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2004 DIGILAW 62 (JHR)

Chandulal Hembram v. State of Bihar

2004-01-13

HARI SHANKAR PRASAD

body2004
Judgment Hari Shankar Prasad, J.- This appeal is directed against the judgment of conviction and order of sentence dated 30.4.1997 passed in Sessions Trial No. 250/95, whereby and whereunder the learned Sessions Judge, Deoghar held the appellant guilty under Section 304, Part-I IPC and convicted and sentenced him to undergo RI for seven years and to pay a fine of Rs. 2000/- and in default of payment to further undergo RI for one year. 2. Prosecution case in brief is that appellant and deceased Churka Hembrom were full brothers. They had thatched houses at the same places contiguous to each other and on 19.8.95 at about 2 PM both of them quarrelled with each other for hens and in course of quarrel appellant assaulted Churka Hembrom with lathi on his head, as a result of which Churka Hembrom fell down and became unconscious. His wife was, at that time, sowing paddy in the field and her daughter Lurki Hembrom (PW 1), who was in the house, saw the quarrei and immediately rushed to her mother, who was in the field, and informed her and wife of Churka Hembrom came to the house and saw the occurrence and raised alarm, whereupon co-villagers assembled and appellant fled away. Churka Hembrom was not taken to hospital but he was treated in the house and during course of treatment in the house he succumbed to his injuries. A case to that effect was lodged by Belful Murmu, whereupon I.O. after investigation, submitted chargesheet under Section 302 IPC. Cognizance in the case was taken and case was committed to the court of sessions. The learned sessions Judge, after recording evidence both oral and documentary of the witnesses, held the appellant guilty and convicted and sentenced him as aforesaid. 3. Prosecution has examined 8 witnesses. PW 1 is Lurki Hembrom, who is daughter of deceased Churka Hembrom and the informant Belful Murmu. She has been declared hostile as she has not supported the prosecution case. PW 2 is a witness to the seizure list. He has also riot supported the recovery but has stated that on a piece of paper he has put his signature (Ext.1). 4. PW 3 is the informant and wife of deceased Churka Hambrom. She has been declared hostile as she has not supported the prosecution case. PW 2 is a witness to the seizure list. He has also riot supported the recovery but has stated that on a piece of paper he has put his signature (Ext.1). 4. PW 3 is the informant and wife of deceased Churka Hambrom. She is not an eye witness but she deposed that there was some altercation in between her husband and appellant, whereupon appellant assaulted her husband with lathi on his head and blood started oozing out and Churka Hembrom fell down. She admits that when assault took place on her husband, she ran from the field and appellant also fled away. Appellant again came and again assaulted her husband. She admits that she was cutting grass at the time of altercation. On alarm she came there and for the first time she did not see the assault and when she came she saw her husband fallen on the ground and blood was oozing out from his head. 5. PW 4 is Bahamani Murmu. She is wife of Budhan Hembrom. She claims to be an eye witness. She said that on alarm she came there and saw that appellant was assaulting Churka Hembrom with lathi and she snatched the Lathi from the hands of appellant. 6. PW 5 has been tendered for cross examination. PW 6 is a witness of seizure list and he says that a Lathi was seized in his presence and he had put his signature (Ext. 1/1). 7. PW 7 is the I.O. of the case and he prepared the relevant papers and visited the place of occurrence. 8. PW 8 is Dr. Jogendra Narain Singh, who conducted the post mortem examination on the dead body of Churka Hembrom and found the following injuries. "(i) One linear swelling over left parietal bone 4" x 1". (ii) One linear swelling over right parietal bone 5" x 1 1/2". According to doctor, cause of death occurred within 36 hours from the date of post mortem examination and ante mortem injuries were grievous in nature which cannot be caused by fall. 9. On this piece of evidence, the learned sessions Judge held the appellant guilty under Section 304 Part I IPC, although charges were framed under Section 302 IPC. 10. According to doctor, cause of death occurred within 36 hours from the date of post mortem examination and ante mortem injuries were grievous in nature which cannot be caused by fall. 9. On this piece of evidence, the learned sessions Judge held the appellant guilty under Section 304 Part I IPC, although charges were framed under Section 302 IPC. 10. While assailing the judgment, learned counsel for the appellant submitted that out of 8 witnesses only one witness i.e. PW 4 appears to be an eye witness, otherwise there is not a single independent witness has been examined in this case. PW 4 is an interested witness because she happens to be the wife of younger brother of the appellant. It is also pointed out that it is neither a case under Section 302 IPC nor under Section 304 Part I IPC because appellant is said to have given only one Lathi blow and evidence of PWs 3 and 4 is that appellant again came and assaulted the deceased, which has been disbelieved by the trial court. Further PW 1, who is said to have rushed to the field after seeing the assault on her father by appellant, has turned hostile. PW 4 says that she has seen the occurrence but her evidence cannot be believed because of her being interested one in the case. It is also pointed out that sentence is for seven years RI but appellant has already remained in jail for about two years and case is of the year 1995 and appellant has faced the rigors of trial for 8 years. 11. It appears that there is only one eye witness, who is PW 4 and she claims to have come to the place of occurrence on Halla and saw that appellant had inflicted Lathi blow on the head of the deceased Churka Hembrom. Churka Hembrom did not get proper treatment at his house and that might be cause for his succumbing to his injuries. The appellant has already remained in custody for about two years and in my opinion, period already undergone by him in jail will meet the ends of justice. 12. In the result, this appeal is dismissed with modification in the period of sentence to the period already undergone by the appellant in jail.