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2007 DIGILAW 102 (JHR)

Ramlal Sardar v. State Of Bihar (Now Jharkhand)

2007-02-21

AMARESHWAR SAHAY, D.N.PRASAD, DHANANJAY PRASAD SINGH

body2007
JUDGMENT 1. All the three appellants have preferred this appeal against the judgment and order dated 6.6.1995 passed by Additional Sessions Judge, Saraikela in Sessions Trial No. 139 of 1988 whereby and whereunder all the three appellants have been convicted under Section 302/34 of the Indian Penal Code in addition to that appellant No. 1 has also been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code and other two appellants have been sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code. No separate sentence has been passed against appellant Ramlal Sardar under Section 302/34 of the Indian Penal Code. 2. Brief facts leading to this appeal are that in the after noon of 23.10.1987 the deceased Bibhisan Sardar had entered in exchange of hot words with appellant Ramlal Sardar in the front of house of Ghasi Ram situated in Mauza Chotadhawla Dih P.S. Seraikella. Further stated the deceased was caught hold by other co-appellants Ramdas and Tura Sardar while Ramlal assaulted him on his forehead with stone. The deceased fell down and the appellants fled away. The occurrence was seen by PW 3 Budhrai Sardar and PW 4 Bhadro Sardar both brothers of the deceased. PW 3 informed his father the informant Ramjit Sardar regarding the incident who arrived at the place of occurrence to find his son already dead. 3. The police was informed which arrived at the place of occurrence next day at 8 a.m. and recorded the statement of PW 2 to register a case under Section 302/34 of the Indian Penal Code against all the three appellants. The police further prepared inquest report and sent the dead body for post-mortem examination. Finally charge-sheet was submitted against the appellants for which they were tried and found and held guilty by trial Court. The appellants have been sentenced to serve R.I. for life. 4. The present appeal has been preferred on the grounds that the appellants have not intended to cause death of deceased. It is also submitted by the learned Counsel for the appellants that the deceased might have fallen on stone in drunken stage resulting in his death. According to learned Counsel for the appellant assault made during sudden fit of passion should not have been accepted as intention to cause death. It is also submitted by the learned Counsel for the appellants that the deceased might have fallen on stone in drunken stage resulting in his death. According to learned Counsel for the appellant assault made during sudden fit of passion should not have been accepted as intention to cause death. It has been also pointed out that the eye- witness have not alleged repeated blows. As such, the conviction under Section 302/34 of the Indian Penal Code is not maintainable. 5. We have anxiously considered the points raised by the learned Counsel for the appellants along with the materials on record. The prosecution in the present case has examined altogether eight witnesses out of which PW 1 is formal. PW 7 has been tendered while PWs 5 and 6 are hearsay witnesses of the occurrence PW 2 is informant though he is not an eye-witness of the occurrence PWs 3 and 4 both related and eye-witnesses of the occurrence have not asserted that any blow was repeated on the deceased. The doctor PW 8 has also found only one injury on the head resulting in his death. The I.O. has not been examined in this case. From perusal of the evidence of PWs 2, 3 and 4, we find that the witnesses are truthful and during cross-examination no suggestion has been made regarding any false implication. However it has clearly come on record that the occurrence took place while hot exchange of words was going on between appellant No. 1 and the deceased. 6. In view of the facts available on record, we are of the view that the death of the Bibhisan Sardar resulted due to single injury caused by Ramlal Sardar. We have also gone through the impugned judgment. The learned trial Court mentions in para 12 of the judgment that fight started between the deceased and the appellant Ramlal resulting in the assault and death. In view of the facts available on the records, we are of the view that the conviction of appellant Ramlal Sardar under Section 302 of the Indian Penal Code and conviction of all the appellants under Section 302/34 of the Indian Penal Code is not maintainable. However since death has resulted due to single assault, the appellants are found and held guilty under Section 304, Part II of the Indian Penal Code. However since death has resulted due to single assault, the appellants are found and held guilty under Section 304, Part II of the Indian Penal Code. The appellant Ramlal Sardar is found and held guilty under Section 304, Part II of the Indian Penal Code and other two appellants are accordingly, found and held guilty under Section 304, Part II/34 of the Indian Penal Code. 7. Accordingly the conviction of appellant Ramlal Sardar under Section 302 of the Indian Penal Code and conviction of other two appellants under Section 302/34 of the Indian Penal Code is set aside. The appellant Ramlal Sardar is convicted under Section 304, Part II of the Indian Penal Code and other two appellants be convicted under Section 304 Part II/34 of the Indian Penal Code. From the records it is apparent that the appellant Ramlal Sardar is in custody from October 1987 and other two appellants have been released on bail in August 1990. Accordingly appellant No. 1 is sentenced to RI for seven years and appellants No. 2 and 3 are separately sentenced to the period already undergone by them. The appellant No. 1 having served the sentence be released forthwith if not required in any other case. 8. In the result, this Cr. Appeal is dismissed with modification in conviction and sentence as indication above.