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2009 DIGILAW 352 (JHR)

Raghu Jogi v. State of Jharkhand

2009-03-05

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT This appeal is against the judgment passed by learned Sessions Judge, Seraikella-Kharsawan whereby the appellant has been convicted under Sections 302, 307 and 324 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code, rigorous imprisonment for seven years for offence under Section 307 of the Indian Penal Code and rigorous imprisonment for two years for the offence under Section 324. All the sentences are to run concurrently. 2. The said prosecution against the appellant and two others was initiated on the basis of fardbeyan of the informant Sir Yogi (P.W. 4)-father of the deceased Rohidas Yogi. . 3. The prosecution case, unfolded in the fardbeyan (Ext.-3), in brief, is that on 24.4.2001 at about 8:00 P.M. the appellant Raghu Jogi the informant's grand-son-in-law, came to the informant's house with a farsa in his hand and enquired about his wife-Kamala. He was told that Kamala had not come there. The accused Raghu thereafter, started running towards East in search of his wife. The informant and his son and other family members also followed him. Raghu Jogi was in anger. He was armed with farsa. He rushed on the deceased. Rohidas Yogi tried to intervene and save his daughter. The accused tried to assault his wife with farsa and when Rohidas Yogi was requesting his son-in-law not to do so and tried to save his daughter Kamala, the accused-appellant gave a farsa blow on left shoulder of Rohidas causing him severe bleeding injury. He fell down and after some time died. The accused appellant who was trying to kill his wife also, assaulted her and caused injuries on the feet and ribs. The other two persons Jihur Yogi and Malu Yogi came thereafter and they also assaulted the informant and others. The accused appellant had also assaulted informant causing him injuries on right foot by farsa but the informant somehow managed to snatch away the farsa from the hands of the accused. It has been alleged that the informant's granddaughter Kamala was married with the appellant some time ago but he did not like her. There was frequent quarrel between them. Since, the accused did not want to keep Kamala, he tried to finish her but she could be saved by the intervention and at the cost of life of her father Rohidas. 4. There was frequent quarrel between them. Since, the accused did not want to keep Kamala, he tried to finish her but she could be saved by the intervention and at the cost of life of her father Rohidas. 4. The appellant was charged for killing Rohidas and causing injuries on the informant and his wife Kamala. The charges were framed under Sections 302, 307 and 324 I.P.C. against the appellant. Jihur and Malu Yogi were also charged under Sections 302/34 and 307/34 of the I.P.C. 5. The accused persons denied the charges and pleaded not guilty. Malu and Jihur in their statement under Section 313 Cr.P.C., in addition, took plea of alibi saying that on that date they were not present in the village. The defence tried to make out a case that Kamala was in association with one Ledha Mahato of Village-Datam and was selling liquor against the family tradition, which was disliked by them and for that reason they wanted to finish her. The appellant also tried to make out the case that on the day of occurrence he was also not present in the village. 6. The prosecution, in order to prove the said charges against the accused-persons, altogether examined eight witnesses. 7. P.W. 1-Rabi Yogi, the son of the deceased, P.W. 2-Agnu Yogi, the son-in-law of the informant and the brother-in-law of the deceased, P.W. 3-Doman Yogi, wife of the deceased, P.W. 4-Bir Yogi, the father of the deceased, P.W. 6'-Kamala Yogi, the daughter of the deceased and wife of the accused, are the material witnesses. P.W. 5-Doctor Badhav Chandra Bhagat, has proved the injury report of the injuries on the person of Kamala and the informant P.W. 7-Doctor Akhilesh Kumar Choudhary, had conducted the postmortem on the dead body. He has proved post-mortem report. P .W. 8-Krishna Datt Jha, is the Investigating Officer. 8. Learned trial court on thorough discussion of the oral testimony of the prosecution witnesses and the medical evidence, coupled with the evidence of Investigating Officer (P.W. 8), found the accused-appellant guilty under Section 302 I.P.C. for committing murder of Rohidas and under Section 307 I.P.C. for causing injuries and attempting on the life of Kamala and under Section 324 I.P.C. for causing injury to the informant and convicted and sentenced him as aforesaid. Learned trial court, however, acquitted Malu Yogi and Jihur of the charges against them by giving them benefit of doubt. 9. In this appeal learned counsel assailed the impugned judgment of the trial court on the grounds that the conviction of the appellant is not based on cogent, positive and admissible evidence. All the material witnesses are members of the same family. They were highly interested. Not a single independent witness has been examined to support the prosecution case. The informant is said to have produced and handed over the blood stained 'farsa' which was allegedly used in the incident but the same has not been produced before the court. The I.O. is said to have seized the blood stained farsa and blood stained earth but the same have also not been produced before the court. Learned counsel submitted that withholding of the said vital evidences raise serious doubts. Learned trial court should have drawn adverse inference under Section 114 of the Evidence Act for withholding the said evidences. He further submitted that there was conspicuous absence of mens rea in killing Rohidas by the accused appellant. From the prosecution version, it is evident that the accused appellant had quarrel with his wife Kamala and that she had ran away from the house. The accused while chasing Kamala come to the house, where all the inmates including the deceased were present, but the accused did not cause any injury or harm to any family member. When he did not find his wife in the house, he immediately left the house in search of Kamala. The deceased alongwith other family members tried to rescue Kamala and in the process to, save Kamala, the deceased was accidentally injured. The death was not instantaneous. From the admitted position on record it is clear that the accused appellant had intention to cause harm to Kamala and nobody else. Learned counsel submitted that though there are vital contradictions in the oral testimony of the witnesses. No independent witness came forward to support the occurrence though the incident is said to have taken place in the village. The prosecution has miserably failed to prove the charges against the appellant. Even if the prosecution version is accepted as it is, the case does not come within the ambit of Section 300 of the Indian Penal Code. No independent witness came forward to support the occurrence though the incident is said to have taken place in the village. The prosecution has miserably failed to prove the charges against the appellant. Even if the prosecution version is accepted as it is, the case does not come within the ambit of Section 300 of the Indian Penal Code. The appellant's conviction under Section 302 of the Indian Penal Code is, thus, wholly illegal and contrary to the facts and weight of evidences and the same is unsustainable. The judgment of conviction against the appellant is liable to be set aside. 10. Learned A.P.P. supported the impugned judgment and submitted that in the instant case there are as many as five eye-witnesses who have seen the occurrence with their eyes and of which they have given consistent account. Only because they are members of the same family, their testimony cannot be thrown out. The accused had gone to the informant's house and immediately thereafter went out to chase Kamala. He was followed by the inmates of the house. It is not expected that in such short span of time, the villagers would have come and witnessed the occurrence. The I.O. has fully proved the place of occurrence as well as seizure list of blood stained incriminating farsa and the earth. No prejudice has been caused to the appellants due to non-production of the same, as at least seizure of the said material has been fully proved. The seizure has not been challenged by the defence. The prosecution thus, has established the charges against the appellant, of killing Rohidas Yogi and causing injuries to the informant and Kamala. He has been rightly found guilty and convicted by the impugned judgment. 11. Having heard learned counsel for the appellant and learned A.P.P., we meticulously scrutinized the evidences on record. P.W. 1 Rabi Yogi, P.W. 2-Agnu Yogi, P.W. 3-Doman Yogi, P.W. 4-Bir Yogi and P.W. 6-Kamala Yogi are the eyewitnesses. All of them have given consistent description as to how the accused appellant armed with farsa came to the house and chased Kamala and on intervention assaulted Rohidas, Kamala and the informant with farsa. The father of Kamala, Rohidas tried to rescue her, but the accused hit him with farsa causing severe and deep injuries in the left side of shoulder affecting the vital organs which ultimately caused his death. The father of Kamala, Rohidas tried to rescue her, but the accused hit him with farsa causing severe and deep injuries in the left side of shoulder affecting the vital organs which ultimately caused his death. The Doctor (P.W. 5) has found and proved the following injuries on the person of Kamala: (i) Bruise 2.5 c.m. on occipital region. (ii) Incised wound of 3 c.m. x 1.5 c.m on right knee. . (iii) Incised wound 3 c.m. x 1 c.m. with a seplin of Y2 c.m. on right side of chest introcapular region. He also found the following injuries on the person of the informant as follows: (i) Incised wound 6 c.m. x 1 c.m. x 1.5 c.m. under sum side of right foot, (ii) Incised wound 3 c.m. x 1 c.m. x 1 c.m. on lateral side of right knee. Doctor Akhilesh Kumar Choudhary, who conducted the post mortem of the body of deceased Rohidas found the following injuries: A. Abrasion. (i) Linear abrasion over right side of front of upper abdomen 6 c.m. B. Punctured Wound. (i) Over left side arm anteriorly 2%" x 2%" x muscle deep only. C. Sharp Cut: (i) Over back of left arm upper half 18 c.m. x 5 c.m. x muscle deep only. D. Internal Injuries. Soft tissues under skin over right temporal area of scalp,' contused. . Mild subdural blood over both halves of brain found. In his opinion the injuries were caused by sharp cutting weapon like 'farsa'. P.W.8-Krishna Dutt Jha, in his evidence proved fardbeyan (Ext.-4), Inquest report (Ext.-5), Seizure list of farsa (Ext.-6) and seizure list of blood stained earth (Ext.-6/1). He had found huge amount of blood at the P.O. He had seized the incriminating farsa. The seizure list was prepared and was also proved by him. He has thus, fully corroborated the prosecution case of causing death of Rohidas and several injuries to Kamala and the informant. 12. On appraisal of the evidence and material on record we find that learned court below has rightly come to the conclusion that the death of Rohidas was caused by the accused appellant and that he has also caused injuries on Kamala while attempting on her life. He has also rightly found that the appellant had also caused injuries on the person of the informant. 13. He has also rightly found that the appellant had also caused injuries on the person of the informant. 13. In view of the above, we find the charges under Sections 307 and 324 against the appellant fully proved. 14. However, we are unable to agree with the finding of learned trial court for convicting the accused-appellant under Section 302 of the Indian Penal Code. 15. From the fardbeyan and the subsequent events appearing on record and the oral testimony of the eye-witnesses, it is clearly evident that the accused-appellant had no intention to kill Rohidas. When the accused first time met Rohidas and other family inmates no harm at all was caused to them. But only when Rohidas and other family members tried to rescue Kamala, they sustained injuries. The injuries on Rohidas proved to be fatal. His death was not instantaneous. He subsequently succumbed to the injury. The appellant had no intention to kill Rohidas. The incident was sudden without any premeditation and was in fit of anger when the accused (sic-deceased?) intervened and tried to save Kamala. 16. In view of the above this case falls within Exception-4 of Section 300 I.P.C. Though it is a case culpable homicidal it does not amount to murder: The injuries inflicted by the accused-appellant on Rohidas though proved to be fatal, the prosecution failed to prove that it was caused with intention to kill him. 17. Learned trial court without taking into consideration the said legal aspects has committed an error in convicting the appellant under Section 302 of the I.P.C. The case squarely falls within Exception-4 of Section 300 I.P.C. 18. In view of the above discussions and findings, we set aside the conviction of the appellant under Section 302 of the I.P.C. and hold the appellant guilty for committing offence punishable under Section 304 (Part-II) of the I.P.C. In our opinion, the interest of justice will be served by sentencing the appellant to the period already undergone by him in custody. This appeal is accordingly, dismissed with the said modification in the order of conviction and sentence of the appellant under Section 302 of the I.P.C. However, we uphold the conviction and sentence awarded under Sections 307 and 324 of the I.P.C. This appeal is, accordingly, dismissed with the said modification. The appellant, abovenamed, shall be released from custody forthwith, if not wanted in connection with any other case.