Jharkhand High Court
Kaueshwar Kotwar vs State Of Jharkhand on 16 June, 2015
Equivalent citations: 2015 (4) AJR 311
Author: R.R. Prasad
Bench: R.R. Prasad, Pramath Patnaik
Criminal Appeal (D.B.) No.1190 of 2005
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Against the judgment of conviction dated 11.10.2004 and the order of
sentence dated 13.10.2004, passed in Sessions Trial No.239 of 2003 by
learned Addl. Sessions Judge, Fast Track Court No.8, Hazaribagh.
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Kauleshwar Kotwar, son of Shri Jitendra Nath Kotwar, resident of Village-
Marar, P.S. Ramgarh, District Hazaribagh (now Ramgarh).
.... ..... Appellant
Versus
The State of Jharkhand .... .... Respondent
PRESENT
HON'BLE MR JUSTICE R.R. PRASAD
HON'BLE MR JUSTICE PRAMATH PATNAIK
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For the Appellant :Mr. A.K. Sahani, Advocate
For the State :Mr. Hardeo Prasad Singh, A.P.P.
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By Court: This appeal is directed against the judgment of conviction dated
11.10.2004 and the order of sentence dated 13.10.2004, passed by the learned Addl. Sessions Judge, Fast Track Court No.8, Hazaribagh in Sessions Trial No.239 of 2003, whereby and whereunder, the court, having found the appellant guilty for committing murder of Kartik Bediya, convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-.
2. The case of the prosecution is that on 14.02.2003 at about 9 O'clock, when the informant Lakhiya Devi (P.W.10) was standing over a road in front of her house, Jitendra Kotwar (father of the appellant) came over there and after outraging her modesty, ran away. When the informant came home, she told about it to her husband-Kartik Bediya (deceased). Next day i.e. on 15.02.2003, at about 7.00 A.M. in the morning, the informant along with her husband came near the Gate of IFFCO and when they came across with Jitendra Kotwar there, they asked as to why he had done so on the previous day. The informant out of anger, slapped Jitendra Kotwar. Thereupon both of them returned home. The informant went to purchase vegetables. When came back, she found her husband dead. She came to know from the children and also from the persons residing in the neighbourhood that at about 9.30 to10.00 A.M. when her husband was on road in front of his house, the appellant came and started assaulting her husband with fist and slap during which he fell down. Thereupon, the appellant sat over his chest and smashed it. Thereafter, the appellant also assaulted him with Danda in discriminatory, as a result of which, her husband died.
3. At about 10.30 A.M., when an information was received in the Police Station Ramgarh that one person has been killed, information was entered into the station diary and then Ajay Kumar Kumar Singh (P.W.-9), the then S.I. of Police, posted at Ramgarh proceeded to the place of occurrence where he recorded the farbdeyan (Ext.3) of the informant, on the basis of which, a formal first information report (Ext.4) was drawn and the I.O. (P.W.9) took up the investigation.
4. During which course, he held inquest on the dead body of the deceased and prepared an inquest report (Ext.2) and thereafter he sent the dead body for post mortem examination, which was conducted by the Doctor Rajesh Kr. Gupta (P.W.8)), who, on holding autopsy, did find the following injuries on the person of the deceased:-
(i) Abbraison over mid chest 1/2"x1" with underlining fracture of sternum.
(ii) Abbraison over right side of chest 1"x1/2" with underlining fracture of ribs of both sides from 2nd, 3rd , 4th and anteriolaterally with associated rupture of lungs of both side with hemothorex.
Doctor issued postmortem examination report (Ext.1) with an opinion that the death was caused due to hemorrhage and shock on account of above mentioned injuries caused by hard blunt heavy object.
5. The I.O. during investigation, recorded the statement of the witnesses. On completion of the investigation when the charge sheet was submitted, the cognizance of the offence was taken against the appellant.
6. Thereupon, when the case was committed to the court of Sessions, the appellant was put on trial, during which prosecution examined as many as 10 witnesses. Of them:- P.W.1-Sulochana Bediya (nephew of the deceased), P.W.2 Dashmi Dev, P.W.3 Meena Devi (niece of the deceased), P.W.5 Nand Kishor Bediya (nephew of the deceased) and P.W.7 Ashok Karmali (neighbour of the deceased) are the eye witnesses, who did testify that they saw the appellant assaulting the deceased with fist and slap and then smashed the chest of the deceased with Lathi, as a result of which, he died. They have also stated about the motive of the occurrence, which is there in the first information report, regarding modesty of the informant being outraged by the father of the appellant, who had been assaulted by the informant and had been scolded by the deceased. P.W.4-Ramashish Karmali, P.W.6-Rinku Karmali and also P.W.10 (informant-Lakhiya Devi) are the hearsay witnesses.
7. After the closure of the prosecution case, when the appellant was questioned about incriminating materials appearing against him under Section Section 313 Cr.P.C., he denied. Thereupon, the court, finding all the eye witnesses, such as P.Ws.1, 2, 3, 5 and 7 to be trustworthy, whose testimonies getting corroboration from the medical evidence, did find the appellant guilty for committing murder of the deceased-Kartik Bediya and, accordingly, recorded the order of conviction and sentence, which is under challenge.
8. Mr. Sahani, learned counsel appearing for the appellant submits that accepting the testimonies of the witnesses to be true, offence never falls within the parameter punishable under Section 302 of the Indian Penal Code. In other words, it was submitted that the case never happens to be a case of culpable homicide rather happens to be a case of culpable homicide, not amounting to murder, for the reason that the appellant came to the place of occurrence barehanded and assaulted the deceased with fists and slaps and subsequently, by Lathi, but admittedly the appellant never assaulted the deceased on his head and, thereby, the appellant had never intended to kill the deceased but the court below did not consider this aspect of the matter, in right perspective, and thereby, the court below can be said to have committed illegality in convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and, thereby, 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 the evidences are there to the effect that the appellant, first assaulted the deceased with fist and slap and then smashed his chest and thereupon went home brought Danda and assaulted the deceased over his chest, causing fracture of ribs and sternum and, thereby, the case certainly falls within the parameter of offence punishable under Section 302 of the Indian Penal Code and, thereby, the court did not commit any illegality and hence, the judgment of conviction and the order of sentence never warrants to be interfered with.
10. Having heard learned 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 P.W.10 and also the eye witnesses i.e. P.Ws. 1, 2, 3, 5 and 7, that on 14.02.2013 while the informant Lakhiya Devi (P.W.10) was standing over the road in front of her house, Jitendra Kotwar-father of the appellant, came over there and outraged her modesty and then ran away. On the next date i.e. on 15.02.2003, the informant as well as her husband Kartik Bediya (deceased) came to IFFCO Gate where they found Jitendra Kotwar present, the deceased scolded him as to why he had done so on the previous day. At the same, the informant slapped him. Further case of the prosecution as it appears from the testimonies of the eye witnesses i.e. P.Ws. 1, 2, 3, 5 and 7 is that on the next day while, the deceased was on the road in front of his house, the appellant came, abused him and, thereafter, assaulted with fist and slap and then sat on his chest and smashed it and, thereafter he assaulted the deceased with Danda indiscriminately.
11. It be stated that some of eye witnesses have testified that the deceased was first assaulted with Danda and then fist and slap whereas other witnesses have stated that the appellant assaulted the deceased, first with fist and slap and then with Danda but these are the minor discrepancies, which hardly effect the case of the prosecution. All the witnesses who claimed to have seen the occurrence, seem to be the natural witnesses, who, at the time of occurrence, either were in their houses or came out, when they heard some kind of Hulla and some of them were in the near vicinity of the place of occurrence. Nothing seems to have been elicited by the defence in their cross-examination so as to raise any doubt over the trustworthiness of their testimonies. Under the circumstances, there appears to be no reason not to place reliance on their testimonies that they saw the appellant assaulting the deceased. On account of deceased being assaulted by the appellant by Lathi, the deceased did sustain two injuries, which have been found by the Doctor and those injuries are also associated with fracture of sternum and ribs, causing rupture of lungs, resulting into his death. Thus, the prosecution has been able to establish that the appellant did assault the deceased causing injuries, resulting into his death.
12. Now the question does arise as to whether in the facts and circumstances, the case happens to be a case of culpable homicide or culpable homicide, not amounting to murder?
13. According to Mr. Sahani, learned counsel appearing for the appellant, the appellant, at first instance, as per the testimonies of the witnesses, came barehanded, which itself indicates that he may not have any intention to commit murder of the deceased only when there was exchange of abuse, the appellant did assault first with fists and slaps and then with Lathi but even if the injuries have been caused by Lathi, which proved to be fatal, the appellant cannot be said to have had intention to commit murder of the deceased, as admittedly, the appellant did not make any assault over the head of the deceased.
14. True it is that the appellant first came barehanded and then assaulted the deceased with fist and slap and thereupon by Lathi over the chest, causing injuries but not on his head. But the injuries, which were caused, were sufficient, according to Doctor, to cause death. Under the circumstances, it would be presumed that the appellant had intention to cause death, unless the evidence and the circumstances warrant an opposite conclusion. In this regard, we may refer to a decision rendered in a case of Virsa Singh Vs. State of Punjab (AIR 1958 SC 465) wherein it has been observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
15. Their Lordships explained it further in the manner which is being given hereinunder:-
"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
emphasis supplied
16. Coming to the facts of the case, it be noted that the appellant came abused the deceased presumably for the reason that the deceased had abused and the informant had assaulted his father, as the father of the appellant had outraged the modesty of the wife of the deceased i.e. informant (P.W.10).
17. Further as per the testimonies of the witnesses, the appellant assaulted the deceased first with fist and slap and then sat over his chest and smashed it and then as per the testimony of P.W.3, the appellant went away and then brought Danda with him and assaulted with Danda, causing injury associated with the fracture on ribs and sternum. Under the circumstances, it can never be said that the appellant had had no intention to commit murder.
18. Thus, we do find that the prosecution has been able to prove its case being of culpable homicide. Consequently, we do not find any illegality with the judgment of conviction and the order of sentence and hence, it is affirmed.
19. In th result, this appeal fails, and accordingly, it is dismissed.
( R.R. Prasad, J) (Pramath Patnaik, J) Jharkhand High Court, Ranchi The 16th June, 2015 N.A.F.R/Ravi