Jharkhand High Court
Bhola Yadav & Ors vs State Of Jharkhand on 15 September, 2015
Equivalent citations: 2015 (4) AJR 215
Author: R.R.Prasad
Bench: R.R.Prasad, Pramath Patnaik
Criminal Appeal (D.B) No.834 of 2004
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Against the judgment of conviction dated 27.4.2004 and order of
sentence dated 28.4.2004 passed by the Additional Sessions
Judge, FTC VII, Hazaribagh in S.T. No.468 of 2001.
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1. Bhola Yadav son of Parmeshwar Yadav
2. Kameshwar Yadav son of late Sanu Yadav
3. Naresh Yadav son of Kameshwar Yadav..............Appellants
VERSUS
The State of Jharkhand ..................................... Respondent
For the Appellants: M/s.B.M.Tripathy, Sr. Advocate
Mahesh Kumar Sinha and
Naveen Kumar Jaiswal, Advocate
For the State : Mr. Nehru Mahto, A.P.P
P R E S E N T
THE HON'BLE MR. JUSTICE R.R.PRASAD
THE HON'BLE MR. JUSTICE PRAMATH PATNAIK
By Court: The aforesaid three appellants were put on trial
along with one Parmeshwar Yadav (died during the pendency of this appeal) on the accusation of committing house trespass for the purpose of wrongful confinement of one Ram Chandra Yadav who in furtherance of common object was done to death. The court while acquitting the appellants and one Parmeshwar Yadav for the charges under Sections 147, 148, 307 found them guilty for the offence punishable under Section 302/34, 342 and 452 of the Indian Penal Code and accordingly, recorded the judgment of conviction dated 27.4.2004 and sentenced them vide its order dated 28.4.2004 to undergo imprisonment for life and to pay a fine of Rs.2000/- for the offence under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- for the offence under Section 452 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of one year for the offence under Section 342 of the Indian Penal Code. All the sentences were ordered to run concurrently.
2The case of the prosecution is that on 30.5.2001 at about 8 p.m. the appellant Bhola Yadav came in front of the house of the deceased Ram Chandra Yadav where exchange of abuses took place in between the appellant Bhola Yadav and the deceased Ram Chandra Yadav. The informant Dhirendra Yadav (P.W.1) son of the deceased, asked Bhola Yadav not to abuse his father. In the meantime, Bhola Yadav gave a lathi blow on the head of the deceased, as a result of which the deceased fell unconscious. At that point of time, villagers Ram Nath Yadav (not examined) and one Bali Yadav (P.W.5) reached over there and brought the injured to Varandah where they put injured to message, as a result of which Ram Chandra Yadav regained consciousness. After some times at about 9 O'clock while Ram Chandra Yadav was strolling in front of his house and Surendra Yadav (P.W.2), son of the deceased, Jitine Devi (P.W.6), the wife of the deceased, Wahni Devi, second wife of the deceased and Faguni Devi, mother of the deceased were sitting at the door of the house, the appellants as well as Parmeshwar Yadav, Dhano Devi, wife of Kameshwar Yadav, Parvatia Devi, wife of Bhola Yadav came over there armed with lathi and danda and started abusing them. They started assaulting Ram Chandra Yadav to whom when Dhirendra Yadav (P.W.1), informant came to rescue, he was also assaulted by the accused Parmeshwar Yadav. Thereupon all the appellants took Ram Chandra Yadav to their house by assaulting him. When Ram Chandra Yadav started raising distress sound, the informant Dhirendra Yadav informed to his uncle, Tapeshwar Yadav (P.W.4), who came there along with Nima Yadav, Chakku Yadav, Inder Yadav and saw all the appellants assaulting Ram Chandra Yadav. When the informant and his uncle Tapeshwar Yadav tried to rescue Ram Chandra Yadav, they were assaulted by lathi. Thereupon the appellants brought Ram Chandra Yadav out of the 3 house and dumped him under a Machan. When the villagers assembled, the appellants and other accused persons fled away.
On the next date, i.e.31.5.2001 at about 5 a.m. when Sub- Inspector Nikhila Nand Das (P.W.11) posted as In-charge at Pelawal outpost received rumor someone has been killed in village Kusumbha, he entered such information in the station diary and proceeded to the said village. At about 5.30 a.m. when he came to the village Kusumbha, he found the dead body of the deceased near Machan of the appellant Kameshwar Yadav. There he recorded Fardbeyan (Ext.4) of the informant, who narrated about the incident as has been stated above. The informant has further stated about the motive of the occurrence wherein it was disclosed that Parmeshwar Yadav (died during the pendency of this appeal) had digged earth from the field belonging to the deceased for putting cow dung and that had led to altercation.
On the basis of said Fardbeyan, a case was registered under Sections 147, 148, 149, 448, 341, 323, 324, 307 and 302 of the Indian Penal Code and a formal FIR was drawn. The case was taken for investigation by P.W.11, who held inquest on the dead body of the deceased and prepared an inquest report (Ext.6). He sent the dead body for post mortem examination, which was conducted by Dr. Marshal Aind (P.W.9), who upon holding autopsy on the dead body found following injuries.
(i) Abrasion-at right clavicular area 1" x ½",left side of neck 1" x ½"
(ii) Internal Examination- both sides of ribs were found fractured, on left 2nd to 7th ribs, right side-2nd to 8th ribs, lungs were found ruptured.
Doctor issued post examination report (Ext.3) with an opinion that death was caused by haemorrhage and shock. 4
P.W.11 had also examined Tapeshwar Yadav. Upon examination, he did find following injuries.
(i) clean cut wound on scalp 2" x ½ " x scalp deep
(ii) swelling on left shoulder 2" x 1"
Doctor issued injury report (Ext.2/1) with an opinion that injuries were caused by sharp cutting weapon and are simple in nature.
Another doctor, Dr.Sayyed Noor Mohammad (P.W.3) examined Dhirendra Yadav and found following injuries.
(i) Abrasion on left little finger ¼ " x ¼ "
(ii) Lacerated wound of left ring finger 1/6 " X 1/6 " skin
deep.
Doctor issued injury report (Ext.2) with an opinion that all the injuries are simple in nature caused by hard and blunt substance.
Meanwhile, the Investigating Officer recorded the statements of the witnesses. However, upon his transfer, one Santosh Kumar (P.W.10) the then Sub-Inspector posted at Katkamsandi police station took over the investigation and submitted charge sheet. Upon submission of the charge sheet, cognizance of the offences as aforesaid was taken against these appellants and also one Parmeshwar Yadav, who subsequently were put on trial after commitment of the case. During trial, the prosecution examined altogether 11 witnesses. Of them, P.W.1, Dhirendra Yadav (P.W.1), son of the deceased, P.W.2, Surendra Yadav, another son of the deceased, P.W.4, Tapeshwar Yadav, brother of the deceased, P.W.6, Jitine Devi, widow of the deceased and P.W.7, Most Faguni Devi, mother of the deceased claimed themselves to be the eye witnesses. P.W.1 and P.W.2 did testify that when they came home, they found their father and the appellant Bhola Yadav 5 exchanging abuses. During which course, Bhola Yadav assaulted with lathi over the head of the deceased, as a result of which, Ram Chandra Yadav sustained injury and fell unconscious. Thereupon Bali Yadav (P.W.5) and Ram Nath applied some oil and massaged, upon which Ram Chandra Yadav regained consciousness. After some times, when their father was strolling, all the appellants came, of them Naresh Yadav was having Tangi whereas other appellants were having lathi with them. When they were taking their father to their house, P.W.1 tried to rescue him but he was assaulted by lathi and then the appellants took Ram Chandra Yadav to his house. Meanwhile, P.W.4, Tapeshwar Yadav, uncle of the informant on being informed by P.W.1 came along with Nima Yadav, Chakku Yadav, Inder Yadav and went to the house of the appellants where he saw the appellants assaulting the deceased. The appellant Naresh Yadav assaulted the deceased with Tangi whereas other appellants assaulted the deceased with lathi. P.W.4 when tried to rescue the deceased, he was also assaulted. Similar is the testimony of P.W.6, Jitine Devi, widow of the deceased and also P.W.7, Faguni Devi, mother of the deceased. P.W.5, Bali Yadav and P.W.8, Wazani Devi, another wife of the deceased have turned hostile.
After closure of the prosecution case, when the appellants were questioned under Section 313 of the Code of Criminal Procedure over the incriminating materials appearing against them, they denied.
Thereupon the trial court having placed reliance on the testimonies of the eye witnesses, particularly P.Ws. 1, 2 and 4 did find the appellants guilty for the offence punishable under Sections 302/34, 342 and 452 of the Indian Penal Code and accordingly, recorded the order of conviction and sentence which 6 is under challenge. However, the trial court acquitted the appellants of the charges under Sections 147, 148 and 307 of the Indian Penal Code.
Mr.B.M.Tripathy, learned Sr. counsel appearing for the appellants submits that the prosecution witnesses being related to each other are highly interested witnesses and thereby they have not come with the correct picture of the prosecution whereby it has been surfaced during trial that two of the appellants, Kameshwar Yadav and Bhola Yadav had received grievous injuries but the prosecution remained tightlipped, as a result of which, injury sustained by them during course of the said incidence has not been explained.
In this regard, learned counsel by referring to the evidence of the Investigating Officer (P.W.11) submits that the Investigating Officer during investigation did notice injuries on the person of the appellants and thereby he got the appellants treated in the hospital and for that, a counter case had been lodged against the deceased and the witnesses but the trial court did not take into account all these aspects of the matter in right perspective and hence, committed illegality in recording the order of conviction and sentence against the appellants.
In this regard, it was also pointed out that injuries sustained by the appellants go to indicate that the occurrence in which the deceased died occurred during altercation took place in between the parties and thereby case would never fall within the parameter of Section 299 of the Indian Penal Code, rather it would fall within one of the exceptions particularly exception fourthly of Section 300.
As against this, learned counsel appearing for the State submits that since the defence failed to produce copy of the FIR and also injury report, the trial court rightly rejected the 7 contention that the prosecution was obliged to explain the injuries appearing on the person of the deceased which reasoning assigned by the court appears to be sound and thereby the trial court can certainly be said to have not committed any illegality in recording the order of conviction and sentence against the appellants.
Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the case of the prosecution as has been testified by the witnesses P.Ws.1, 2,4,6 and 7 is that on the day of occurrence at 8 p.m. while the deceased Ram Chandra Yadav was in front of his house, the appellant Bhola Yadav came, upon which there was exchange of abuses during which, Bhola Yadav did assault on the head of Ram Chandra Yadav by lathi causing injury, who fell unconscious. However, when he regained consciousness, he started strolling over the varanda during which the appellants came over there. The appellant Naresh Yadav was armed with Tangi whereas other appellants were having lathi. They assaulted the deceased and started taking him to their house. P.W.1 tried to rescue his father but he was also assaulted. After being assaulted, P.W.1 went to call his uncle, Tapeshwar Yadav (P.W.4), who along with other persons came. By that time, the appellants had taken Ram Chandra Yadav to their house where he was being assaulted. There P.W.4 tried to rescue his brother but he was assaulted causing injury which injuries on the person of P.W.1 and P.W.4 have been found by Dr.S.M.Mohammad (P.W.3) and Dr.Marshal Aind (P.W.9).
Under the circumstances, the eye witnesses particularly P.Ws.1 and 4 never appears to be untrustworthy. Going further in the matter, it appears from the testimonies that the appellants after assaulting the deceased inside the 8 house brought him outside of the house and kept under Machan (wooden structure meant for piling of heap of the crops). On the person of the deceased, no serious external injuries have been found rather only abrasion have been found and that apart, ribs of both the sides have been found fractured.
Since the testimonies of the witnesses regarding assault being made by lathi by the appellants are not inconsonance with the medical evidence, submission has been advanced that the eye witnesses had no occasion to see the occurrence but still, they claimed to be the eye witnesses.
It is true that the witnesses have testified that the deceased was assaulted by lathi and even by Tangi by one of the appellants but no corresponding injuries seem to be there. The witnesses may have exaggerated the things but the case of the prosecution as has been projected by the witnesses is that the deceased was taken from his house to the house of the appellants where on account of the act of the appellants, ribs got fractured. Since the witnesses did not see what happened inside the house, they were unable to give correct picture but the fact remains that the witnesses are consistent on the point that the deceased was taken by the appellants to their house where obviously the deceased was assaulted, as a result of which, ribs got fracture and thereupon the appellants dumped the deceased under the machan but the question does arise as to whether the occurrence took place in the manner as stated above, or it happened in some different manner? Certain facts were brought to the knowledge of this court which does indicate that the occurrence took place in other manner than the manner in which the case of the prosecution has been projected. As we have already indicated that the Investigating Officer (P.W.11) during investigation of the case had noticed injuries on the person of 9 the appellants, for which even a counter case was lodged. Charge sheet of the counter case and even the order framing charge have been brought on record which have been proved as Exts.A and B. From perusal of those documents, it appears that on 30.5.2001 at about 8 p.m. some of the witnesses, Tapeshwar Yadav (P.W.4), Surendra Yadav (P.W.2) and also other person Dhirendra Yadav (P.W.1) were alleged to have assaulted the appellants and others, as a result of which, some of the appellants sustained grievous injuries and therefore, charge has been framed under Section 307 of the Indian Penal Code against some of the witnesses and others.
Further we do find that P.W.9 in course of investigation did find injuries on the person of the appellants. Thus, those facts are sufficient to indicate that the occurrence must have taken place in other manner than the manner as has been projected by the prosecution and further the occurrence in all probability must have taken place in course of altercation in between the appellants and thereby both sides suffered injuries. In such event, case would certainly fall within one of the exceptions, exception fourthly of Section 300 of the Indian Penal Code. Further we do find that apart from ribs being found broken, no other injury was there on the person of the decease which sufficiently indicate that even Naresh Yadav who has been alleged to have been holding Tangi had not inflicted injury by Tangi. Again we do find that the appellants never acted in cruel or unusual manner as according to the witnesses, they after assaulting the deceased brought him outside and dumped under the machan.
Under the circumstances, we do find that the trial court was not justified in recording the order of conviction under Section 1 302 of the Indian Penal Code and hence, the order of conviction is modified to the extent that the appellants instead of being convicted under Section 302 are convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and are sentenced to the period already undergone. However, order relating to sentence of fine shall remain intact.
So far the conviction and sentence recorded against all the appellants for other offences are concerned, it shall remain intact.
Since the appellants Bhola Yadav and Naresh Yadav, who have served sentence for 13 years are directed to be released forthwith, if not wanted in any other case, subject to payment of fine amount as has been ordered by the trial court.
So far the appellant Kameshwar Yadav, who has served sentence for more than 7 years is on bail would be discharged from the liability of the bail bond on payment of fine amount.
Thus, this appeal is allowed in part with the modification in the order of conviction and sentence as indicated above.
(R.R.Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi, The 15th September, 2015, NAFR/N.Dev