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Jharkhand High Court · body

2010 DIGILAW 203 (JHR)

Laxman Gope @ Yadav v. State of Jharkhand

2010-02-03

PRADEEP KUMAR

body2010
JUDGMENT Heard the learned counsel for the appellants and learned counsel for the State. 2. The instant appeal is directed against the judgment of conviction dated 30.5.2000 and order of sentence dated 7.6.2000 passed by Sri Ram Snehi Thakur, 2nd Additional Sessions Judge, Bermo at Tenughat in S.T. No. 51/1994/S.T. No.11/2000 by which judgment the sole appellant has been found guilty for the offence u/s 304(11) of the I.P.C. and sentenced to undergo R.I. for 7 years. 3. It is submitted by learned counsel for the appellant that conviction of the appellant is only on the basis of the evidence of the informant, P.W. 4, Kauleshwar Paswan that an extra-judicial confession was made by the deceased which is not possible and contradicted by his own brother, P.W. 5. Further, the statement of the doctor that the victim with such injury cannot came to consciousness and give a statement was not considered by the trial court and statement of the informant is only to falsely implicate the appellant, which cannot be relied and hence the judgment of conviction and order of sentence passed by the court below is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the State has supported the case of the prosecution and stated that it is clear from the evidence of the informant which he stated in the fardbeyan as also in the court that his father regained consciousness for sometime and gave the name of the appellant as the person who assaulted him and as such the conviction is well founded and requires no interference by this court. 5. After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the fardbeyan given by the informant, P.W. 4, Kauleshwar Paswan on 16.11.1993 at 12.00 noon stating therein that on 15.11.1993 at about 11.30 in the day when he reach the Swang Hospital, then he came to know that his father Mohan Ram, who was driver of the Swang Hospital, was assaulted by two persons in front of Bank of India, Swang Branch on the road causing injury and he is lying unconscious in the Hospital. He could not get consciousness till late night, but at 12.00 a.m. In the night his father came to consciousness and told him that Lakhan Gope, resident of Swang S/o Gobind Yadav alongwith one person came and demanded money regarding the supply of ration in their house and when his father stated that he will give later then he was assaulted by the said Laxman Gope. He fell down on the road and received serious injury. Then they ran away. Today at 16.11.1993 when his father was being taken to Ranchi for treatment, he died on the way. 6. On the basis of the said F.I.R. police registered a case u/s 302/34 of the I.P.C. against the accused and after investigation submitted charge-sheet. Since, the case was exclusively triable by the Court of Sessions, learned C.J.M. committed the case to the Court of Sessions Judge and finally the case was trial by 2nd Additional Sessions Judge, Bermo at Tenughat who found the appellant guilty and convicted and sentenced him as aforesaid. 7. It appears that in course of trial prosecution has examined 6 witnesses to prove its case. P.W. 1 is Sabra Khatoon. P.W. 2 is Dr. Upendra Prasad who conducted the post mortem examination. P.W. 3 is Hari Singh. P.W. 4 is Kauleshwar Paswan, informant of the case. P.W. 5 is Om Prakash Paswan. P.W. 6 is Yogendra Prasad, investigating Officer of the case. 8. P.W. 1 has stated in the court that on the date of occurrence i.e. on 15.11.1993 when she was going to the post office, then she saw that somebody is asking Mohan Ram as to why he is always returning him and not giving money. Then Mohan Ram stated that he will give the money in the next month. Then the other person gave two blows to Mohan, one at his 'Panjra' and other on his cheek, whereupon, Mohan Ram fell down There was hulla. She also asked the boys present there to catchhold of the accused, but both the boys ran away towards the office. Then she went to the Hospital and told the sisters that the staff driver has been beaten by some unknown person. The injured will tell the name of those unknown persons, if he regained consciousness. Thereafter, she posted her letter and went back to her duty. Then she went to the Hospital and told the sisters that the staff driver has been beaten by some unknown person. The injured will tell the name of those unknown persons, if he regained consciousness. Thereafter, she posted her letter and went back to her duty. She has stated that she could not identify the persons who assaulted Mohan Ram. She could not identify the accused present in the court. In her cross-examination she has stated that after the other persons gave the blow on Mohan's stomach, he started getting fits. Then he gave slaps on his face to which Mohan fell down on the road, where there were stones and soil and became unconscious. She also stated in her cross-examination at para 11 that time of occurrence she found that Mohan Ram was in a drunken condition. 9. P.W. 2 is doctor, Upendra Prasad, who has stated in the court that he examined the deceased on 16.11.1993 at 4.00 p.m. and found lacerated wound in the occipital region 2" X 1/2" X Scalp Deep. On dissection, he found fracture of occipital bone and haematoma in the occipital region under the meninges. He also found liver cirrhosis with multiple wounds of different sizes. In his opinion aforesaid injuries are possible by fall on sharp edged stone. He proved the Post Mortem report marked as Ext.-1. In cross-examination he has stated that cirrhosis is a disease of liver which is caused by chronic consumption of alcohol and in his opinion deceased was addicted to alcohol. He also admitted in cross-examination that wound on the occipital was stitched and no surgery was done with regard to the clotting of blood in meninges which is the cause of senselessness to the deceased. In his opinion, if surgery is not done, a patient with blood clot of meninges will never regain consciousness and in the surgery clotting of blood is removed from the brain by mechanical method. 10. P.W. 3, Hari Singh is the witness of inquest and he has proved the signature on the inquest report marked as Ext.-2. 11. P.W. 4, Kauleshwar Paswan is the informant of the case and he has stated on 15.11.1993, when he came to Swang Hospital then he learnt that two persons have assaulted his father, Mohan Ram near Bank of India Branch and his father is lying unconscious in the Hospital. 11. P.W. 4, Kauleshwar Paswan is the informant of the case and he has stated on 15.11.1993, when he came to Swang Hospital then he learnt that two persons have assaulted his father, Mohan Ram near Bank of India Branch and his father is lying unconscious in the Hospital. He has received injury on his head. He has stated that at about 12.00 in the night his father become conscious and told him the name of Laxman Gope S/o Govind Yadav, who supply ration, had assaulted him alongwith another persons, since he did not pay Rs. 200/- which was due against him, since he had no money. After that he again become unconscious on 16.11.1993 and when they were taking his father to Ranchi for further treatment, he died on the way. Then he gave his statement to the police. He proved his signature on the fardbeyan marked as Ext.-3. He identified the accused in the court. In his cross-examination, at para 8, he has stated that his father was being attended by about 5 nurses and a doctor and they were waiting for his father to regain consciousness. He has stated that when his father came to consciousness, then he went to inform the doctor, but the doctor was not available. At para 10 he has stated that he himself had gone to the police station and informed about the occurrence. The Investigating Officer had come to the hospital, but finding his father unconscious, they went back. At para 14, he has admitted that when his father regained consciousness, then other nurses came near his father. He also admitted that one Dr. Sinha was also on duty at that time. He also admitted that his father was admitted in a ward with many other patients. 12. P.W. 5, Omprakash Paswan is the brother of the informant and son of the deceased, Mohan Ram. He has stated that on 15.11.1993, hearing that his father become unconscious by assault, came to the Hospital at 3.30 and found that his father is unconscious. He has stayed with his father for the whole night and stated in para 4 that he never regained consciousness and on 16.11.1993, while he was being taken to Ranchi, he died on the way. He has stayed with his father for the whole night and stated in para 4 that he never regained consciousness and on 16.11.1993, while he was being taken to Ranchi, he died on the way. However, he has stated that he heard that his father was assaulted by the accused Laxman Gope, since money was due against him regarding the ration supplied by him. 13. P.W. 6 is the Investigating Officer Yogendra Prasad, who has stated that he recorded the statement of the informant, P.W. 4 on 16.11.1993 and registered a case u/s 302/34 of the I.P.C and after investigation submitted charge-sheet. He proved his signature on the Fardbeyan as also his handwriting, in the fardbeyan. The F.I.R. was also marked as Ext.-3. Formal F.I.R. was also marked as Ext.-4. He has also proved the inquest report and stated that after examination of the witnesses and supervision of the case by superior authorities, he submitted charge-sheet in the case. In cross-examination he has stated that during investigation eye witnesses have stated that blow was given on the stomach of the deceased due to which he became unconscious and fell on the ground. In para 11 he has stated that he received a telephonic message that a person is lying unconscious in the hospital, but he had not taken the statement of the doctor and nurses of the case. He has also admitted in para 12 that he had not conducted T.I.P. of the eye witness, Sabra Khatoon. 14 Thus, from the evidences, it appears that only the informant, P.W. 4 has supported the prosecution case that the injured-deceased regained consciousness at about 12.00 a.m in the night which has not been supported by the doctor, P.W. 2, who has stated that since, the victim had injury on the occipital region and there was blood clotting in the meninges of the occipital region, he could not have regained consciousness until and unless surgery was done and clotting from the meninges of the occipital region was removed by mechanical method. Moreover, the informant has also been contradicted by his own brother, P.W. 5, who has stated in para 4 of his chief that he was in the hospital throughout and his father never regained consciousness. Moreover, the informant has also been contradicted by his own brother, P.W. 5, who has stated in para 4 of his chief that he was in the hospital throughout and his father never regained consciousness. Other witnesses i.e. mother of the informant who is stated to be present for the whole night alongwith her two sons has not been examined in this case nor the other nurses or doctor who were present there have been examined and proved that the deceased regained consciousness in the midnight at about 12.00 a.m. 15. Hence, the case of the prosecution become doubtful, and in that view of the matter, the benefit of doubt is given to the appellant and he is acquitted from the charge levelled against him. Further, the judgment of conviction dated 30.5.2000 and order of sentence dated 7.6.2000 passed by Sri Ram Snehi Thakur, 2nd Additional Sessions Judge, Bermo at Tenughat in S.T. No. 51/1994IS.T. No.11/2000 is set aside. 16. In the result, appeal is allowed. Since, the appellant is on bail, he is released from the bondage of bail bond.