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2003 DIGILAW 958 (JHR)

Kaleshwar Ahir v. State of Bihar (now Jharkhand)

2003-08-06

DEOKI NANDAN PRASAD, HARI SHANKAR PRASAD

body2003
JUDGMENT By the Court.- This appeal is directed against the judgment of conviction and order of sentence dated 5th July, 1996 and 6th July, 1996 respectively passed by the learned Additional Sessions Judge, Gumla in Sessions Trial No. 37 of 1995 whereby and whereunder the learned Additional Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The prosecution case in brief is that one Mangri Devi, wife of the deceased gave fardbeyan before the police alleging therein that on 26.8.1994 in the evening at about 4.00 p.m. the appellant Kaleshwar Ahir came to her house and asked her husband Sal Klshun Nagesia (deceased) to come to his house for doing treatment (Jharphuk) because he was not well. Her husband went to the house of the appellant at 7.00 p.m. in the evening and at about 8.00 p.m. on the same day, Gangadhar Pradhan(P.W. 4) came to her house and told her that appellant Kaleshwar Ahir committed murder of her husband by assaulting with tangi and thereafter she went to the house of the accused with her brother-in-law Chotku Nagesia and Lorge Nagesia and they saw the dead body of her husband lying there, which was lying on the southern side baramdah of the house of the accused and blood was oozing out from the body, a tangi was also lying near by. On enquiry, the sarpanch of the village Dumneshwar Singh, Gangadhar Pradhan and other villagers told her that Kaleshwar Ahir, the appellant assaulted her husband with tangi. On the basis of fardbeyan, the First Information Report was lodged against the appellant for the offence under Section 302 of the Indian Penal Code. The police investigated into the case and submitted charge-sheet against this appellant. Witnesses were examined in the trial Court after framing charges against the appellant and after hearing both the sides, the Court below passed the judgment convicting the appellant and sentenced him as in the manner as stated above. 3. The police investigated into the case and submitted charge-sheet against this appellant. Witnesses were examined in the trial Court after framing charges against the appellant and after hearing both the sides, the Court below passed the judgment convicting the appellant and sentenced him as in the manner as stated above. 3. The learned counsel appearing on behalf of the appellant, at the very outset while assailing the impugned judgment, submitted that the trial Court committed an error in convicting the appellant under Section 302 of the Indian Penal Code when there is no evidence to show about the intention on the part of the appellant , as well as there is no eye-witness of the occurrence. It is further argued that except the circumstantial evidence, there is nothing against the appellant. It is true that blood stained tangi was recovered and also dead body was recovered from the house of the appellant. But it is also the admitted position that the appellant was not present there nor he was seen. Had any villagers either seen the appellant assaulting the deceased or fleeing away from the place of occurrence at the relevant time then matter would have been otherwise. 4. On the other hand, learned APP contended before us that the appellant made confession before the police as well as the PWs confessing his guilt and admitted that fact that he assaulted the deceased with tangi and this fact has also been corroborated by the witnesses as well as by the doctor who held post-mortem on the dead body of the deceased. 5. Before appreciating the contention of both sides, it would be evident to deal with the evidence collected during trial. PW 1 is the wife of the deceased and admittedly, she is not the eye-witness to the occurrence as she came to know from PW 4 Gangadhar Pradhan that her husband has been done to death. PW 2 is the sarpanch, who is the witness on the seizure list of blood stained earth and tangi and he claimed to have seen the dead body in the house of the appellant and the tangi was also found there. PW 3 has been tendered by the prosecution. PW 4 claimed to have reported the matter to the informant. PW 2 is the sarpanch, who is the witness on the seizure list of blood stained earth and tangi and he claimed to have seen the dead body in the house of the appellant and the tangi was also found there. PW 3 has been tendered by the prosecution. PW 4 claimed to have reported the matter to the informant. He stated that Bal Kishun was going to the house of Kaleshwar Ahir, the appellant for treatment (Jharphuk) and thereafter this witness PW 4 also accompanied him and went to the house of the appellant and thereafter he came back to his own house for taking meal. Thereafter he heard hulla and then he rushed to the spot and found the dead body of Sal Kishun Nagesia there. There was also one tangi lying near the dead body of the deceased and it was blood stained. Thereafter he reported the matter to the family members including the informant of the deceased, he stated in his cross-examination clearly that after taking Bal Kishun to the house of this appellant, he went to his house for taking meal and thereafter he came to the house of the appellant, there he heard sound of hulla after one or one and half hour. PW 5 claimed to had gone with the informant at the place of occurrence and saw the dead body of Bal Kishun NagHsia. He is also hearsay witness. PW 6 also went to the place of occurrence and found the dead body of the deceased lying in the house of the appellant which was in pool of blood as well as there was blood stained tangi. PW 7 stated clearly that Kaleshwar Ahir was caught later on and he confessed his guilt before the villagers. According to him, at first instance, the mother of this appellant also stated that Kaleshwar Ahir committed murder of the deceased. Thereafter he along with Kaleshwar went to the police station and handed over the appellant. It is true that he admitted that, actually, he had not told to the police that first of all, mother of this appellant narrated that Kaleshwar had killed the deceased. PW 8 is also hearsay witness. According to him, the appellant made confession before the villagers and the police officials. 6. It is true that he admitted that, actually, he had not told to the police that first of all, mother of this appellant narrated that Kaleshwar had killed the deceased. PW 8 is also hearsay witness. According to him, the appellant made confession before the villagers and the police officials. 6. PW 9 is the doctor who held postmortem on the dead body of Sal Kishun Nagesia and found the following antemortem injuries:- 1. Incised wound on right frontal region, size 3" x 1/2" x 1/2" deep. 2. Incised wound over left cheek 1/2" x 1/2" x 2" deep. 3. Incised wound over right down lip 1" x 1/2" 1/2". 4. Bruise over left cheek and chin 4" x 3" with multiple communitted fracture of the body of left mandible and maxilla and facture of body of right mandible with laceration bruseal and mukasa and loss of incised and canine tooth. The doctor clearly stated that injury Nos. 1, 2 and 3 caused by sharp weapon are simple in nature. Injury NO.4 caused by hard and blunt substance may be tangi and is grievous in nature and sufficient to cause death in normal course. At the same time, he admitted that after sustaining injuries, a man may survive for sometime and he will not die instantaneously. According to him, if no first aid is given, he may survive for twelve hours. PW 10 is the investigating officer, who claimed to have recorded the fardbeyan and lodged the first information report accordingly. He visited the place of occurrence, according to him, the dead body of the deceased was found in the house of the appellant, which is built of mud. He recorded evidence of witness and thereafter submitted charge sheet. Other witnesses are formal witnesses. 7. Obviously, there is allegation specific against the appellant that he assaulted the deceased with tangi, PW 4 is very much clear in his evidence that he had accompanied with the deceased to the house of the appellant and after leaving him there, he returned to his house for taking meal and after sometime, he heard some hufla and thereafter he rushed to the spot and found the dead body of Bal Kishun Nagesia in the house of the appellant. Tangi was also found there nearby which was blood stained. Tangi was also found there nearby which was blood stained. The doctor who held postmortem on the dead body of the deceased also found injuries, though injury No.4 is grievous in nature, other injuries are simple and superficial. The doctor further admitted that, had there been Timt aid given to the deceased, he would have survived, as well as such injuries caused, was not sufficient to show that he will die instantaneously. Thus, it is apparent and obvious that there was no intention on the part of the appellant for killing the deceased. Had there been such intention, tt1G appellant would have repeatedly gave tangi blow inflicting incised wound on the vital parts of the body including head. But the injury No.4 is found to be caused by hard blunt substance. We have already stated that there is no eye-witness to the occurrence and so injuries as caused, do not indicate about the intention on the part of the appellant for killing the deceased instantaneously as well as there was no motive found in the evidence collected. In this view of the matter, the submissions as made above by the learned defence counsel appear to be convicing and can be taken into account. Thus, we are of the view that the prosecution has been able to prove its case under Section 304 (II) of the Indian Penal Code beyond all reasonable doubt. In the result, the order of conviction and sentence under Section 302 of the Indian Penal Code is set aside. But at the same time, we convict this appellant for the offence under Section 304, Part II of the Indian Penal Code. 8. So far as the sentence is concerned, it is apparent that this appellant has been all along in jail custody since 27.8.1994 and as such, we are of the view that sufficient period has already under gone in the jail custody and it will meet the ends of justice in the facts and circumstances of the case. We sentence him to undergo rigorous imprisonment for the period already undergone in jail custody for the offence under Section 304, Part II. Since the appellant is already in custody, he is directed to be set at liberty forthwith, if not wanted in any other case. 9. With this modification as made above, this appeal is dismissed.