lacerated wound is caused by hard & blunt substance & incised
                    wound, sharp cutting weapon.
         (iii)      Death is due to heavy bleeding as a result of above noted incised
                    wound.
         (iv)       T/D-6-24 hrs. from P/M.

She had also conducted autopsy on the dead body of Baijnath Karmali @ Momo Karmali and had found the following:-

Average built, Rigor mortis all over, abdomen slightly distended, Dry blood stains over left side of face & neck.

Incised wound-9 x 5 cm x bone deep right lateral neck lower part cutting the soft, blood vessels & 6th cervical vertebra including spinal cord.

There is infiltration of blood & blood clot in the soft tissue & bony tissue at the site of wound.

Opinion-

   (1)           Above noted injuries are ante mortem.
                                     5                       Cr. Appeal (D.B.) No 275 of 2020


     (2)      Caused by heavy sharp cutting weapon.
     (3)      Death is due to hemorrhagic shock as a result of above noted incised
              wound.
     (4)      Time since death-6-24 hrs.

She has proved both the postmortem reports prepared by her and bearing her signature as well as countersigned by the H.O.D. Dr. Tulsi Mahto and which have been marked as Ext-3 and 3/1.

P.W-13-Moti Toppo had taken over investigation of the case on 12.12.2008. He had obtained the postmortem report, recorded the statement of Devendra Karmali and had arrested Indrajit Solanki and Ramdeo Manjhi. He had submitted the chargesheet. He has proved the formal FIR, which has been marked as Ext-4. The fardbeyan is in the handwriting of Sub Inspector J. Oraon and bears his signature while the inquest report is also in the handwriting of J. Oraon and bears his signature and all have been marked as Exts-5, 6 and 7.

In cross-examination, he has stated that he had not recorded the fardbeyan of the informant. The inquest report was not prepared in his presence. No documents relating to the land dispute were produced before him.

P.W-14-Jagarnath Oraon is the first Investigating Officer who has stated that on 10.10.2008 at about 7.45 A.M. he received an information that at Ajaygarh, Bandhtola, two persons have been murdered at night. After registering a Sanha, he had left for the place of occurrence. He had recorded the fardbeyan of the informant, which is in his handwriting and bears his signature and which has been marked as Ext-5. He had taken over investigation on the orders of the officer in charge. He had seized a knife from the room of the deceased-Sukhram Karmali. He had also seized a bamboo stick from the place of occurrence, for which he had prepared a seizure list. The bodies were sent for postmortem examination. He had recorded the restatement of the informant and had also recorded the statements of Birendra Kumar, Devendra Bedia, Krishna Kumar Bedia, Brindaban Bedia, Sukhdeo Manjhi, Bhengra Munda and Ladu Singh Munda. He had also obtained the postmortem report.

In cross-examination, he has deposed that the informant had disclosed that due to a land dispute, the accused persons had murdered her husband and brother in law. In course of investigation, he could not find any eye witness. He had not sent the bamboo stick for forensic examination.

6. The statement of the accused was recorded under section 313 Cr.P.C., in which he has expressed his denial in taking part in the murders.

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7. The defence has examined as many as three witnesses in support of its case.

D.W-1-Nrick Hazam has deposed that there was no land dispute between Ramdeo Manjhi and Baijnath Karmali. Both the deceased were drunkards who used to quarrel with the villagers. He has stated that a torch and a knife were recovered from the room of Baijnath Karmali.

D.W-2-Haradhan Rajwar has stated that both the deceased used to quarrel with others after having liquor. He has stated that there never was any land dispute between Ramdeo Manjhi and Baijnath Karmali. He has also stated that a torch and a knife were recovered from Baijnath Karmali.

D.W-3-Jugal Karmali has deposed that both the deceased were drunkards and they used to pick up quarrels. They also used to carry danda and knife.

8. It has been submitted by Mr. Nilesh Kumar, learned counsel for the appellant, that there are no eye witnesses to the actual incident of murder. The appellant has falsely been implicated on account of a land dispute. It has further been submitted by way of an alternative argument that the conviction of the co- convicts has been modified to one under section 326/34 of the Indian Penal Code and their sentence has been reduced to rigorous imprisonment for ten years in Cr. Appeal (D.B.). No. 1092 of 2010 and Cr. Appeal (D.B.) No. 1094 of 2010. The appellant is in custody for more than 13 years and since the case of the appellant is similar to the co-convicts, his conviction be accordingly modified and the sentence imposed upon him be consequently reduced.

9. Mr. Bhola Nath Ojha, learned A.P.P., has opposed the prayer made in the appeal and has submitted that there are strong circumstances indicating the involvement of the appellant in committing the murders.

10. In Cr. Appeal (D.B.). No. 1092 of 2010 and Cr. Appeal (D.B.) No. 1094 of 2010, a Coordinate Bench of this Court had modified the conviction from 302/34 IPC to section 326 and had accordingly reduced the sentence and it has been held as follows:-

13. According to the informant, Surendra Karmali came to her house first and started a quarrel with her brother-in-law. At that juncture, the appellants were not present with Surendra Karmali. After a quarrel has started between Surendra Karmali and Sukhram Karmali the appellants have come to the house of the informant. The allegation against them is that they along with Surendra Karmali have dragged Sukhram Karmali to the house of Surendra Karmali. From testimony of the informant it appears that she has not seen the appellants actually assaulting her husband and 7 Cr. Appeal (D.B.) No 275 of 2020

brother-in-law. During her cross-examination she has stated that 6 when she had gone to the house of Suren she has seen the dead bodies of her husband and brother-in-law. The learned Sessions Judge has recorded demeanor of the witnesses. In his opinion it seemed to him that the informant does not understand Hindi properly. But still, the learned Sessions Judge has permitted cross-examination of the informant in Hindi. Dr. Sabrina Kamal, who has prepared the autopsy report of Baidyanath Karmali and Sukhram Karmali, has found one single injury on both of them. In his opinion, the death has been caused due to shock and hemorrhage on account of the incised wounds. But from the prosecution's evidence, particularly, testimony of the informant it cannot be established who amongst the accused persons has assaulted Baidyanath Karmali and Sukhram Karmali. Therefore, we hold that the prosecution has also failed to establish that the appellants who had no grudge against the deceased persons have shared common intention with Surendra Karmali to commit murder of Baidyanath Karmali and Sukhram Karmali and the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code against the appellants.

14. The injuries found on Baidyanath Karmali and Sukhram Karmali were grievous in nature. According to the doctor those injuries were caused by a heavy sharp cutting weapon. A heavy sharp cutting weapon would be a dangerous weapon in terms of section 326 of the Indian Penal Code and, therefore, the appellants are liable to be convicted under section 326 of the Indian Penal Code for voluntary causing grievous injuries to Baidyanath Karmali and Sukhram Karmali by dangerous weapons which were likely to cause death [refer, "Vijay Singh and another Vs. State of Madhya Pradesh" reported in (2014) 12 SCC 293 and "Rama Meru and another Vs. State of Gujarat" reported in 1993 Supp(1) SCC 315].

15. Accordingly, the judgment of conviction and the order of sentence of R.I for life and fine of Rs.5,000/- inflicted upon the 7 appellants under section 302/34 of the Indian Penal Code, both dated 08.06.2010, in Sessions Trial No.216 of 2009 are set-aside.

11. With reference to the aforementioned appeals, the case of the present appellant appears to be having an altogether different flavour. The co-convicts did not have any grudge against the deceased persons and they did not share a common intention with the present appellant.

12. The co-convicts were also not present when the quarrel had started between the present appellant and the brother in law of the informant though they had arrived subsequently. Admittedly, the informant, who has been examined as P.W-3, had not witnessed the actual incident of assault. As per the fardbeyan of P.W-3, the incident was initiated by the appellant who had come to the house of the 8 Cr. Appeal (D.B.) No 275 of 2020

informant and had started abusing the brother in law of the informant. The other two accused persons had arrived and all three of them had dragged him to their house with the husband of the informant following them in order to pacify the situation. In her evidence, P.W-3 has deposed that all the three accused persons had abused Sukhram Karmali and had forcibly taken him to their house. When she went later on she found that the accused persons have murdered her husband and brother in law. As per P.W-14 (I.O.), the place of occurrence is the house of the appellant. P.W-1, P.W-2, P.W-8, P.W- 10, P.W-11 and P.W-12 though are not the eye witnesses but they have stated that both the dead bodies were found lying in the courtyard of the appellant. P.W-9, who is the son of the informant, has stated about a land dispute with the appellant since he had sold off their lands. The deceased persons were last seen with the accused and after a while the informant went and found both of them lying dead in the courtyard of the appellant. Thus, there was a close proximity with they being last seen with the accused persons and the recovery of their dead bodies.

13. In this context, reference may be made to the case of Ashok Versus State of Maharashtra reported in (2015) 4 SCC 393.

"12. From the study of above stated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non- explanation of death of the deceased, may lead to a presumption of guilt."

14. The prosecution has been successful in completing the chain of circumstances and the onus therefore shifts to the appellant to explain the circumstances, under which, the dead bodies were found in his house and that too having injuries on their persons.

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15. In the case of Sabitri Samantaray Vs. State of Odisha reported in 2022 Live Law ( SC) 503, the scope and purview of Section 106 of the Evidence Act has been explained and it has been held as follows:-

24. In the instant case, the prosecution had thus succeeded in establishing intention of the appellants for the commission of the offence. Such an intention, when analyzed in the light of the statements made by all the sets of witnesses, and fatal injuries sustained by the deceased at the relevant place and time, certainly makes out a strong case that death of the deceased was indeed caused by the appellants. Therefore, once the prosecution had successfully established the chain of events, the burden was on the appellants to prove it otherwise. Thus, the High Court rightly observed that in light of Section 106 of the Evidence Act, the onus was now on the appellants to disclose how the deceased lost his life"

16. The appellant has failed to discharge his burden and his 313 Cr.P.C. statement is also silent in that respect.

17. The defence has produced three witnesses but none of them seem to shed any light in favour of the appellant rather have projected the deceased as drunkards having a quarrelsome nature.

18. The case of the appellant being on a different footing to that of the co-convicts whose conviction has been made under section 326 IPC and the sentence reduced to rigorous imprisonment for ten years and the prosecution having been able to establish its case against the appellant beyond all reasonable doubt, this appeal fails and the same is accordingly dismissed.

Pending I.A.s if any stand disposed of.

(Rongon Mukhopadhyay,J)

(Ambuj Nath, J)

Jharkhand High Court, Ranchi Dated_____July, 2022 Rakesh/NAFR