Jharkhand High Court
Ashok Dubey & Ors. vs State Of Jharkhand on 8 August, 2017
Author: H.C. Mishra
Bench: H.C. Mishra, Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Cr. Appeal (D.B.) No. 928 of 2006.
(Against the Judgment of conviction dated 21.06.2006 and Order of
sentence dated 23.06.2006, passed by the 1st Additional Session Judge,
Chatra, in Session Trial No. 608 of 1993.)
........
1. Ashok Dubey,
2. Ajay Kumar Dubey,
3. Jashwant Dubey,
4. Himansu Dubey ..... Appellants.
Versus
The State of Jharkhand. ..... Respondent.
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PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellant : Mr. P.C. Tripathy, Advocate.
Mrs. M. Upadhyay, Advocate
For the State : Mr. A.P.P.
.........
Reserved on 24.07.2017 Delivered on 08/08/2017
Ananda Sen, J:- Heard learned Sr. counsel for the appellants and the learned
Addl. P.P. for the State.
2. The appellants have preferred this appeal against the Judgment of
conviction dated 21.06.2006 and Order of sentence dated 23.06.2006,
passed by the 1st Additional Session Judge, Chatra, in Session Trial No. 608
of 1993, by which the appellants have been convicted for committing
offence under sections 307/149 and 302/149 of the Indian Penal code.
Further appellant Ashok Dubey and Jashwant Kumar Dubey have been
found guilty for the charge under section 148 of the Indian Penal Code and
accused Himansu Kumar Dubey and Ajay Kumar Dubey have also been
found guilty for the under section 147 of the Indian Penal Code. After the
said conviction, they have been sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs. 5000/- each for the charge
under section 302/149 of the Indian Penal Code and in default of payment
of fine they were further sentenced to undergo R.I. For six months. The
convict Ashok Kumar Dubey and Jashwant Kumar have been further
sentenced to undergo R.I. For 2 years each for the charge under section 148
of the Indian Penal Code and the convict Himansu Kumar Dubey and Ajay
Kumar Dubey have been further sentenced to undergo R.I. for one year
each for the charge under section 147 of the Indian Penal Code. No
separate sentence was passed under section 307/149 of the Indian Penal
Code. It was directed that the sentences to be run concurrently.
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3. The prosecution case is based on the fardbeyan of the informant
Rajesh Kumar Dubey (P.W.3), who stated that on 29.06.1992 at about 8.00
A.M. he was sowing maize seeds in the land situated towards the west of
his house when his father Alakh Narayan Dubey (deceased) went to call
labourer in the village. The informant heard alarm of his father and came
running there and he saw accused Raghuwar Dubey (dead during the trial)
armed with Lathi, Jashwant Kumar Dubey and Ashok Kumar Dubey armed
with Farsa (sharp cutting weapon) and Himansu Kumar Dubey armed with
sword and Ajay Kumar Dubey armed with dagger and Lathi, were abusing
his father. The informant protested and tried to restrain the accused persons,
whereupon Raghuwar Dubey ordered the other accused persons to kill the
father of the informant. On receipt of such command, Ashok Kumar Dubey
and Jashwant Kumar Dubey assaulted his father by Farsa on his head
resulting in cut injury. Ajay Kumar Dubey and Raghuwar Dubey assaulted
his father by Lathi on his back, which also caused injuries. The informant
stated that he along with his brother, Dinesh Kumar Dubey, wanted to save
his father, but the accused persons also assaulted them by Farsa. When
alarm was raised, the villagers, namely, Dhaman Singh, Rajdeo Singh,
Chandrabasu Dubey and others reached at the place of occurrence and
saved them from further assault. The informant took his father to Chatra
Hospital, where his father and brother were treated and his father is still in
unconscious state.
4. On the basis of the aforesaid Fardbeyan Chatra P.S. Case No. 113 of
1992, under sections 147, 148, 149, 323, 324, 307 of the Indian Penal Code
was registered against the accused persons, in which Raghuwar Kumar
Dubey and Sudhansu Kumar Dubey were also shown as accused, but they
died during the trial.
5. In course of treatment, Alakh Narayan Dubey died in R.M.C.H.,
Ranchi, thus, on the prayer of the investigating officer section 302 of the
Indian Penal code was added.
6. The Police investigated the case and after competition of
investigation filed charge sheet under section 147, 148,149, 323, 307 and
302 of the Indian Penal Code. Cognizance was taken of the aforesaid
offence and thereafter since the case was exclusively triable by the Court of
Session, the same was committed to the Court of Session for trial.
7. Learned trial Court framed charges against the accused persons and
as they pleaded 'not guilty' to the charges, they were put on trial.
8. Altogether eight witnesses were examined on behalf of the prosecution.
In quest report, postmortem report, F.I.R. including several signatures were
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exhibited by the prosecution.
9. After closure of the prosecution witnesses, the statements of the accused
were recorded under section 313 of the Code of Criminal Procedure.
10. The defence has also adduced one witness.
11. After hearing the arguments advanced on behalf of the accused
persons and State and after going through the records of the case, the trial
Court convicted the appellants and sentenced them for committing offence
under sections 307/149 and 302/149 of the Indian Penal Code. Further
appellant Ashok Dubey and Jaswant Kumar Dubey have been found guilty
for the charge under section 148 of the Indian Penal Code and accused
Himansu Kumr Dubey and Ajay Kumar Dubey have also been found guilty
under section 147 of the Indian Penal Code. Aggrieved by the said
judgment of conviction and order of sentence, these appellants have
preferred this appeal before this Hon'ble Court.
12. The learned Sr. Counsel Mr. P.C. Tripathy, appearing on behalf of
the appellants submitted that on the facts of the case and on the evidence,
which has been gathered in this case, the appellants could not have been
convicted for the offence under sections 302/149 of the Indian Penal Code.
He submits that the deposition of P.W.3 categorically suggests that there
was no intention on the part of any of the appellants to commit murder of
the deceased. He further submits that injury report and the inquest report
also suggests that no case under section 302 of the Indian Penal Code is
made out against the appellants. It is further submitted that P.W.3, the
informant of the case is not a reliable witness as it is evident from the
statements that his statement is not consistent. It has been further argued
that as per the statement of the informant he was also injured in the
occurrence, but there is nothing on record to suggest that he was at all
injured. Further from the evidence of P.W. 2 it would be evident that the
informant reached the place of occurrence after the alleged assault, thus,
the entire evidence of P.W.3 on the point that he was an eye witness, gets
demolished. It is submitted that there was admitted land dispute between
the parties, as such, there is a chance of false implication of the appellants
at the instance of the informant. He submits that though the witnesses have
stated that several villagers assembled at the place of occurrence, but none
of the independent witness has been examined. It is lastly submitted that on
the facts of the case and the evidence recorded, the appellants are liable to
be acquitted.
13. The learned Addl. P.P. submits that there is sufficient evidence on
record to convict the appellants under section 302 of the Indian Penal Code.
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It is submitted that admittedly the appellants formed an unlawful assembly
and they were armed with deadly sharp cutting weapons, which suggests
that there was an intention on the part of these appellants to commit murder
of the deceased. He submits that after order was given by Raghuwar Dubey,
the assault was carried out, which also suggests the intention of the
appellants to commit murder of the deceased. It is submitted that small
contradictions cannot be a ground for acquitting the appellants of the
charges under section 302 of the Indian Penal Code. It is submitted that the
evidence of the witnesses are consistent which clearly suggests the
involvement of the appellants in committing murder of the deceased. On
this basis it is submitted that the appellants have been rightly convicted
and sentenced for committing offence under sections 307/149 and 302/149
of the Indian Penal Code. Further appellant Ashok Dubey and Jaswant
Kumar Dubey have been found guilty for the charge under section 148 of
the Indian Penal Code and accused Himansu Kumar Dubey and Ajay
Kumar Dubey have also been found guilty for the under section 147 of the
Indian Penal Code.
14. As mentioned here in above, to prove the case of the prosecution, the
prosecution has examined eight witnesses.
P.W.1 is Dhaman Singh @ Ghanshyam Singh, who stated that the
occurrence is of the year 1992 and at that time he was ploughing his field.
He states that he heard scream and saw Ashok Dubey and Jaswant Dubey
assaulting Alakh Narayan Dubey with lathi. He stated that Farsa (sharp
cutting weapon) was attached with the stick, but the assault was made from
other side i.e. from back portion and not by the sharp side. He also stated
that Sudhansu Dubey and Ajay Dubey also assaulted by Lathi. He also
stated that when sons of Alakh Narayan Dubey, namely, Rajesh Dubey and
Dinesh Dubey came to save their father, they were also assaulted. Rajesh
Dubey was assaulted by lathi as a result of which blood started oozing out
from his body. Alakh Narayan Dubey became unconscious. He was taken
to the Hospital from where he was referred to Ranchi. After two days dead
body of Alakh Narayan Dubey was brought in the village. In paragraph no.
14 he stated that the informant Rajesh Dubey and accused are agnates and
there is no dispute between them in respect of partition of the lands. He
stated that Jashwant Dubey is in Army. He stated that after the assault,
villagers reached at the place of occurrence. He stated that he had given his
statement before the Police. Nothing more could be extracted from him in
his cross-examination by the defence.
15. P.W. 2 is Rajdeo Singh, who stated that the occurrence is of the year
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1992 and he was present at the place of occurrence. He stated that Alakh
Narayan Dubey,Ashok Dubey,Himansu Dubey were going together
towards village. He stated that he was also with them. He deposed that
Ashok Kumar Dubey then assaulted Alakh Narayan Dubey with Lathi. He
stated that Himansu Dubey also assaulted with Lathi, as a result of which
he fell down and he became unconscious. He stated that accused Ajay
Dubey, Jashwant Dubey and Sudhansu Dubey were also there. They were
armed with Lathi. He stated that sons of Alakh Narayan Dubey, namely,
Rajesh Kumar Dubey and Dinesh Dubey came to the place of occurrence.
The accused also assaulted Rajesh on his head, as a result of which he
sustained injury on the back of his head and blood started oozing out. He
further stated that he also received injury on his left leg as he tried to save
the informant. He stated that Dinesh was also injured due to the assault
made upon him by Jashwant. Alakh Narayan Dubey was taken to Chatra
Hospital and this witness came to learn that he was then referred to Ranchi.
He stated that on the next day, the dead body of Alakh Narayan Dubey was
brought in the village. He stated that Alakh Narayan Dubey, Ashok Dubey
and Himansu Dubey were all going together towards the village. He states
that Rajesh Kumar Dubey and Dinesh Dubey came after 15 minutes of the
occurrence and at that point of time Alakh Narayan Dubey was alive. He
could not see, who assaulted Rajesh and Dinesh, but he saw that the blood
was oozing out from their bodies.
16. P.W.3 Rajesh Kumar Dubey is the informant. He stated that occurrence
had taken place on 29.06.1992. He stated that his father went in search of
labourer in the village and he was sowing maize seeds in his field when
suddenly he heard scream of his father and he rushed to the place of
occurrence. He saw Raghuwar Dubey armed with lathi, Jaswant Dubey
armed with Farsa, Ashok Dubey armed with Farsa, Himansu Dubey having
lathi in his hand and a sword was tied in his waist, Ajay Kumar Dubey
armed with Lathi and Sudhansu Kumar Dubey armed with lathi attached
with spear. All of them surrounded his father and were abusing him. When
the informant confronted the accused persons, then Raghuwar Dubey
ordered to kill him. On hearing such order Ashok Dubey assaulted with
Farsa and thereafter again assault was made with back side of Farsa. When
his father fell down on the ground,Himansu Dubey assaulted him by Lathi
on his head and Ajay Dubey and Sudhansu Dubey started assaulting with
lathi on Alakh Narayan Dubey.He stated that the accused persons also
chased the informant and his brother. Ashok Kumar Dubey struck with
Farsa on the head of the informant as a result of which he sustained injury
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on the back side of the head. He stated that in the meantime many villagers
assembled there and thereafter the accused persons fled away to their
house. His father was taken to Chatra Hospital, where the statement of the
informant was recorded. For better treatment the injured was referred to
R.M.C.H. Ranchi. The father of the informant was in unconscious state.
Ultimately on 30.06.1992 at about mid night he expired. After postmortem,
the dead body was brought in the village, where it was cremated. He stated
that on 09.07.1992 a letter allegedly written by M.C.C. was received,
wherein it was written that if any one gives evidence in this case, they will
be murdered. He stated that Jashwant Dubey is in military and he lodged a
case against the informant and they were restraining the informant from
giving evidence. He stated that he was also threatened and was attacked by
firearms earlier, but in the said occurrence his brother-in-law (Sala) died of
firearm injury. He stated that both the accused Ashok Dubey and Himansu
Kumar Dubey are in custody in connection with Chatra P.S. Case No. 178
of 2003. He stated that he is regularly getting threats from the accused
persons. He identified the signature on the Fardbeyan, which was marked
as Ext.1. He stated that there was a Panchayati in relation to partition and
because of such land dispute, his father was murdered. He admitted that the
accused and the deceased are agnates and there was a dispute going on
between them in relation to partition of land since one year. He says that he
is not aware about the extent of the land which his father had sold, but can
say about the lands, which remained unsold. He further stated that through
Himansu was carrying sword, but he assaulted with Lathi (stick) on the
head. He stated that from the back side of Farsa his father was assaulted.
He stated that he had also sustained injury. He was treated in Chatra
Hospital and he was not admitted there. He stated that there is only one
injury on his person. He stated that his father was treated in Chatra Hospital
and thereafter he was taken to Ranchi. His father was unconscious state. He
described the place of occurrence also.
17. P.W.4 is Chandra Basu Dubey has stated that on the date of
occurrence he was ploughing his field when he heard some hue and cry in
the village. He reached there and saw Raghuwar Dubey, Jashwant Dubey,
Ashok Dubey, Himansu Dubey, Sudhansu Dubey, Ajay Dubey were
surrounding Alakh Narayan Dubey.Raghuwar Dubey was telling to kill
Alakh Narayan Dubey. Ashok Dubey with back side of Farsa assaulted
Alakh Narayan Dubey on his head. Again Jashwant Dubey from the back
side of the Farsa assaulted Alakh Narayan Dubey with intention to kill,
these persons assaulted him. Himansu Dubey was having a sword and a
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Lathi but he assaulted with Lathi. Sudhansu Dubey was having spear, but
he assaulted with Lathi, Rajesh Dubey wanted to save his father, but he was
also assaulted by Raghuwar Dubey, Jashwant Dubey and Ajay Dubey, then
he took shelter in the house of Rajesh Dhaman Singh. The injured Alakh
Narayan Dubey was taken to Chatra Hospital, from where he was referred
to Ranchi. He stated that on the next day the dead body was brought in the
village. He also stated that there was a land dispute between the parties. He
stated that brother of Ashok Dubey is threatening him not to give evidence.
It is stated that the accused also came to murder Rajesh Dubey, but due to
mistake they committed murder of Suresh Kumar Dubey,for which a
separate case has been lodged. He stated that Rajesh Kumar Dubey is his
nephew. He stated that he resides separately but the courtyard is same. He
stated that the accused persons are his agnates. He stated that there is no
dispute in relation to the partition of the land. He stated that there was an
oral partition amongst the parties. He stated that his land in which he was
residing is about 200-250 yards from the place of occurrence. He stated that
Ashok Dubey assaulted once with back side of Farsa. He stated that
Himansu Dubey, Ajay Dubey and Sudhansu Dubey assaulted with lathi on
several occasions. He stated that Alakh Narayan Dubey received head
injuries. He stated that he was not assaulted. He stated that with the wooden
stick of the spear Alakh Narayan Dubey was assaulted. Rajesh was also
assaulted. Alakh Narayan Dubey was treated at Chatra Hospital and
thereafter he was taken to Ranchi. He stated that on the next day the dead
body was brought in the village. He gives the relationship between the
parties with him.
18. P.W.5 is Dinesh Kumar Dubey, who has stated that Raghuwar
Dubey, Jaswant Dubey and Ajay Dubey were abusing his father when he
reached at the door of Dhaman Singh@ Ghanshyam Singh,in the
meantime Raghuwar Dubey directed the accused persons to kill them. Then
Ashok Dubey and Jaswant Dubey assaulted his father with back side of
Farsa as a result of which he received injury and fell down. Ajay Dubey,
Sudhansu Dubey, Himansu Dubey also assaulted him with Lathi. This
witness tried to save his father, but Ajay Dubey and Sudhansu Dubey
assaulted him with Lathi on his leg and back. Rajesh Dubey was also
assaulted by Jashwant Dubey and Ashok Dubey. His father was taken to the
house in unconscious state and from where he was taken to Kanha Chati
and then he was taken to Chatra Hospital. For better treatment he was
further taken to Ranchi, where he died. His father are five brothers, all
brothers are separate in mess also, but every one was connected to each
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other. He could not say what was the extent of land in the share of each of
the family. He gave the description of place of occurrence. He deposed that
Jashwant Dubey gave one or two lalthi blows on the head of his father and
Ajay and Sudhansu gave one-two lathi blows to his father. He stated that
there were marks of injury on the body of his father. He stated that blood
was also oozing out from the body of his father. He stated Jashwant Dubey
is in Army since long. He stated that the injured was taken to Kanha Chati
where from Dr. Bikram Babu came and referred the injured to higher
centre. The status of the victim was serious. He denied the suggestion that
levy was being demanded by M.C.C.
19. P.W. Dr. Nityanand Mandal, who examined Alakh Narayan Dubey. He
found the following stiched wound:
(I) Stiched wound over scalp in A.P. directed margin lacerated after
removal of stitch wound was 5"x 1/4" into scalp deep, red in colour.
(II) Lacerated wound 6"x1/4" scalp deep read in colour. A.P.
directed over mid of vertex. Both above wound was 1 ½ distance
apart.
He also found the patient was deeply unconscious and features were
suggestive of had injuries. He stated that the weapon used was hard and
blunt object and suggested that it can be by the opposite side of Farsa. In
cross-examination he stated that wounds, which were stiched were there
from before his examination. He stated that he only examined Alakh
Narayan Dubey and he has not examined any of his family members nor
there is any report of such examination.
20. P.W.7 is Indradeo Singh, who was the Investigating Officer of the case.
He exhibited the Fardbeyan as Ext.5 and the endorsement on the fardbeyan
is marked as Ext.5/1. Formal F.I.R. was marked as Ext.6. He recorded the
restatement of the informant and inspected the place of occurrence. He
gives boundary of the place of occurrence. He stated that deceased died in
R.M.C.H., Ranchi. He stated that he submitted charge sheet under sections
147, 148,149, 323, 324, 307 and 302 of the Indian Penal code. He stated
that he had not seized the blood stained earth. He stated that he could not
find any weapon in the house of accused persons. He stated that the
occurrence had occurred due to land dispute. He stated that Chandrabasu
Dubey did not tell him that Himansu was carrying sword.
21. P.W.8 is Dr. Renu Bala, who conducted the postmortem upon the dead
body of the deceased. He stated that head of the deceased was bandaged.
He found the following wounds:
(1) Stiched wound-7x1 c.m. On the right frontal and
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parietal region of head, situated vertically (lacerated).
(2) Lacerated wound not stiched 9x1 c.m. On the left
fronal region of head situated vertically.
(3) Internal Injury-
(i) There was contrusion of frontal parietal and temporal
region of scalp.
(ii) Crack fracture of right frontal and temporal bone
measuring 11 c.m. with separation of coronal sature on
the right side.
(iii) Crack fracture of left frontal bone measuring 8 c.m. And 2
2 /2 c.m. In continuation of both sides.
(4) Crack fracture of left temporal and parietal bone
measuring 9 c.m.
(5) There was intra and subjunal bleeding on both sides of
brain but more on left side.
(6) There was laceration of left frontal lobe of the brain and
presence of blood clot 30 gm in the area of left temporal
region.
As per the opinion of this Doctor the cause of death was head injury. It
was opined that all the above injuries were ante-morten caused by hard and blunt
substance.
22. Defence has also adduced one witness, namely, Awadhesh Upadhyay,
who stated that there was land dispute amongst the brothers and he tried to
deposed that M.C.C. (banned organization) had role in the occurrence.
23. From the aforesaid evidence adduced by the prosecution, it is to be
seen whether the prosecution has been able to prove the charge leveled
against the appellants or not?
24. From the evidence of P.Ws.1,2,3,4 and 5 it is quite clear that there was
assault on the deceased. P.W.3 says that he was in his field when he heard
scream of his father. He reached at the place of occurrence and saw the
assault. P.W.1 on the other hand says that he was along with deceased when
the occurrence has taken place. He also stated that the accused persons and
the deceased together were going towards the village when the occurrence
had taken place. He says that P.W.3, who is the informant, reached at the
place of occurrence after some time. P.W. (informant ) says that he was
assaulted by the appellants when he tried to save his father. Similar is the
statement of P.W.5,the brother of the informant. There is consistent
evidence that Ashok Dubey and Jaswant Dubey from the back side of the
Farsa assaulted the deceased. Thus, on the point of assault there is
consistent evidence and the same cannot be discarded. From the evidence it
cannot be said that there was no assault on the deceased. Counsel for the
appellants tried to argue on the point that allegation is omnibus in nature
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and there is no specific role attributed against any of the accused. This
argument cannot be accepted as these witnesses have clearly stated about
the role played by each of the accused. It is also the prosecution case that
the deceased was taken to Chatra Hospital and thereafter he was referred to
Ranchi, where he died. The defence tried to convince this Court that the
occurrence has taken place at the instance and by the M.C.C.Group, but
there is no such evidence to substantiate their claim, rather it has come in
evidence that there was some dispute amongst the parties in respect of
partitioning of the land. All the witnesses clearly stated that the parties are
related to each other, being agnates. Thus, there is no dispute that the
appellants have assaulted the deceased.
25. Doctor (P.W.6) who has firstly checked the deceased when he was
alive and was in unconscious state, he stated that there was stiched wound
from before. This means before coming to this witness the injured was
treated somewhere else. This witness says that there was injury on the head
of the deceased. Doctor(P.W.8), who has conducted the postmortem and
proved the report also states that deceased died due to assault on the head.
Thus, from the aforesaid facts and the evidence adduced by the
prosecution, it is clear that the deceased died because of the head injury.
26. So far the assault on P.W.3 and P.W.5 are concerned, there is only oral
evidence, though these witnesses have stated that they were also assaulted,
but there is not a single chit of paper to show that they were also treated for
the injuries sustained by them because of the assault. These witnesses have
stated that they have gone to the Doctor but no evidence has been produced
P.W.6 specifically stated that he only examined the deceased, but he has not
examined any family members. Thus, from this fact it is difficult to say
whether these P.W.3 and P.W.5 were assaulted with intention of committing
murder. The nature of injuries and its extent has not been proved by the
prosecution, so far as these P.W.3 and P.W.5 are concerned. This is a latch
on the part of the prosecution.
27. Now on the aforesaid background, it is to be seen as to whether there
was an intention of the appellants to commit murder of the deceased?
28. All the witnesses have specifically and categorically stated that the
deceased was assaulted with lathi and by back portion of Farsa and spear
(Bhala). Farsa and Bhala are admittedly sharp cutting weapons. Witnesses
also stated that Himansu Dubey was carrying sword with him,but he did
not assault the deceased with sword, rather he assaulted him with Lathi.
Thus, it is admitted that no one assaulted the deceased with sharp cutting
weapon, even though they possessed the same. Post-mortem report also
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suggests that all the injuries are by means of hard and blunt substance. The
assault was indiscriminately made resulting in death of the deceased, but
the fact remains that the assault was not made by sharp cutting weapons,
rather by Lathi or by back side of the Farsa even though sharp cutting
weapon could have been used by the appellants.
29. It is pertinent to refer the judgment of Hon'ble Supreme Court in the
case of Selvam Versus State of Tamil Nadu represented by Inspector of
Police report in (2012) 10 Supreme Court Cases 402. In that case also
assault was made by the accused but not by sharp side of the weapon,but by
blunt side and also by stick. The Hon'ble Supreme Court in the said case
relying upon a case of the State of Punjab V. Tejinder Singh, reported in
1995 Supp.(3) SCC 515, has held that the trial Court was not correct in the
facts to convict the appellant under section 302 of the I.P.C., rather the
conviction should have been under section 304 Part-1 of the I.P.C. Similar
is the case decided by the Hon'ble Supreme Court in the case of Ram Asrey
Versus State of Uttar Pradesh, reported in 2003 Supp. (4) Supreme Court
Cases 218, wherein after considering the nature of injuries and the manner
of assault, the Hon'ble Supreme Court has held that conviction under
section 302 of the I.P.C. is not justified, rather conviction should be under
section 304 Part-1 of the I.P.C.
30. In the case in hand, as discussed earlier, I find that though there were
sharp cutting weapons in the hands of the accused persons, but they did not
assault the deceased with sharp cutting weapons, rather they assaulted the
deceased with the opposite side and also by means of Lathi. From these
admitted facts, it can be inferred that assailants had no intention to cause
death. Now applying the decisions of the Hon'ble Supreme Court it can be
held that the conviction of the appellants on the facts of the case under
section 302 of the I.P.C. is bad and is liable to be set aside.
31. Thus, the conviction of the appellants under section 302 of the Indian
Penal Code is set aside but the appellants are liable to be convicted under
section 204(Part-1) of the Indian Penal Code. Accordingly, the conviction
of the appellants(1) Ashok Dubey, (2) Ajay Kumar Dubey, (3) Jashwant
Dubey and (4) Himansu Dubey for committing offence under section 302
of the Indian Penal Code as well as their sentence to undergo rigorous
imprisonment for life is set aside and the appellants are convicted under
section 304(Part-1) of the Indian Penal Code and they are sentenced to
undergo R.I. for 10 years along with fine of Rs. 10,000/- (Ten thousand)
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each.
32. Appellant no.1, Ashok Dubey and appellant no.3, Jshwant Dubey are
already in custody for more than 10 (ten) years. Thus, they should be
immediately released from the custody, if not wanted in any another case.
So far appellant no.2, Ajay Dubey and appellant no.4 Himansu Dubey are
concerned, they are on bail and have not completed 10 years of custody.
Thus, the bail bonds of appellant no.2, Ajay Dubey and appellant no.4,
Himansu Dubey are cancelled and they are directed to surrender before the
trial Court within three weeks from today to serve the rest of the sentence.
The trial Court to issue process compelling their surrender/production for
serving out the sentence.
33. The appeal is, thus, allowed in part to the extent indicated above and
judgment of conviction dated 21.06.2006 and Order of Sentence dated
23.06.2006, passed by the 1st Additional Session Judge, Chatra, in Session Trial No. 608 of 1993 is modified accordingly.
34. Let the lower Court records along with a copy of this judgment be sent to the trial court forthwith.
( H.C. Mishra, J.) H.C. Mishra,J, I agree (Ananda Sen,J) High Court of Jharkhand at Ranchi Dated 08.08.2017.
NAFR/ Sharma/