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2003 DIGILAW 965 (JHR)

Guna Kora v. State of Jharkhand

2003-08-07

D.N.PRASAD, HARI SHANKAR PRASAD

body2003
JUDGMENT Deoki Nandan Prasad & Hari Shankar Prasad, JJ.- This appeal is directed against the judgment of conviction dated 23.1 .2003 and order of sentence dated 24.1.2003 passed by the Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 206 of 1992, whereby and whereunder, the learned Sessions Judge convicted the appellant under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The short facts of the prosecution case as stated that a written report submitted to Goelkera Police by Gomia Lugun (deceased) stating therein that on 16.11.1990 at about 9. p.m., the appellant Guna Kora called the deceased outside his house and asked to perform Puja for him and handed over Sindur. The deceased sat on the ground for performing Puja. Thereafter the appellant (Guna Kora) gave Garasa blow from behind, as a result of which, he fell down and became unconscious. Thereafter Gomia Lugun was taken to the hospital for treatment and after seven days of the occurrence, he succumbed to the injury. 3. On the basis of the statement of the deceased (dying declaration), a first information report was lodged under sections 448 and 324 of the Indian Penal Code against the appellant. The police investigated into the case and after investigation submitted charge sheet. The witnesses were examined before the Trial court after framing charge and thereafter after hearing both sides, the learned Sessions Judge convicted and sentenced the appellant in the manner as stated above. 4. Obviously there is an allegation against the appellant for causing Farsa blow from back and this fact has also been corroborated by the Injury Report (Ext. 5) as the deceased was firstly injured and the Doctor found the following injuries on his person:- "(1) Injury on left shoulder 3" x 1 1/2" I"; (2) Injury on right shoulder 4" x 1 1/2" x 1"; (3) Spinal injury caused Traumatic paraplegia" . Injury Nos. 1 and 2 are simple in nature whereas injury no. 3 is found to be grievous caused by hard and sharp edged weapon. Since the informant Gomia Lugun died later on and, as such, the post mortem was also held and the doctor who held post mortem found the following ante mortem injury:- "Stitched sharp cutting wound on left side of back-6" 1/2" x deep to chest cavity. 3 is found to be grievous caused by hard and sharp edged weapon. Since the informant Gomia Lugun died later on and, as such, the post mortem was also held and the doctor who held post mortem found the following ante mortem injury:- "Stitched sharp cutting wound on left side of back-6" 1/2" x deep to chest cavity. Stitched sharp cutting wound on right side of back-5" x 1/2" x deep to chest cavity". However, it was found that the chest cavity was full of blood. Nature of injury found to be grievous and, according to the opinion of the Doctor, the cause of death was due to shock and haemorrhage due to the above injuries. 5. P.W. 2 stated that he being the Mukhiya of the village since 1978 to 1996-97 and he was informed that Gomia Lugan sustained injury and thereafter he rushed to the spot and found him in the injured condition. According to him, the deceased narrated the incident and stated that it was the appellant who assaulted him. The informant/deceased recorded his statement and put his L.T.I. over the written report. P.W. 2 admitted in his cross-examination that the deceased Gomia Lugan did not say anything as to what was the motive behind assault on the deceased by the appellant when there was no dispute/quarrel between them from before. 6. P.W. 3 is the son of the deceased and he stated that he was not present in the house at the relevant time and when he came back, he found his father in the injured condition. His father was taken to the hospital where he died. Admittedly he had not seen the occurrence. 7. P.W. 4 is the wife of the deceased. She claimed to be an eyewitness of the occurrence and she stated clearly that the appellant assaulted Gomia Lugan with tarsa from back, as a result of which, her husband sustained injuries and fell down and thereafter the appellant fled away. She also claimed that she had narrated the incident to the villagers. Her husband was admitted to the hospital but he died in course of treatment. 8. P.W. 5 claimed to have gone to the house of the deceased and found Gomia Lugan in the injured condition. He also stated that Gomia Lugan had stated before him that it was Guna Kora (appellant) who assaulted him by tarsa. Her husband was admitted to the hospital but he died in course of treatment. 8. P.W. 5 claimed to have gone to the house of the deceased and found Gomia Lugan in the injured condition. He also stated that Gomia Lugan had stated before him that it was Guna Kora (appellant) who assaulted him by tarsa. Though he has been declared hostile by the prosecution but he claimed to have seen the deceased in an injured condition. P.W. 6 is a formal witness. 9. No any witness has been examined and as such the appellant was examined under section 313 of the Code of Criminal Procedure and he denied the allegation. 10. From perusal of the evidence collected during trial, it is evident that the appellant assaulted the deceased with tarsa from back. The Doctor who treated the deceased at the first instance found two injuries on the shoulder being simple in nature and a single injury was found to be grievous in nature. The witnesses are also consistent to state about the fact that the injured/deceased found to be in the injured condition having injuries caused by tarsa and P.W. 4, being the wife of the deceased, can be said to be natural and only possible witness at the relevant time in the facts and circumstances of the instant case and she is an eye witness of the occurrence and is very much consistent about stating that this appellant assaulted her husband from back with tarsa, which fact has fully been corroborated by the oral as well as documentary/medical evidence. 11. Mr. Kripa Shankar Nanda, learned counsel appearing on behalf of the appellant as Amicus Curiae submitted that the Doctor and the Investigation Officer have not been examined in the case and, as such, the case of the defence has highly been prejudiced as the examination of the Investigating Officer was essential to get the contradictory evidence confronted and that opportunity could not be availed by the prosecution. 12. The submission as advanced at the Bar has got no consequence in view of the fact that the written report, on the basis of which, a first information report was lodged is itself a dying declaration, which has fully been corroborated by other witnesses including an eyewitness, wife of the deceased, who was present at the spot at the relevant time. The Doctor's injury report as well as the post mortem report also go to establish unerringly that the appellant caused assault with tarsa to the deceased. It is true that the assault was made from the back and not on the vital part of the body as well as the deceased Gomia Lugun died in the Hospital after seven days of the occurrence in course of treatment. 13. Thus we are of the view that there was no intention on the part of the appellant for causing death instantaneously nor the assault took place in brutal manner. Had there been intention to cause death, he would have given blow on the head or the chest, the vital part of body. Thus we are of considered opinion that the offence under section 302 of the Indian Penal Code has not been established. 14. Having regard to the above facts and circumstances, we acquit the appellant for the offence under section 302 of the Indian Penal Code but he is convicted under section 304 Part II of the Indian Penal Code and, accordingly, he is sentenced to undergo rigorous imprisonment for ten years under section 304 Part II of the Indian Penal Code. 15. In the result, the appeal is dismissed with the modification in the conviction and sentence aforesaid. .