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2007 DIGILAW 474 (JHR)

Lalka Tudu v. State of Bihar (now Jharkhand)

2007-06-20

AMARESHWAR SAHAY, D.P.SINGH

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JUDGMENT :- The sole appellant Lalka Tudu has preferred this appeal against the judgment and order dated 29-7-1999 and 30-7-1999 passed by 3rd Additional Sessions Judge at Dhanbad in Sessions Trial No. 274 of 1997 whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and S. 27 of the Arms Act and has sentenced to undergo R.I. for life. 2. Brief facts leading to this appeal are that the deceased Arbind Tudu got admitted for his treatment on 28.4.1997 with fire arm injury on his left chest in Central Hospital, Jagjivan Nagar, Dhanbad. On information to Saraidhela police A.S.I. Ram Singhasan Choubey arrived at the hospital on 29-4-1997 and recorded his fard beyan at about 3.30 p.m. at the bed. According to the informant he was in his house at 3. p.m. on 28-4-1997, situated in Mauza Nutandih P.S. Tundi when the appellant, his step brother, arrived and started exchanging hot words when the informant asked him not to do like that, he became more aggressive and started abusing him. Further stated on further protest by the informant, the appellant took out a revolver from his possession and fired upon him resulting in firearm injury on the left side of his chest. Further stated when his wife Chano Manjhian tried to intervene, she was also assaulted by the appellant with butt of the revolver. According to the informant, the appellant used to abuse and assault them for minor family disputes. He further asserted that after this, the village sarpanch Banka Bihari Mandal was informed and he brought him to hospital for his treatment. 3. Saraidhela police registered Saraidhela P. S. Case No. 20 of 1997 on this fard beyan under Sections 307, 326, 323 of the Indian Penal Code and S. 27 of the Arms Act and started investigation in this case. The informant succumbed to his injuries and died next day. The police after completion of investigation submitted charge sheet against the appellant under Section 302 of the Indian Penal Code and 27 of the Arms Act. The trial of the appellant was committed to the Court of session where he was charged on 8-12-1997 for the offences to which he pleaded not guilty and claimed false prosecution. The police after completion of investigation submitted charge sheet against the appellant under Section 302 of the Indian Penal Code and 27 of the Arms Act. The trial of the appellant was committed to the Court of session where he was charged on 8-12-1997 for the offences to which he pleaded not guilty and claimed false prosecution. However the learned trial Court after examining the witnesses and relying upon the last statement of the deceased recorded by ASI and marked as Ext.- 2 found and held him guilty under Section 302 of the Indian Penal Code and sentenced him to serve R.I. for life. 4. The present appeal has been preferred mainly on the ground that the prosecution witnesses have not supported the prosecution story. According to Sri Mahesh Tiwary, learned counsel for the appellant, the trial Court has committed a mistake by relying upon the last statement of the deceased. It was strenuously argued that the eyewitness of the occurrence P.W. 2, 5 and probable witness P.W. 3 having been declared hostile by the prosecution, the appellant deserves to be acquitted of the charges. It was also pointed out that the learned trial Court has failed to consider that the fard beyan was not supported by any circumstance on the record. Therefore the statement may not be accepted as exception and relied upon under Section 32 of the Indian Evidence Act. 5. We have anxiously considered the submissions made on behalf of the appellant. It is admitted fact that the appellant Lalka Tudu and deceased Arbind Tudu were stepbrothers. It has also come on record that he died due to bullet injury caused on the left side on his chest. The post-mortem conducted by P.W. 1 Dr. S. Kumar supports the fact that the injury was caused with firearm resulting in fracture of ribs, vertebra and extensive bleeding. He has been cross-examined at length in which he admitted that the injured may be alive and can speak clearly if the bleeding was checked. This further stands supported by evidence of P.W. 5 wife of the deceased that her husband was killed with pistol, P.W. 2, Badni P.W. 3 Rubi Lal Tudu are own mother and uncle of the appellant. They naturally tried to save the appellant. This fact has been considered by the learned trial Court in paras 15 and 16 of the impugned judgment. 6. They naturally tried to save the appellant. This fact has been considered by the learned trial Court in paras 15 and 16 of the impugned judgment. 6. P.W. 4 Ram Singhasan Choubey has recorded the statement of the deceased on 29-4-1997 at about 3.30 p.m. According to him the informant was in a fit condition to make statement and he recorded it in accordance with directions given by officer-in-charge of Saraidhela police station. He further proved the fard beyan recorded in his writing and signature as Ext -2. He has further proved the signature of Court witness B. B. Mandal on his fard beyan. He has prepared the inquest report Ext.-3 and got the signature of Court witness as well as P.W. 2 on the inquest report, which is marked as Ext.- 4. He has been cross-examined at length in which he was questioned regarding the authority for recording the statement of the deceased. Much stress was laid before the trial Court that the statement recorded by P.W. 4 may not be correct as the deceased might not be in a position to give any statement. This fact has been denied by P.W. 1 Dr. S. Kumar. Furthermore the recording of the statement of the deceased has been proved beyond doubts by Court witness B. B. Mandal. He has specifically asserted that during chief P.W. 5 Chano Manjhian came to him in the afternoon on 28-4-1997 and informed him that her husband has been injured with fire arm. He arrived at the house of the deceased and carried him to Central Hospital. He further asserted that in his presence the statement of deceased Arbind Tudu was recorded by ASI, Saraidhela and proved his signature on it as Ext - 2/1. During cross-examination this witness has admitted that though he found him senseless when he arrived at his house but the statement was recorded in his presence in which he has signed vide paras 7 and 8 of his cross-examination. Therefore the fard beyan recorded by P.W. 4 appeared to be proved beyond doubts. 7. Learned trial Court has considered all these aspects in the impugned judgment and decided to rely upon the last statement of the deceased for the reasons given vide paras 21, 30 and 32 of the impugned judgment. We do not find any valid ground to differ with the view taken by the learned trial Court. 7. Learned trial Court has considered all these aspects in the impugned judgment and decided to rely upon the last statement of the deceased for the reasons given vide paras 21, 30 and 32 of the impugned judgment. We do not find any valid ground to differ with the view taken by the learned trial Court. The statement of Arbind Tudu recorded by the police on 29-4-1997 when he was in a condition to state specifically, has been proved beyond doubts. In his statement the deceased has specifically named the appellant to have fired upon him resulting in his death. P. Ws. 2, 3 and 5 being relation of the appellant have resiled from their earlier statement. However the independent witness B. B. Mandal as Court witness has supported these facts that the last statement of deceased was recorded by the police in his presence. As such we do not find any ground to discard the last statement of the deceased in which he has clearly named the appellant to have fired upon him resulting in his death. Such statements also deserve the respect by the Courts as laid down in the law and by judicial pronouncements. 8. Having considered the facts and circumstances mentioned above, we find and hold that the conviction of the appellant by the trial Court deserves to be confirmed. At this stage, the learned counsel for the appellant submits that the incident took place during hot exchange of words and on the spur of moment. It was also pointed out that the appellant has not made second fire or any other assault on the deceased. Therefore the conviction of the appellant may be altered under Section 304 Part-1 of the Indian Penal Code and sentence modified accordingly. The learned APP has no objection. It has come on record that the appellant has remained in custody from April' 1997. Keeping in view the facts and circumstances mentioned above, we find that the ends of justice should be served properly if the conviction of the appellant is converted into under Section 304 Part I of the Indian Penal Code. The appellant has remained in custody for more than 10 years, accordingly, the sentence be modified to R I for 10 years. 9. In this manner, this appeal is dismissed with alteration in conviction and modification in sentence as indicated above. The appellant has remained in custody for more than 10 years, accordingly, the sentence be modified to R I for 10 years. 9. In this manner, this appeal is dismissed with alteration in conviction and modification in sentence as indicated above. Since the appellant has remained in custody for more than 10 years, he is directed to be released henceforth, if not wanted in any other case. Appeal dismissed.