Jharkhand High Court
Anup Kumhar & Ors vs State Of Jharkhand on 5 January, 2010
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Revision No. 113 of 2009
1. Anup Kumhar
2. Bharat Kumhar
3. Rupa Devi-- -- -- -- -- -- -- ---Petitioner(s)
Versus
1. The State of Jharkhand
2. Indrajit Kumhar-- -- -- -- -- -- -- --Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner(s) : Mr. B.M. Tripathy, Sr. Advocate
M/s. Nutan Sharma & N.K. Jaiswal, Advocates
For the State : A.P.P.
For the Opp. Party No.2 : Mr. Mahesh Tewari, Advocate
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Reserved on: 06-11-2009 Pronounced on: 05- 01-2010
D.K. Sinha, J. Petitioners have preferred this criminal revision for setting aside
the order impugned dated 13.1.2009 passed by the learned Additional
Sessions Judge, F.T.C.-III, Dhanbad in S.T. No.476 of 2008 arising out of
Baghmara (Barora) P.S. Case No.60 of 2008 for the alleged offence under
Sections 323/341/307/302/34 of the Indian Penal Code by which the
petition filed under Section 227 of the Code of Criminal Procedure for
their discharge was rejected.
2. Prosecution story in short was that the informant Dhananjay
Kumhar (since deceased) while was digging earth near his house for
connecting water pipeline on 4.3.2008, it was opposed by the petitioners,
who abused and there held altercation. Pursuant to that, it was alleged
that the petitioner Anup Kumhar, who was holding iron rod in his hand,
inflicted blow causing injuries on the head of the informant. When his son
came to rescue his father informant, he was also assaulted and thereby
sustained injuries. Informant then presented a written report before the
police station on the same day on 4.3.2008 whereupon the police
registered a case for the alleged offence under Sections
341/323/307/504/34 of the Indian Penal Code against the petitioners.
Informant- Dhananjay Kumhar was referred to the Regional Hospital at Baghmara for his treatment and the doctor found lacerated injury measuring 2" x ½" x ¼" on his left parietal region of scalp with a small abrasion over his left shoulder. The said injuries, in the opinion of the Doctor, were caused by hard and blunt object, inflicted within six hours of his examination. The nature of the injuries was kept reserved awaiting the X-ray report of the scalp of the injured. When the injuries of the informant 2 Dhananjay Kumhar could not be treated at Baghmara hospital, he was then referred to the Central Hospital, Saraidhella on 12.3.2008 where he died on 13.3.2008 in course of treatment and only thereafter the offence under Section 302 of the Indian Penal Code was added in the F.I.R. The learned Sr. Counsel explained that in the post-mortem report of the Dhananjay Kumhar, the doctor found stitched wound on the body of the deceased towards left occipital region and abrasion on the left shoulder. On dissection, 50 cc deep brown coloured liquid was found in the stomach which was taken out and preserved for sending to Forensic Science Laboratory to ascertain the actual cause of death along with the other visceras. In the meantime, cognizance of the offence was taken under Sections 341/323/307/504/34 of the Indian Penal Code after receiving the charge sheet. The case was committed and thereafter the petitioners filed their petition under Section 227 of the Code of Criminal Procedure for their discharge relying upon the report of the Forensic Science Laboratory dated 13.11.2008 wherein it was stated that the viscera of the Dhananjay Kumhar contained endosulfan which was chloro-organo pesticide, commonly used in agriculture for killing pests and it was poisonous, but their petition was rejected.
3. The learned Sr. Counsel Mr. Tripathy submitted that the occurrence did not take place in the manner presented by the informant of the instant case Dhananjay Kumhar, rather the actual version was that when the petitioner No.3 Rupa Devi along with her elder daughter-in-law was busy on the alleged date of occurrence on 4.3.2008 in making preparation for the marriage of her son Anup Kumhar, she heard alarm from the outside and when she came out of her house, she noticed that Dhananjay Kumhar, his two sons along with other female members were digging the ground in front of her door and on query, Dhananjay Kumhar replied that he had to lay pipelines for water supply to which Rupa Devi objected and asked him not to do so as the marriage of her son was going to be solemnized on 13th March and her such reply resulted into altercation and exchange of filthy language. Thereafter Dhananjay Kumhar and other members of his family brought sticks and swords from their house and upon entering and trespassing into the courtyard of Rupa Devi, they assaulted her daughter- in-law and the informant Rupa Devi as well. In the meantime, her son Bharat Kumhar came and tried to pacify the situation but of no avail. On the written report of the Rupa Devi (petitioner No.3), police registered a case against the said Dhananjay Kumhar and five others for the alleged 3 offence under Sections 341/323/354/448/504/34 of the Indian Penal Code giving rise to Baghmara (Barora) P.S. Case No.59 of 2008 first point in time before institution of the instant case.
4. Learned Sr. Counsel pointed out that Dhananjay Kumhar got himself admitted on 4.3.2008 with a small injury on his head and one abrasion on his left shoulder. As the injuries were found simple, he was discharged from the said hospital on 7.3.2008. On 12.3.2008, he was brought to the Central Hospital, Saraidhella where he died on 13.3.2008. The Sr. Counsel further pointed out that as the pesticide was found in the stomach of the deceased in the report of the Forensic Science Laboratory, his cause of death could be either culpable homicide by administering poison or suicide committed by him and therefore, the injuries sustained by him on his head could not be the cause of his death. He was discharged from the hospital on 7.3.2008 after he was found fit after his injury was bandaged and it was not the case that petitioners had administered poison at any point of time or that the injuries found on the head of the victim, in the opinion of the Doctor, were sufficient to cause death. It would be relevant to mention that Dhananjay Kumhar was hale and hearty, physically capable and he had surrendered on 12.3.2008 in the Court of Chief Judicial Magistrate, Dhanbad in connection with Baghmara (Barora) P.S. Case No.59 of 2008 instituted at the instance of the Rupa Devi (petitioner No.3) as would be evident from the order of the Chief Judicial Magistrate dated 12.3.2008 (Annexure-7). But the learned Additional Sessions Judge, F.T.C.-III, Dhanbad, ignoring this material fact available on the record, rejected the petition filed on behalf of the petitioners under Section 227 of the Code of Criminal Procedure on erroneous consideration that all the witnesses in the case diary had supported the factum of the incidence as alleged in the F.I.R. and that post mortem report suggested that the victim had sustained head injuries, materials sufficient for framing of charge against the accused-petitioners for the alleged offence under Sections 323/341/307/302/34 of the Indian Penal Code.
5. Finally, the learned Sr. Counsel submitted that the order impugned recorded by the learned Additional Sessions Judge was based upon erroneous consideration as the Court failed to appreciate that there was no material on the record to suggest that the petitioners had administered poison as a result of which he died. Even if it could be admitted for the argument sake that Dhananjay Kumhar had sustained injuries on his 4 head, there was no material in the case diary to suggest that the head injury sustained by him was sufficient to cause his death.
6. On the other hand, the learned counsel Mr. Mahesh Tewari appearing for the opposite party No.2 strongly opposed the contention advanced by Mr. Tripathy on the ground that the injuries sustained by the victim Dhananjay Kumhar at the hands of the petitioners could not be denied as the factum of occurrence was corroborated by several witnesses as has been referred in the order impugned recorded by the learned Additional Sessions Judge. It was not the case of the prosecution that the accused persons had administered poison, rather the petitioner No.1 Anup Kumhar inflicted blow with iron rod on his head in furtherance of common intention with the co-accused causing injuries having got bearing in the injury report as well as in the post mortem report of the deceased. However, I find that Mr. Tewari, the learned counsel is silent as to the finding of pesticide in the stomach of the deceased in the viscera report furnished by the Forensic Science Laboratory which gives altogether a different circumstances as to the cause of death of Dhananjay Kumhar.
7. Having regard to the facts and circumstances, arguments advanced on behalf of the parties, I come to the conclusion that no offence in the given situation is made out under Section 302 or 307 of the Indian Penal Code against any of the petitioners and at best, it could be under Section 325 of the Indian Penal Code as the materials prima facie suggest without much more discussion and without prejudice to the merit of the case. As regards complicity of the petitioner Rupa Devi in the alleged offence is concerned, her earlier version before the police suggests that it was Dhananjay Kumhar who was aggressor and therefore, prima facie charge under Sections 325/34 of the Indian Penal Code cannot be, in my view, directed against her and I find material sufficient to consider her case for discharge and accordingly she is discharged in Baghmara (Barora) P.S. Case No.60 of 2008. For the reasons stated above, I find prima facie materials to proceed against other two petitioners for the charge under Sections 325/34 of the Indian Penal Code and accordingly they be proceeded after their record be transferred to the Chief Judicial Magistrate, Dhanbad under Section 228(1)(a) of the Code of Criminal Procedure. Accordingly, this petition is disposed of by allowing it in part in the manner indicated above.
(D.K. Sinha, J.) S.B. /FAR