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2007 DIGILAW 320 (JHR)

Raghu Sardar v. State Of Bihar (Now Jharkhand)

2007-04-18

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2007
JUDGMENT 1. This instant appeal has been filed against the impugned judgment of conviction and sentence passed on 1st February, 1995 by Sri A.P. Ram, the Additional Sessions Judge, Seraikella in Sessions Trial No. 540 of 1990, whereby the sole appellant has been found guilty for committing the offence under Section 302 of the Indian Penal Code and, thereby, he has been sentenced to undergo RI for life. 2. The prosecution story, in brief, is that on 27.3.1990 at about 11.00 a.m. at Village-Bundy, Tola Rengadih, P.S. Seraikella, District-Singhbhum (West), the informant Charan Sardar (PW 8) and his brother Ratan @ Remo Sardar (deceased) were going to the field when their youngest brother accused Raghu Sardar, armed with farsa, arrived and told Ramo Sardar that he was doing rangdari. Remo Sardar replied to the accused that he steals and consumes cocks and hens which is being condemned. On such reply accused Raghu Sardar gave farsa blow on the abdomen of Remo Sardar due to which intestine of Remo Sardar came out of the stomach. The people nearby witnessed the occurrence and chased accused Raghu Sardar. Accused threw the farsd on the ground and started fleeing away towards his house. Sukra Sardar (PW 5), Bagun Sardar (PW 3), Doman Sardar (PW 7) etc. came near Remo Sardar and some of them caught the accused after chase. Remo Sardar and Raghu Sardar were brought to home and by that time it was raining. After the rain stopped, the informant Charan Sardar (PW 8} produced Remo Sardar, accused Raghu Sardar and farsa before the Officer-in-charge of Seraikella Police Station and submitted a written report (Ext. 1). In course of medical treatment Remo Sardar died at Jamshedpur hospital. After investigation charge-sheet was submitted and cognizance was taken under Section 302, IPC. 3. In order to prove the charge against the appellant altogether eleven prosecution witnesses were examined on behalf of the prosecution in course of the trial. There is as many as nine material witnesses upon whom the prosecution relied mainly to prove the guilt of the appellant. PW 1 Gagan Sardar, did not claim to be the eyewitness to the actual assault, but he saw the appellant fleeing away from the place of occurrence being followed/chased by some villagers and ultimately caught and brought to the place of occurrence. He also saw the injured Remo Sardar at the place of occurrence. PW 1 Gagan Sardar, did not claim to be the eyewitness to the actual assault, but he saw the appellant fleeing away from the place of occurrence being followed/chased by some villagers and ultimately caught and brought to the place of occurrence. He also saw the injured Remo Sardar at the place of occurrence. He had accompanied the informant along with injured Remo Sardar and assailant Raghu Sardar to the police station. At the police station he had written the complaint on the dictation of the informant Charan Sardar (proved Ext. 1). He had also seen a farsa lying at the place of occurrence. In para 19 of his cross-examination he had stated that though Remo Sardar was injured but in sense and was talking slowly. 4. PW 2 Arjun Sardar is the sarpanch of Manik Bazar Gram Panchayat. He is a hearsay witness. He was informed by one Bagun Sardar (PW 3) about the occurrence and then only he came to the house of the informant, where he found Remo Sardar in an injured condition. He had also seen a farsa near the injured and had also found the appellant who was tied. The injured was talking and on being asked by the sarpanch, he told that it was the appellant who had assaulted him with farsa and injured him. But, however, in para 15 of his evidence (cross- examination) he had admitted that he had not seen/witnessed the occurrence of assault. 5. PW 3 Bagun Sardar is a cultivator, who had heard nulla at about 11 a.m. on the date of occurrence and further saw that some villagers were chasing the appellant and later he was caught and brought to the house of the informant. He had further stated in para 1 of his evidence that the appellant has assaulted Remo Sardar in the house (not outside the house/on the way to the field as stated in the First Information Report). He came to learn from Charan Sardar (informant) that it was the appellant who had assaulted Remo Sardar. In para 11 he had further disclosed that though he had gone to the police station with the informant, but he was never examined by the police. For the first time he was narrating about the occurrence before the trial Court. 6. PW 4 is Jagannath Sardar, the full brother of the informant, deceased Remo Sardar and the appellant. In para 11 he had further disclosed that though he had gone to the police station with the informant, but he was never examined by the police. For the first time he was narrating about the occurrence before the trial Court. 6. PW 4 is Jagannath Sardar, the full brother of the informant, deceased Remo Sardar and the appellant. He, too, claims himself as the eye-witness to the occurrence. But he completely denied the story of catching the appellant by the villagers after a good chase. In para 7 of his evidence he had stated that the informant Charan Sardar was working in his field at the time of occurrence and he had arrived at the place of occurrence after an hour of the occurrence. According. to what he had stated in para 11 of his evidence, at the time of occurrence, deceased Remo Sardar was drying paddy in his courtyard (angan). He further stated in para 13 of his evidence that the informant Charan Sardar had given the written complaint at the police station on his dictation. 7. PW 5 is Sukra Sardar, son of the informant Charan Sardar. In para 1 of his deposition he stated in clear terms that the appellant, on the alleged dated and hour of occurrence was first seen chasing after Jagat Sardar with a farsa in his hand. On being remonstrated by Remo Sardar and on being questioned by him as to why he was chasing after Jagat Sardar, the appellant retorted that he had no business to interfere and then inflicted Jarsa blow on the abdomen of Remo Sardar as a result of which intestine came out causing profuse bleeding. Then the appellant stated fleeing away after throwing the tangi but ultimately caught and was kept tied. In para 13 of his cross-examination he further stated that after sustaining injury, Remo Sardar went senseless and was unable to talk. 8. PW 6 Karm Sardar has been tendered for cross-examination. PW 7 is Doman Sardar, who had stated that he knew nothing about the occurrence and hence he was declared hostile by the prosecution. 9. PW 8 is Charan Sardar, the informant of the case as well as brother of the deceased Remo Sardar and the appellant, who had repeated the story which he had narrated in his written report (First Information Report). 9. PW 8 is Charan Sardar, the informant of the case as well as brother of the deceased Remo Sardar and the appellant, who had repeated the story which he had narrated in his written report (First Information Report). In para 10 of his cross-examination he stated that at the time of occurrence or altercation between the appellant and the deceased, there was nobody except the informant. In para 11 he further stated and added that when Remo Sardar was brought home, then only other people came to his house. 10. PW 9 is Dr. Yogendra Nath, who had conducted post-mortem examination on the dead body of the deceased Remo Sardar @ Rattan Sardar. The evidence of the doctor suggests two important things, firstly he found a stab wound, measuring 20 cm. x 17 cm. x abdominal cavity over right abdomen, traversely situated 10th and 11th ribs of right chest including liver and intestine, secondly the doctor has opined that such injury was possible by inflicting kulhari blow if the victim was in lying position. 11. PW 10 Sri Rattan Kumar Singh is the Investigating Officer of this case. In paragraphs 1 and 2 of his evidence he had deposed on oath that he had taken the charge of the investigation of the case from the very date of its institution and in course of investigation he had examined Charan Sardar, i.e. the informant (PW 8), Sukra Sardar (PW 5) and Doman Sardar (PW 7) and thereafter, he submitted the charge-sheet in the case. In his cross-examination he has, however, deposed that at the time of lodging of the First Information Report he, too, was present at the police station and at that time the injured Remo Sardar @ Rattan Sardar was senseless. 12. PW 12 is the police officer, the Officer -in-charge of Seraikella police station on 23.7.1990, who had received the written report of the informant Charan Sardar, referred the injured Remo Sardar to Seraikella hospital and also arrested the appellant who was brought by the informant and other villagers to the police station. This witness had also seized the weapon of assault (farsa) which was produced at the police station by the informant under a seizure list. He had also prepared the injury report of Remo Sardar before sending him to Seraikella hospital. On the same day he had inspected the place of occurrence. This witness had also seized the weapon of assault (farsa) which was produced at the police station by the informant under a seizure list. He had also prepared the injury report of Remo Sardar before sending him to Seraikella hospital. On the same day he had inspected the place of occurrence. He had forwarded the appellant to the judicial custody on 14.7.1990 and, thereafter, he handed over the investigation to PW 10 Ratan Kumar Singh. 13. The defence of the appellant was of total denial and his further plea was that in order to grab his share of property in the family, his own brother and their sons had implicated him on utter false allegations. 14. Mr. B.M. Tripathy, learned Counsel appearing for the appellant assailed the impugned judgment of conviction and sentence on the following grounds: (i) The learned trial Court has not appreciated the vital contradictions in the evidence of prosecution witnesses and the appellant was entitled to the benefit of doubt. (ii) The trial Court ought to have considered that the story depicted by the informant (PW 8) in the First Information Report was completely changed by the other prosecution witnesses during trial and if the evidences of other PWs are taken into consideration the presence of PW 8 at the place of occurrence is ruled out. (iii) Lastly, it has been submitted that at best the case falls within the ambit of Section 304 (II) of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 15. Considering the submissions advanced on behalf of the appellant and after closely scrutinizing the evidence of the prosecution as discussed above, we are of the view that the evidence adduced by the prosecution does not establish the ingredients of Section 302, IPC. As a matter of fact from the evidence adduced by the prosecution the ingredients of Section 304 (I) of the Indian Penal Code have certainly been established. 16. Accordingly, the conviction and sentence passed by the trial Court under Section 302, IPC against the appellant is hereby set aside and the appellant is held guilty for committing the offence under Section 304 (I) of the Indian Penal Code and, consequently, he is sentenced to undergo RI for a period of ten years. 17. 16. Accordingly, the conviction and sentence passed by the trial Court under Section 302, IPC against the appellant is hereby set aside and the appellant is held guilty for committing the offence under Section 304 (I) of the Indian Penal Code and, consequently, he is sentenced to undergo RI for a period of ten years. 17. As it appears from the record that the appellant has already remained in custody for more than ten years and, as such, he is directed to set at liberty forthwith if not wanted in any other case. With this alteration in conviction and modification in, sentence, this appeal is dismissed.