Jharkhand High Court
Kadla Oraon & Ors vs State Of Bihar on 18 August, 2009
Author: D.N.Patel
Bench: D. N. Patel, R.R. Prasad
Criminal Appeal No.192 of 1994 (R)
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Against the judgment of conviction and order of sentence dated
25.11.1994and 2.12.1994 passed by 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No.277 of 1993.
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1. Kadle Oraon
2. Angna Oraon
3. Charo Oraon
4. Kura Oraon............................................................Appellants VERSUS State of Bihar ............................................................Respondent For the Appellants : M/s. Sumeet Kumar Gadodia and A.K.Jha For the State : Mr. Ravi Prakash P R E S E N T THE HON'BLE MR. JUSTICE D. N. PATEL THE HON'BLE MR. JUSTICE R.R. PRASAD Oral Order Per D.N.Patel, J.
1. The present appeal has been preferred against the judgment of conviction and order of sentence dated 25.11.1994 and 2.12.1994 respectively passed by 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No.277 of 1993, whereby the present appellants have been punished to undergo life imprisonment for the offence under section 302 to be read with section 34 of the Indian Penal Code. Against the judgment of conviction and order of sentence, the present appeal has been preferred by the present appellants.
2. The fact of the prosecution case is unfolded hereunder:
On 8th of January, 1993 at about 6 p.m. the deceased as well as his son were passing through a village from the market area, the appellant no.1-original accused no.1 abused the deceased and started altercation with the deceased and there was free fight between the appellant-accused no.1 and the deceased. The incident has taken place in the market on road. From nearby 2 houses, rest of the appellants rushed towards the appellant- accused no.1, was not having any weapon in his hand. The appellants- accused were not knowing that the deceased and his son (informant P.W.4) were going to pass from the market area. Thus, the whole incident has taken place suddenly and because of free fight between the appellant no.1 and the deceased. Rest of the accused came there. The appellant no.2 (original accused no.2) was having lathi in his hand. Other two accused were not having weapons in their hands. It is a case of the prosecution that the appellant no.2 (original accused no.2) gave lathi blow on the head of the deceased, namely, Ismail Ansari and thereafter the deceased had fallen down and he was initially taken to Mandar Hospital where no F.I.R. was filed. Thereafter he was taken to R.M.C. Hospital where he was not survived by plenty efforts, where also, no F.I.R was filed and upon his death, F.I.R was lodged on 9th of January, 1993 at 14.00 hours at Bariatu Police Station. Investigation was carried out, charge sheet was filed, Sessions Trial No.277 of 1993 was instituted against the appellants-accused. The evidence was recorded and the appellants were convicted for life imprisonment for an offence under section 302 to be read with section 34 of the Indian Penal Code and, therefore, the present appeal has been preferred by the appellants-accused.
3. We have heard learned counsel appearing for the appellants, who has mainly submitted that there are lots of omissions and contradictions and improvements by the prosecution witnesses in their depositions. This aspect of the matter has not been properly appreciated by the trial court and hence, judgment of conviction and order of sentence passed by the trial court is to be quashed and set aside.
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4. It is also submitted by learned counsel for the appellants that P.W.2 is not an eye witness. In fact, the injury upon the deceased has been caused by P.W.4, who was also having a lathi in his hand.
5. It is also submitted by learned counsel appearing for the appellants that statements of the alleged eye witnesses have been recorded at much belated stage. P.W.3 is also not an eye witness of the incident, looking to the cross-examination of this witness.
6. It is also submitted that as per the prosecution witnesses, there was a blow of lathi on deceased, but, as per the medical evidence of P.W.6, there is neither any external injury nor there is any blood stains. Thus, the alleged eye witnesses have not seen the incident at all.
7. It is also submitted by the counsel for the appellants that looking to the depositions of P.W.2 and P.W.3, the place of offence is not clear because they were never present at the scene of offence, but, they were present in their own shops. There is also delay in lodging the F.I.R.
8. It is also submitted by the learned counsel for the appellants that the prosecution has failed to prove the offence under section 302 to be read with section 34 of the Indian Penal Code beyond reasonable doubt. There is no common intention of the appellants- accused of committing murder of the deceased. They have not come together. There are no lethal weapons in their hands. There is only one injury by appellant no.2 (original accused no.2) and that too because of the sudden fight between the appellant no.1 and the deceased. Except the appellant no.2, other accused, even as per the case of the prosecution, were not carrying any weapon, not even, hard and blunt substance in their hands. There is no common intention of causing death of the deceased and at highest, case of 4 the appellant no. 2 may fall under section 323 of the Indian Penal Code.
9. Learned counsel appearing for the appellants has relied upon a decision in the case of Gurdeep Singh vs. Jaswant Singh and Ors. reported in 1992 East Cr. Cases 570 as well as the judgment in the case of Madhusudan Satpathy and Ors. Vs. State of Orissa reported in (AIR 1994 SC 474) and submitted that this aspect of the matter has not been properly appreciated by the trial court and hence, the judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside.
10. Learned counsel for the State (A.P.P) has submitted that there are three eye witnesses of the whole incident, specially P.Ws. 2, 3 and 4.
11. It is submitted by A.P.P that blow given by appellant no.2 was resulting in such injury that it was sufficient to ordinary course of nature to cause death of the deceased and therefore, the appellants rightly have been convicted under section 302 read with section 34 of the Indian Penal Code.
12. It is also submitted by A.P.P that initially the appellant no.1 was having a free fight with the deceased and thereafter immediately rest of the co-accused have come on the spot and appellant no.2 has caused an injury on the vital part of the body, i.e, head of the deceased. This reveals their intention to cause death of the deceased.
13. It is also submitted that looking to the evidence given by P.W.6, Dr. Niranjan Minj to the effect that cause of death of the deceased is due to head injury. Thus, there is enough corroboration to the deposition of the eye witnesses by the deposition of medical evidence.
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14. Learned counsel appearing for the State has relied upon a decision in the case of Gullu Mirchandani and Anr. Vs. State of Jharkhand as reported in [2006(4) East Cr. Cases 98] as well as in the case of Gudar Dusadh vs. State of Bihar reported in (AIR 1972 SC 952) and submitted that even if there is one lathi blow given on the head of the deceased is sufficient to constitute an offence under section 302 of the Indian Penal Code and this aspect of the matter has been properly appreciated by the trial court and hence, appellants-accused have rightly been convicted under section 302 to be read with section 34 of the Indian Penal Code and, therefore, the appellants may not be entertained by this Court.
15. Having heard learned counsel appearing for both the sides and looking to the evidence, it appears that the whole incident has taken place on 8th January, 1993 at about 6 p.m. in a market area of village Tangar Basuli Chowk, District- Ranchi, when P.W.4 and the deceased, who was father of P.W.3 passing through the village Tangar Basuli Chowk. The appellant no.1 started abusing the deceased. The dispute was pertaining to a tree which was allegedly cut by the deceased. On such an issue, there was scuffle between the appellant no.1 and the deceased. Looking to this free fight between the appellant no.1 and the deceased, rest of the appellants rushed at the scene of offence. Nobody (none of the accused) was knowing, that deceased will pass from market area at a particular time on a particular date. Thus, neither of this appellant had pre-meditation of committing murder of the deceased not there is any intention on their part to commit murder of the deceased. Except the appellant No. 2, as per the eye witnesses, P.Ws. 2, 3 and 4, none of these appellants were carrying weapons in their hands.
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16. Looking to the deposition given by P.W.2, who is an eye witness, he has narrated the time, the place, the weapons and the injury upon the deceased. It has been stated by these witnesses that initially there was a free fight between the appellant no.1 and the deceased and subsequently rest of the accused rushed at the scene of the offence. The appellant no.2 was carrying a lathi (hard and blunt substance) in his hand where rests of the accused were not carrying any weapons in their hands. One blow of lathi was given by the appellant no.2 to the deceased, who had fallen down and thereafter he was taken to Hospital. Looking to the deposition and looking to the cross examination of this witness, nothing is coming out in favour of the appellants-accused. It appears to us that P.W.2 is a reliable and trustworthy eye witness.
17. Looking to the deposition given by P.W.3, who is also an eye witness and has narrated the whole incident like P.W.2. Initially there was a free fight and thereafter rest of the appellants came and the appellant no. 2 gave a lathi blow to the deceased and thereafter he had fallen down and was taken to the Hospital. Thus, even as per this witness, except appellant No. 2 (original accused no. 2), no appellant was carrying any weapon. P.W.2 was having hard and blunt substance and has given only one blow to the deceased.
18. Looking to the deposition of P.W.4, he is son of the deceased. He was accompanying his father in village Tangar Basuli Chowk. He has narrated that appellant no.1 started abusing the deceased which was resulted into free fight between them. Rest of the appellants rushed at the scene of offence. Except appellant no.2, nobody was carrying any weapon and the appellant no.2 caused one lathi blow upon the deceased, who was fallen down and was taken initially to Mandar Mission Hospital and thereafter he 7 was advised to R.M.C Hospital where he expired ultimately. Thereafter he filed F.I.R. on 9th of January, 1993 at 14.00 hours. Thus, P.W.4 is an eye witness and complainant. Looking to the cross-examination of this witness, nothing is coming out in favour of the appellant-accused. There is no omission or contradiction in his deposition and is reliable and trustworthy witness.
19. P.Ws. 2, 3 and 4 are the prosecution witnesses, who have narrated in one breath that incident has taken place in Market area. Road is about 10-12 ft. Nearby the shops, houses were also situated. In nearby, they have seen the appellant no.2 causing an injury upon the deceased and except the appellant no.2, nobody was carrying any weapon and the whole incident was taken because of the free right between the appellant no.2 and the deceased. These basic facts have remained as they are, even looking to the cross-examination.
20. Looking to the deposition of P.W.6, who is Dr. Niranjan Minj, has stated death of the deceased has been caused because of the head injury.
21. Injuries sustained by the deceased are as under:
1. "lacerated wound - ½ x ½ cm. x soft tissues on the right little finger tip with dislocation of the nail bed.
2. Internal examination - there was defuse contusion of the frontal scalp and of both parital scalp and of the temporalish muscles. There was mosaic fracture of the right temproperital bone and fracture line extended to the left peritotemporal bone. There was presence of extracdural blood and blood clot over right tempoperital region of brain. There was presence of subdural blood and blood clots over both hemispheres of brain but more on the right side. There was contusion of rght tempoperital bones of brain."
22. Thus, there is corroboration by medical evidence to the deposition of P.Ws.2, 3 and 4. The Investigating Officer has 8 examined as P.W.7 and defence witness Nos.1 and 2 have also been examined.
23. Looking to the evidence of witnesses before the trial court, it appears that the whole incident has taken place because of free fight between the appellant no.1 and the deceased. The act of the appellant-accused cannot be lebelled as pre-meditated act. Looking to the evidence of eye witnesses, there was no intention on the part of the appellants-accused to cause death of the deceased. There is no common intention on the part of the appellants-accused to cause death of the deceased. Even as per prosecution eye witnesses, the appellant Nos.1, 3 and 4 have not caused any injury to the deceased by any weapon. As per the medical evidence, death has taken place only because of the head injury which was inflicted upon by the appellant no.2. Thus, the appellant Nos.1, 3 and 4 were not sharing their common intention. This aspect of the matter has not been properly appreciated by the trial court.
24. Looking to the evidence of eye witnesses, there was sudden fight between the appellant no.1 and the deceased. Thereafter rest of the accused rushed at the scene of offence. Appellant Nos. 1, 3 and 4 were not carrying any weapon whereas appellant no.2 was having lathi in his hand. Only one blow has been given by the appellant no.2 of lathi (hard and blunt substance) on the deceased.
25. In these circumstances, there was a sudden fight and in the hit of passion upon a sudden quarrel and without taking any undue advantage, the whole incident has taken place at the behest of this appellant-accused. Thus, the whole case of the appellant-accused is falling within exception 4 of section 300 of the Indian Penal Code. This aspect of the matter has also not been properly appreciated by the trial court and hence, the judgment of 9 conviction and order of sentence under section 302 to be read with section 34 of the Indian Penal Code deserves to be quashed and set aside.
26. Looking to the evidence on record and looking to the medical evidence, there is only one blow given by the appellant no.2, that too by hard and blunt substance, because of the sudden fight. Though deceased had fallen down, no second blow has been given by appellant no.2. Thus, the intention of the appellant- accused can be gathered from these circumstances that there was no intention on their part to cause death of the deceased.
27. In this set of circumstances, case of the appellant no.2 is falling section 304 Part II of the Indian Penal Code. So far the appellant Nos. 1, 3 and 4 are concerned, as stated hereinabove, there was no common intention to cause injury to the deceased which has resulted into death. They were not even carrying weapons in their hands, even as per the prosecution eye witnesses. Not any injury has been caused by these accused Nos. 1, 3 and 4. In this set of circumstances, we are not inclined to hold the appellants guilty for an offence under section 302 to be read with section 34 of the Indian Penal Code.
28. Learned counsel appearing for the State has relied upon a decision rendered in a case of Gullu Mirchandani and Anr. vs. State of Jharkhand and Anr. reported in [2006 (4) East Cr. C 97 (Jhr)] .
29. Looking to the facts of this case, there was one blow given by the appellant-accused and the sentence was altered from section 302 to section 304 Part II of the Indian Penal Code.
30. Looking to the facts of the present case, there is sudden fight and the appellant-accused has not taken any undue 10 advantage and there was no pre-meditation, much less, they were sharing a common intention, of causing death of the deceased.
31. Thus, even as per aforesaid reported decision, case of the appellant no. 2 is covered by Exception No. 4 of Section 300 of the Indian Penal Code can be held guilty for an offence under section 304 Part II of the Indian Penal Code.
32. Looking to the decision in the case of Gudar Dusadh vs. State of Bihar (supra) it appears that the facts of this reported judgment are materially different than the fact of the present case. Not only that a lathi blow was given to the deceased, but, some injury was also caused, to the injured eye witnesses. The accused in the reported case then set fire to one of their huts with a view to prepare some kind of defence. These facts make the reported case different, from facts of the present case.
33. Thus, the intention can be gathered in the reported case of committing murder of the deceased whereas as per the deposition of the prosecution witnesses in this case, P.Ws. 2, 3 and 4, there was a sudden fight and because of sudden fight, a lathi blow was given on the head of the deceased and as per the P.W.6, medical evidence, death of the deceased has caused because of a head injury. Thus, case of the appellant no.2 is falling within exception 4 of section 300 of the Indian Penal Code.
34. Looking to the evidence on record, the appellants have not taken any undue advantage. In this set of circumstances, appellant Nos.1, 3 and 4 are acquitted from the charges levelled against them of committing murder of the deceased-Ismail Ansari. So far the appellant no.2 is concerned, he is convicted for an offence under section 304 Part II of the Indian Penal Code for rigorous imprisonment for 5 years with a fine of Rs.10,000/-, in case of 11 default, further rigorous imprisonment for three months is awarded to the appellant no.2.
35. Thus, the judgment of conviction and order of sentence against the appellants-accused passed by the Sessions Court for the offence under section 302 to be read with section 34 of the Indian Penal Code is hereby set aside and the appellant-accused no.2 is held guilty for an offence under section 304 Part II of the Indian Penal Code and is punished accordingly.
36. In the result, this appeal is partly allowed.
37. It is submitted by learned counsel for the State that the appellant no. 2 is on bail. Therefore, we are hereby cancell the bail bond of appellant no. 2 and he is directed to surrender judicial custody forthwith. The trial court is directed to take the appellant no.2 in judicial custody forthwith.
38. So far bail bonds of rests of the appellants are concerned, they are discharged from the liability of their bail bonds.
(D. N. Patel, J.) (R.R. Prasad, J.) Jharkhand High Court, Ranchi The 18th of August, 2009, 'NAFR/N. Dev/ Manish Kumar