Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 689 (JHR)

Rajesh Sahu v. State of Jharkhand

2010-06-30

D.K.SINHA

body2010
JUDGMENT : D.K. SINHA, J. 1. Instant criminal appeal is directed against the judgment of conviction and order of sentence dated 7.3.2002, recorded by Shri Nagendra Kumar, IVth Additional Judicial Commissioner, Khunti in S.T. No. 261/99, by which the sole appellant Rajesh Sahu was convicted under Part II of Section 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 2. Prosecution story in short as it stands narrated by the informant Raghu Sahu (since deceased) recorded at the referral hospital Torpa on 2.7.1998 at about 19:30 hours was that the appellant Rajesh Sahu had raised a brick-built boundary adjacent to the land of the informant a few months ago and thereafter the informant had raised wall on his own land adjacent to the wall already raised by the appellant. However the wall that was constructed with the help of boulders by the informant was protected by putting earth around the foundation so that the wall may not fall during heavy rain in the rainy season. Informant narrated that during rainy season, the appellant Rajesh Sahu constructed a drain with its outlet in the land of the informant. On the same day of his statement at about 6:00 p.m. while he was closing the outlet of the drain of the appellant it was alleged that Rajesh Sahu came there and started abusing him to which the informant prevented not to abuse and also asked him to get a separate drain constructed with the outlet other than his land. Upon such protest, it was alleged that the appellant became very much furious, snatched the spade from the hands of the informant and inflicted blows on the head as well as face of the informant with the spade as a result of which he sustained bleeding injuries and his tooth was amputated. He fell down becoming unconscious. He was removed to referral hospital where he was being treated. The occurrence was witnessed by his wife and daughters. His statement was recorded and thumb impression obtained at the referral hospital Torpa. Consequently police registered Torpa P.S. Case No. 13/98 on 2.7.1998 for the alleged offence under Sections 324/325/307 of the Indian Penal Code and proceeded with the investigation. The informant succumbed his injuries during treatment and thereafter the police submitted charge-sheet against the sole appellant for the offence u/s 302 of the Indian Penal Code. Consequently police registered Torpa P.S. Case No. 13/98 on 2.7.1998 for the alleged offence under Sections 324/325/307 of the Indian Penal Code and proceeded with the investigation. The informant succumbed his injuries during treatment and thereafter the police submitted charge-sheet against the sole appellant for the offence u/s 302 of the Indian Penal Code. In course of investigation, the police collected blood stained spade from within the boundary of the appellant Rajesh Sahu and prepared seizure list. Appellant was put on trial after the charge against him was framed u/s 302 of the Indian Penal Code, however, he was convicted under Part II of Section 304 of the Indian Penal Code. 3. Prosecution had produced and examined altogether eight witnesses and proved other various documents viz. Inquest Report (Ext.1), signature of P.W.-1 Tulsi Bhagat on the seizure list (Ext.2), post mortem report (Ext.3), fardbeyan (Ext.4), formal F.I.R. (Ext.5), carbon copy of inquest report (Ext.6), seizure list (Ext.7) and the case diary (Ext.8). 4. It is evident from the inquest report that the informant died in the morning of 3.7.1998 during his treatment and inquest report was prepared on the same day at about 7:15 a.m. 5. Mr. P.P.N. Roy, the learned Sr. Counsel submitted that the appellant Rajesh Sahu has been erroneously convicted by the Trial Judge without legal evidence on the record. Prosecution had examined eight witnesses and the Trial Judge convicted the appellant relying upon the uncorroborated testimony of P.W.-4 Jaimati Devi, widow of the deceased and P.W.-5 Sunita Devi, daughter of the deceased and both were interested and partisan witnesses. P.W.-1 Tulsi Bhagat was mere a seizure list witness, whereas P.W.-2 Sitaram Bhagat and P.W.-3 Mahadeo Sahu were unfavourable to the prosecution who did not support the prosecution case. P.W.-6 Dr. Lalita Verma had held autopsy on the body of the deceased and admitted the probability of the injuries found on the person of the victim could be caused by stones and boulders. P.W.-7 Rajendra Jaiswal was the hearsay witness, whereas P.W.-8 Shaligram Chaudhary was the formal witness who erroneously proved the documents. 6. Advancing his argument Mr. Roy submitted that the appellant has been highly prejudiced for non-examination of the Investigating Officer as he has been denied of an opportunity to cross-examine the Investigating Officer with regard to the alleged place of occurrence and his objective finding. 6. Advancing his argument Mr. Roy submitted that the appellant has been highly prejudiced for non-examination of the Investigating Officer as he has been denied of an opportunity to cross-examine the Investigating Officer with regard to the alleged place of occurrence and his objective finding. In the instant case, place of occurrence could not be established as no blood could be found by the I.O. at the pointed place of alleged occurrence. Informant in his statement before the police had consistently stated that the occurrence was witnessed by his wife Jaimati Devi' and two daughters Sunita Devi and Anita Kumari, but for the reasons best known to the prosecution Anita Kumari was withheld from the witness box and in that manner, the prosecution withheld an important witness from the witness box. Neither blood stained clothes of the victim nor blood smeared cloth of the widow and the daughters of the deceased was seized by the Investigating Officer so as to corroborate the version of the informant who had narrated that he was removed by his wife and daughter and at that time, he had profuse bleeding from his head injuries. Even the seized weapon alleged to be used in assault was not produced before the Doctor for seeking his opinion as to whether the injuries found on the face and head of the victim could be possible by the spade. The daughter of the deceased P.W.-5 Sunita Devi was consistent in her statement that body of her father had fallen on earth at the place of occurrence but the Investigating Officer did not collect the blood stained earth. 7. While attracting the attention of this Court, Mr. Roy, the learned Sr. Counsel submitted that P.W.-6 Dr. Lalita Verma had found following ante-mortem injuries on the person of the deceased- Raghu Sahu: (i) Lacerated injury on occipital area about 2"x 1/2" x l/4". Occipital bone fractured. Old clotted blood present. (ii) Lacerated injury about 3" away from the injury No.(i) on right side with the dimension of 2"x 1/2"x 1/2". Parietal bone fractured. Old clotted blood present. (iii) In right side all bones like frontal, maxillary temporal were crushed. Eyeball of right side crushed. In the opinion of the said witness, the cause of death of Raghu Sahu was due to injury on his vital organ, ante-mortem in nature. Parietal bone fractured. Old clotted blood present. (iii) In right side all bones like frontal, maxillary temporal were crushed. Eyeball of right side crushed. In the opinion of the said witness, the cause of death of Raghu Sahu was due to injury on his vital organ, ante-mortem in nature. Time elapsed since death was assessed within 24 hours, alleged to be caused by heavy and blunt weapon. When called upon, the Doctor opined the probability that such injuries were possible by inflicting blows with the back portion of the spade and was possible also by heavy stone. She had proved the post mortem report (Ext.3). 8. Finally, Mr. Roy, the learned Sr. Counsel raised the technical point that the appellant Rajesh Sahu was confronted with such material in his statement recorded u/s 313 of the Code of Criminal Procedure which was never brought on the record and in that manner, the appellant has been highly prejudiced. It would be evident from the perusal of the statement aforesaid that he was confronted that on 2.7.1998 he had knowingly committed murder of Raghu Sahu by inflicting blow with the spade. It was not the case of the prosecution that Raghu Sahu instantaneously succumbed his injuries at the spot so as to attract an adverse inference against the appellant. Learned Trial Judge failed to appreciate that there was enmity prevailing between the parties since before and admittedly, they were the agnates. According to the prosecution case, controversy arose on a trifling matter of stopping the outlet of the kachcha drain that was constructed by the appellant and such issue cannot be the cause of determination or intention to commit murder by the accused. 9. Advancing his argument on the point of recording the statement of the accused u/s 313 of the Code of Criminal Procedure, Mr. Roy relied upon the decision of the Apex Court, reported in Shaikh Maqsood Vs. State of Maharashtra, (2009) 6 SCC 583 wherein Their Lordships observed, The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.... This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.... The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 10. Mr. Roy further submitted that the charge was framed u/s 302 of the Indian Penal Code against the appellant but he was convicted under Part II of Section 304 of the Indian Penal Code. Evidence adduced and produced on behalf of the prosecution could not establish that it was the intention of the appellant or he had knowledge that by inflicting blows with the help of spade could cause death to the informant in the long run and it was not safe for the Trial Judge to rely upon the uncorroborated evidence of P.W.-4 Jaimati Devi and P.W.-5 Sunita Devi for convicting the appellant as he had expressed in his statement recorded u/s 313 of the Code of Criminal Procedure that he was falsely implicated and the enmity between the parties could not be disputed. 11. In view of the facts and circumstances of the case, the learned Sr. Counsel added that the occurrence did not take place in the manner presented by the prosecution and a reasonable doubt was created as to the complicity of the appellant, who deserves acquittal in this case. 12. On the other hand, Mr. Md. 11. In view of the facts and circumstances of the case, the learned Sr. Counsel added that the occurrence did not take place in the manner presented by the prosecution and a reasonable doubt was created as to the complicity of the appellant, who deserves acquittal in this case. 12. On the other hand, Mr. Md. Hatim, the learned A.P.P. appearing for the State-respondent submitted that the conviction of the appellant under Part II of Section 304 of the Indian Penal Code is well-founded based upon the reasoning in the judgment recorded by the Trial Judge. The eye-witnesses viz. P.W.-4 Jaimati Devi, widow of the deceased and P.W.-5 Sunita Devi, daughter of the deceased have consistently and categorically narrated the manner of occurrence and participation of the appellant therein and further narrated as to how on a trifling matter the appellant snatched the spade from the hands of the deceased and inflicted blows on his head and face resulting into bleeding injuries and his death. The victim was removed by these two eye-witnesses and another to the home and from there to the hospital where he succumbed in course of treatment. The manner of assault and the weapon/tool used in such assault finds corroboration in the statement of P.W.-6 Dr. Lalita Verma that such injuries found on the person of the deceased were possible by inflicting blows with the back portion of the spade. The time assessed by the Doctor since death till the post mortem examination stands corroborated with the time of assault given by the informant in his fardbeyan before his death at the referral hospital Torpa and in that view of the matter, prosecution has proved the case on all the major issues. The learned A.P.P. further submitted that in view of the consistency of the eyewitnesses who were the natural witnesses readily available at the place of occurrence, non-examination of the Investigating Officer and the fact that his objective finding could not be brought on the record, would in no way prejudice the defence of the appellant. The learned A.P.P. further submitted that in view of the consistency of the eyewitnesses who were the natural witnesses readily available at the place of occurrence, non-examination of the Investigating Officer and the fact that his objective finding could not be brought on the record, would in no way prejudice the defence of the appellant. As regards statement u/s 313 of the Code of Criminal Procedure the injuries inflicted by the appellant with the help of spade caused the death of the informant approximately within twelve hours of the injuries sustained by him and therefore, there was no error when the appellant was confronted with the material in his statement recorded u/s 313 of the Code of Criminal Procedure that he knowingly committed murder of Raghu Sahu by inflicting blows with the spade. He had simply denied his guilt but expressed his desire to adduce the defence witnesses. Yet, no evidence was produced on his behalf. Prosecution case is well proved, as such the judgment of conviction recorded against the appellant and the order of sentence passed thereof did not call for interference in this appeal and it may be dismissed. Non-production of spade either before the doctor who held autopsy or before the court would not in any manner prejudice the defence for the reasons that when called upon P.W.-6 Dr. Lalita Verma testified that the injuries on the deceased were possible by spade. 13. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the appellant was convicted under Part II of Section 304 of the Indian Penal Code for culpable homicide not amounting to murder for the act done by the appellant with the knowledge to cause such bodily injury as was likely to cause death. There appears substance in the argument advanced for and on behalf of the respondent State and the learned Sr. Counsel for the appellant failed to controvert the contentions. 14. P.W.-4 Jaimati Devi and P.W.-5 Sunita Devi both were consistent about the period and time of occurrence when the appellant took out the spade from the hands of the deceased Raghu Sahu and inflicted blows as a result of which he died. Both were consistent about the genesis of the occurrence that controversy arose between the informant as well as the appellant on the issue of draining of rain water. Both were consistent about the genesis of the occurrence that controversy arose between the informant as well as the appellant on the issue of draining of rain water. Spade in question was belonged to the deceased and it was dusk. Both the witnesses stood to the test of cross-examination and their testimony could not be discredited in their respective cross-examination. I find that the corresponding injuries were found by P.W.-6 Dr. Lalita Verma as has been discussed above that all the three injuries were ante-mortem in nature with the fracture of occipital bone, parietal bone and further fracture of frontal and maxillary bones. Blows with the help of spade were inflicted with such intensity that the eyeball of the right side of the deceased was found crushed. Learned A.P.P. has satisfactorily explained that the appellant has not been prejudiced for non-examination of the Investigating Officer and the materials confronted with the appellant in his statement recorded u/s 313 of the Code of Criminal Procedure were the materials which were produced in course of trial and brought on the record by the prosecution. I find that the charge could be proved beyond reasonable doubt for the offence under Part II of Section 304 of the Indian Penal Code and the learned Sr. Counsel appearing on behalf of the appellant failed to show any ground and I do not find any material so as to call for interference in the judgment of conviction and order of sentence recorded against the appellant. I further find that the sentence imposed upon the appellant is adequate and proportionate to the manner of occurrence proved and participation of the appellant therein. Accordingly, this appeal is dismissed. Appellant Rajesh Sahu is directed to surrender in the Trial Court to serve out the remaining period of sentence, failing to which the Trial Court shall take coercive steps against him.