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Jharkhand High Court · body

2010 DIGILAW 862 (JHR)

Lutan Nath Goswami v. State of Jharkhand

2010-09-06

PRADEEP KUMAR

body2010
JUDGEMENT Heard the learned counsel for the appellants and the learned Counsel for the State. 2. The instant appeal is directed against the judgment of conviction dated 10.7.2002 and order of sentence dated 15.7.2002 respectively passed in S.T. No.225 of 1989 by Shri Rajesh Kumar Dubey, 1st Additional Sessions Judge, Giridih, by which judgment trial Court found all five appellants convicted under Sections 304 Part-1/149 of the Indian Penal Code and sentenced them to undergo R.1. for seven years. Further appellant nos.. 2 and 5 namely Naresh Goswami and Bundo Goswami were separately convicted under Section 324 of the I.P.C. and sentenced to undergo R.1. for one year. All the five appellants were further convicted under Section 148 I. P .C. and sentenced to undergo R.1. for three years. All the sentences were directed to run concurrently. Appellants were also fined Rs.2,000/- each under Section 357 Cr.P.C. 3. It is submitted by learned counsel for the appellants that it will appear from the evidences of the doctor P.W. 9 Dr. B.P. Singh that deceased Somra Manjhi died after one and half months on 31.8.1988 due to septicemia which indicates that his death cannot be related to the injury caused on. 18.7.1988 and as such, conviction of the appellants under Section 304 Part-I read with 149 of the Indian Penal Code is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the State has opposed the same and submitted that injuries were caused on 18.7.1988 and due to the same injury deceased died. 5. After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of fardbeyan given by the informant Sonulal Hembrom, P.W. 2 stating therein that on 18.7.1987 in the morning at 7 A.M. he alongwith his father Somra Hembrom was ploughing their field and besides there Manjhli Manjhiain, Fulmani Hembrom were uprooting the seedlings of the paddy. On that time accused Lutan Goswami, Badri Goswami, Murli Goswami, Naresh Goswami and Bundo Goswami came to the field armed with deadly weapon. Lutan was carrying sword, Badri and Murli carrying bow and arrow, Naresh was carrying sword and Bundo was carrying tangi in their respective hands. The accused persons named above after arriving at the field uttered that the field belongs to them and they will not allow to plough. Lutan was carrying sword, Badri and Murli carrying bow and arrow, Naresh was carrying sword and Bundo was carrying tangi in their respective hands. The accused persons named above after arriving at the field uttered that the field belongs to them and they will not allow to plough. Then, informant's father told them that this plot belongs to him and, therefore, he will plough it. On this Lutan gave blow of sword on the back of the Somra, receiving the blow Somra fell down then Bundo gave blow of tangi. On alarm Kishun Manjhi and Badan Manjhi came there then Naresh and Bundo assaulted them by tangi and sword then the female members of the family namely Manjhli Manjhiain and Fulmani Hembrom came then Badri, Murli and Bundo assaulted them by bow and arrow and tangi respectively. The informant, Sonulal Hembrom when went to save them he was also assaulted. 6. On the basis of the said fardbeyan, police registered a case under Sections 147, 148, 149, 323, 324 and 307 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case under Sections 148, 149, 323, 324, 307 of the Indian Penal Code and Section 302 of. Indian Penal Code added, since, subsequently injured Somra Hembrom died. Since, the case was exclusively triable by the Court of Sessions, after taking cognizance learned Chief Judicial Magistrate committed the case to the Court of Sessions and subsequently, the case was tried by learned 1st Additional Sessions Judge, Giridih, who found the appellants guilty and sentenced them as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as fourteen witnesses: P.W. 1, Badan Manjhi P.W. 2, Sonulal Hembrom P.W. 3, Sonaram Hernbrom P.W. 4, Nunka Hembrom P.W. 5, Manjhli Manjhiain P.W. 6, Fulmani P.W. 7, Kishun Hembrom P.W. 8, Rameshwar Soren P.W. 9, Dr. B.P. Singh P.W. 10, Anwarul Haque P.W. 11, Dr. Shrawan Kumar Kedia P.W. 12, Bhola Ram P.W. 13, Ram Kishore Sharma P.W. 14, Mahendra Prasad Yadav It appears that defence has also examined as many as three witnesses: D.W. 1, Manjhli Manjhiain D.W. 2, Manjhli Manjhiain D.W. 3, Manjhli Manjhiain P.W. 1, Badan Manjhi, stated in Court that when his father alongwith his brother were ploughing the field and besides there he was uprooting the seedlings of the paddy. On that time accused Lutan Goswami, Badri Goswami, Murli Goswami, Naresh Goswami and Bundo Goswami came there. Naresh and Lutan were carrying sword, Bundo was carrying tangi, Badri and Murli carrying bow and arrow. Lutan and Naresh gave blow of sword on the back of his father and Bundo gave blow of tangi over the knee then the witnesses went to save Somra then Badri and Murli assaulted them by tangi and wooden portion of bow. He further stated that his . father died. P.W. 2, Sonulal Hembrom, P.W. 4, Nunka Hembrom, P.W. 5, Manjhli Manjhiain, P.W. 6, Fulmani, P.W. 7, Kishun Hembrom, P.W. 8, Rameshwar Soren supported the prosecution case and submitted that all five accused persons assaulted the deceased as well as witnesses informant and his brother and sister-in-law. P.W. 3, Sonaram Hembrom, is a hearsay witness. P.W. 9, Dr. B.P. Singh, who proved the post mortem report as Ext.-I has stated that he conducted the post mortem examination of the body on 31.7.1988. The victim died due to septicemia. P.W. 10, Anwarul Haque, he proved the material Ext.-Tangi. P.W. 11, Dr. Shrawan Kumar Kedia, who proved injury report of the .deceased Somra Manjhi and other injured persons namely Kishun Manjhi, Phoolmani Hembrom, Manjhli Manjhiain, Badan Manjhi. He also proved the injury report of the accused Lutan Nath Goswami, Naresh Goswami and Badri Nath Goswami. P.W. 12, Bhola Ram, has proved the seizure list of Tangi. P.W. 13, Ram Kishore Sharma, is 1.0. of the case, who has proved the inquest report as Ext.-8. The defence witnesses have also proved the injury report as also F.I.R. lodged by the accused. . 8. Thus, after going through the prosecution case, it appears that it is a case and counter case and there was injury on both sides. Moreover, it is apparent from the evidences of P.W. 9-Doctor that the death of the deceased Somra Manjhi occurred on 31.7.1988 i.e. after one and half months of the alleged occurrence. Since, injury report proved by P.W. 11, Dr. Shrawan Kumar Kedia, that the said deceased Somra Manjhi was examined by him on 18.7.1988. He proved his injury as Ext.-2 and clearly stated at para-10 that the cause of death was septicemia, which was not immediate result of injury caused to him on 18.7.1988. Since, injury report proved by P.W. 11, Dr. Shrawan Kumar Kedia, that the said deceased Somra Manjhi was examined by him on 18.7.1988. He proved his injury as Ext.-2 and clearly stated at para-10 that the cause of death was septicemia, which was not immediate result of injury caused to him on 18.7.1988. In that view of the matter, it appears that due to the fact that deceased could not get proper treatment and due to lack of treatment, deceased died of septicemia. In that view of the matter conviction of the appellants under Sections 304 Part-l/149 of the Indian Penal Code is not maintainable and the same is accordingly set aside. So far as. conviction of the appellants under Section 324 of the Indian Penal Code and Section 148 of the Indian Penal Code are concerned, considering the fact that it is a case and counter case, where injuries are there in both sides and it is a case of land dispute where both parties are claiming right and title over the land, which resulted into the fight between• both sides, in that view of the matter conviction under Sections 324 and 148 of the Indian Penal Code are confirmed but the sentences are reduced to the period of detention already undergone during the investigation and trial alongwith fine of Rs.2,000/- each. The conviction under Section 357 of the Indian Penal Code is also maintained as also their sentence under Section 357 of the Indian Penal Code. 9. With aforesaid alteration in order of sentence, this appeal is allowed in part and judgment of conviction dated 10.7.2002 and order of sentence dated 15.7.2002 respectively passed in S.T. No 225 of 1989 is set aside. Since, the appellants are on bail, they will be released from the bondage of bail bond after payment of fine. If the fine amount is not paid within one month of this judgment then the Trial Court shall issue warrant of arrest against the appellants. If fine money is realised, it will be paid to the victim as per the judgment of the Trial Court.