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2011 DIGILAW 820 (JHR)

Amarjeet Singh @ Ambe v. State of Jharkhand

2011-09-01

P.P.BHATT, R.K.MERATHIA

body2011
JUDGMENT K.K. Merathia. J.-This appeal is directed against the judgment of conviction and order of sentence dated 11.7.2002. passed by learned Additional District & Sessions Judge, Fast Track Court No. II. Jamshedpur, East Singhbhum. in Sessions Trial No. 211 of 2000, convicting the appellant Nos. 1 to 3 under Section 302/34 of IPC and appellant No. 4 under Sections 302/109 of the IPC and sentencing them to undergo imprisonment for life. 2. The prosecution case in brief is that the informant-Paramjeet Singh @ Lucky (PW 9) gave a fardbeyan (Ext-3) before the police on 8.11.1999 at 6 p.m. in Tata Medical Hospital (TMH), Jamshedpur to the effect that at about 3.30 p.m. he and his elder brother-Satnam Singh (deceased) were sitting along with others on the "chabutra" of the chakki mill situated behind Kali Puja Panda! at Thlsi Chowk of No. 10 basti. In the meantime, the appellants residents of the same basti, came with swords in their hands and started assaulting the deceased. Appellant Nos. 1, 2 and 3 assaulted by swords on the face, head and other parts of the body repeatedly, due to which, the deceased fell down on the ground in precarious condition. Appellant No. 4 was instigating his sons (appellant Nos. 1, 2 and 3) not to leave the deceased alive. The deceased had fallen down. Even then he was assaulted with swords. Only when the appellants felt that deceased had died, they fled away. The mother of PW 9-namely Gurmeet Kaur (PW 1) and Bhabhi-Reshma Kaur (PW 6) also reached there and saw the occurrence. Other persons of the neighborhood had also seen the occurrence. The informant along with others took the deceased to T.M.H. Hospital for treatment, where he died just be fore lodging the FIR. It was further alleged that the reason behind the occurrence was a quarrel between the deceased and the appellants in the last night and therefore the appellants with common intention have killed the deceased. 3. Charges were framed under Sections 109 & 302/34 IPC against appellant No. 4-Gumam Singh and under Section 302/34 against appellant Nos. 1.2 and 3. to which they pleaded not guilty and claimed to be tried. Their defence was that they are innocent and have been falsely implicated in the case. 4. The prosecution has examined 14 witnesses. Certain documents have also been exhibited. The Material Ext. 1.2 and 3. to which they pleaded not guilty and claimed to be tried. Their defence was that they are innocent and have been falsely implicated in the case. 4. The prosecution has examined 14 witnesses. Certain documents have also been exhibited. The Material Ext. (two swords) was also produced before the trial Court. 5. Learned counsel appearing for the appellants assailed the impugned judgment on various grounds. He submitted that the prosecution has not proved the motive; the place of occurrence has also not been clearly established; PWs 1. and 6 claimed to be eye-witnesses but they are not independent witnesses were available but only the interested witnesses have been examined; the prosecution has not explained the abrasions found by the doctor in the post-mortem report; the earliest report about the alleged occurrence has been suppressed by the prosecution; FIR was lodged before the Officer-in-charge Sidhgora Police Station in Tata Main Hospital (TMH for short) whereas the police camp was available at the T.M.H. It was lastly submitted that at best the appellants could be convicted under Section 304. Part II. IPC. 6. On the other hand learned counsel for the State supported the impugned judgment. 7. The submissions made on behalf of the appellants are not acceptable for the following reasons. 8. PW 1 Gurmit Kaur is the mother of the deceased. She inter alia said that when she along with her daughter in law (PW 6-Reshma Kaur) were in their house they heard some "hulla" outside and heard Paramjeet Singh crying "bachao bachao"; they rushed and saw that the appellant Nos. 1, 2 and 3 were assaulting the deceased with swords and appellant No. 4 was instigating them to kill. In cross-examination. she said that a Kali Puja Pandal was near to her house at about half kilometer. It appears that an attempt was made to confuse this witness about the place of occurrence. However, she said that the occurrence took place at the 'chakki' besides Kali Puja Pandal. Her son Paramjeet Singh (PW 9) was trying to save the deceased when sword blows were given. Other persons were also present but no body intervened. PW 9 took the deceased to hospital. She was weeping and was not her in full senses. 9. PW 2 Ganesh Kumar is resident of the same basti. He inter alia said that he saw the occurrence, in which appellant Nos.1. Other persons were also present but no body intervened. PW 9 took the deceased to hospital. She was weeping and was not her in full senses. 9. PW 2 Ganesh Kumar is resident of the same basti. He inter alia said that he saw the occurrence, in which appellant Nos.1. 2 and 3 were assaulting the deceased by swords and appellant No. 4 was instigating them and that when people assembled, they fled away throwing swords. At the time of occurrence, PWs 1, 6 and 9 were present. In cross-examination, he said that it was seen from the place of occurrence that PW 1 was coming from her house, He also tried to save the deceased. First assault by sword was done suddenly. The appellants threatened this witness of dire consequences if he intervened. Harjeet Singh (P.W 3) and others took the deceased to the hospital. The occurrence took place near Kali Puja Pandal. This witness admitted that he was in jail thrice in connection with arms act case; one 'marpu' case and one 'daru wala' case. Police seized sword from the place of occurrence. 10. PW 3 Harjeet Singh is inquest witness. He also said that on "hulla" he came outside of his house and saw that there was crowd and 'jhagda' was going on. He was not in a position to say as to who assaulted to whom and by which weapon, but sword blows were being made causing injuries to the deceased who died in the hospital. 11. PW 4 is Karnail Singh. He inter alia said that on the date of occurrence he went to meet Surjeet Singh in 10 No. basti On "hulla" when he reached near the place of occurrence, he saw that three persons were assaulting the deceased by swords and one lady and one boy were crying not to assault. Appellant No. 4 was instigating the three persons to assault. Appellant Nos. 1 to 3 assaulted the deceased by swords due to which he suatained injuries and died in the 'Hospital after about 2-3 hours. In cross-examination he said that he lives at about 5 K.M. from the place of occurrence. The deceased was his nephew. He said that there was a "chakki" near the place of occurrence. There was blood on the stairs. In cross-examination he said that he lives at about 5 K.M. from the place of occurrence. The deceased was his nephew. He said that there was a "chakki" near the place of occurrence. There was blood on the stairs. The occurrence took place at about kilometer from Kali Puja Pandal PWs 1 and 9 were already there and were crying. 12. PW 5 Billu Agrawal is a hearsay witness, about the occurrence. 13. PW 6-Reshma Kaur is the wife of the deceased. She said that when she with PW 1 were in their house, on 'hulla' of informant, they rushed running to the, place of occurrence. She saw the appellants 1 to 3 assaulting her husband (deceased) by sword. Appellant No. 4 was instigating them. She inter alia said that one of the appellants fled throwing his sword and other two fled with swords. In cross-examination, she said that the place of occurrence is near Kali Puja Pandal. PW 4 Karnail Singh is her maternal uncle and he was also present at the place of occurrence. 14. PW 7 Surjeet Singh is resident of the same basti. He said that on 'hulla', he came out of his house, and then saw that the appellants 1 to 3 were assaulting the deceased by sword. He inter alia said that P.Ws 1, 6 and 9 were also there and were crying not to assault the deceased. In cross-examination, he said that the deceased was his cousin. They live in the same house/holding number, with partition. At the time of assault, the deceased could not run away and he was killed within 15-20 ft. from atta chhaki. The deceased fell down near Aina Godown while running. There he was again assaulted by sword. There was blood near Godown of Aina Press. There was also blood near the stairs in front of the chakki. From there up to Aina Press, blood was spilled, up to which the deceased could run. The sword blows were given at the chest and there were injuries on the hands also. 15. PW 8 Raj Kumar Sharma is a hearsay witness to the occurrence. 16. PW 9 Paramjeet Singh is the informant. He fully supported the FIR.• He inter alia said that on 8.11.1999 at about 3.30. he with his elder brother (deceased) and others were sitting on the chabutra of chaki. 15. PW 8 Raj Kumar Sharma is a hearsay witness to the occurrence. 16. PW 9 Paramjeet Singh is the informant. He fully supported the FIR.• He inter alia said that on 8.11.1999 at about 3.30. he with his elder brother (deceased) and others were sitting on the chabutra of chaki. The ata chaki is near Tulsi Chowk in 10 No. basti. The appellant Nos. 1. 2 and 3 came. The appellant Nos. 1. 2 and 3 came with swords in their hands. Appellant No. 4 was instigating them to kill. Appellant Nos. 1.2 and 3 inflicted sword injuries on the body of the deceased. On his alarm. P.Ws. 1. 4. 6. 7 and others reached at the place of occurrence. This witness further said that on receiving injury the deceased started running and he fell in front of Aina Press. where again he was assaulted. When people assembled appellants fled away. The deceased was taken to T.M.H. where he died after about 1 and hours. The reason for incident was that in the previous night there was some quarrel between the appellants and the deceased. The deceased was a convoy driver. In his cross-examination he said that out of several other persons only Ganesh Kumar (PW 2) is a witness in this case. There was no sword in hand of appellant No. 4-Gurnam Singh. 17. PW 10-Parsuram Paswan is the Investigating Officer. He described the place of occurrence. He found blood at the place of occurrence. He also found two sharp edged swords which have been marked as material Exts. 1 and 1/1. On the swords there was no blood stains and there was rust. This witness also said that the house of the deceased is about 100 yards from the place of occurrence. He has marked a portion of the case diary as Ext. A. In his cross-examination he said that he did not seize blood stained soil. 18. PW 11 Akhilesh Kumar is the Doctor who conducted post-mortem. He found the following injuries. Abrasions on knee leg. arm and forearm etc. (He proved the post-mortem report Ext-7). He found 14 incised wounds on vital parts of the body such as face and head including three injuries over palm thumb and fingers. Doctor opined that the said injuries were ante-mortem. He found the following injuries. Abrasions on knee leg. arm and forearm etc. (He proved the post-mortem report Ext-7). He found 14 incised wounds on vital parts of the body such as face and head including three injuries over palm thumb and fingers. Doctor opined that the said injuries were ante-mortem. The abrasions were caused by hard and blunt substance and incised wounds were caused by heavy sharp cutting weapons. The death was due to head and facial injuries. 19. PWs 12 and 13-namely S. Shankar Ray and Kamaljeet Singh are witnesses to the seizure of two swords. 20. PW 14-Rakesh Kumar is witness to the Fardbeyan.. 21. Two swords were marked as material exhibits 1 and 1/1. The Fardbeyan is Ext-3. Formal FIR is Ext-4. Inquest Report is Ext-5. Seizure list is Ext-6 and the Post-mortem Report is Ext-7 along with signatures of the witnesses thereon. 22. The defence exhibited the information sent to the police by the Hospital (Ext-A). 23. Motive-:-The prosecution has proved that the motive behind the occurrence was some quarrel between the deceased and the appellants in the previous night. Moreover as the eye-witnesses have proved the prosecution case the question of motive takes back stage. 24. Eye Witnesses.- The relative eyewitnesses P.Ws. 1. 4. 6. 7 and 9 cannot be brushed aside only because they are related to the deceased. They have stood the test of cross-examination and have fully supported the prosecution case. Apart from them. PW 2-Ganesh Kumar is an independent eye-witness. He also proved presence of other eye-witnesses. It appears that on being asked he said that he was in jail thrice in connection with three cases under Arms Act. in a case of 'marpit' and in a case of liquor but for that his evidence cannot be discarded. PW 3 though admitted that he is a relative of the deceased but he did not project himself as eye-witness. If the prosecution wanted it could project him also as an eye-witness. About PW 4-Karnail Singh it is said that he lives at a far away place and he became chance witness only because he is a relative of the deceased but this witness said that he came to meet PW 7 on 8.11.1999 in 10 No. basti He heard 'hulla' near Tulsi Chowk where he found that appellant Nos. About PW 4-Karnail Singh it is said that he lives at a far away place and he became chance witness only because he is a relative of the deceased but this witness said that he came to meet PW 7 on 8.11.1999 in 10 No. basti He heard 'hulla' near Tulsi Chowk where he found that appellant Nos. 1.2 and 3 were assaulting the deceased by sword who ultimately died after 2 1/2-3 hours in hospital. It was contended that PWs 1 & 6 could not hear the hulla/cry and could not be eye-witness as PW 1 said that the distance between her house and the place of occurrence was about K.M. PW 1 is a rustic house wife. The Investigating Officer said that such distance was about 100 yards. PW 2 said that from the place of occurrence it was visible that PW 1 was coming from her house. PWs 1 & 6 said that they came running at the place of occurrence. 25. Place of occurrence-The witnesses have consistently proved the place of occurrence. It may be noted here that PW 7 stated in his evidence that the deceased while being inflicted by sword injuries could not run and he fell within 15-20 ft. and blood spilled at the places the deceased was assaulted and he tried to run and fell. PW 9 also said that on receiving injuries the deceased started running and fell in front of Aina Press. Thus it appears that the place of occurrence is spread between the places where the deceased was assaulted he ran for his life he fell on the ground; and where he was again assaulted. This position also find support from the post-mortem report in which abrasions on knee leg. arms and fore arms and three incised injuries on palm thumb and fingers were found which the deceased must have received while trying to run and save himself. Thus it is not possible to accept the contention of the appellants that the place of occurrence has not been proved by the prosecution. 26. arms and fore arms and three incised injuries on palm thumb and fingers were found which the deceased must have received while trying to run and save himself. Thus it is not possible to accept the contention of the appellants that the place of occurrence has not been proved by the prosecution. 26. On the first information received by the police-It appears from paragraph 3 of the case diary that at about 4 p.m. on 8.11.1999, the telephonic information was received that some untoward incident had taken place in 10 No. basti near Kali Puja Pa.n.da1 at Tulsi Chwok, which was registered as Station Diary No. 186 dated 8.11.1999 and the police proceeded towards the place of occurrence. Such vague information on telephone cannot be treated to be first information and it cannot be said that the prosecution has suppressed the first information. It further appears that on such information, police reached at the place of occurrence and then at TMH and therefore the fardbeyan was recorded before the officer-in-charge at 'Camp TMH'. It further appears that immediately on the death of injured the FIR was lodged. 27. The submissions for converting the conviction under Section 304, Part II, IPC is also not acceptable. There was some quarrel in the previous night of the occurrence, and not at the time of occurrence. The appellants came prepared with swords. They assaulted the deceased indiscriminately by 'swords causing about 13 incised injuries on him. The incised injuries on palm, thumb and fingers indicate that the deceased tried to save himself. The abrasions corroborate the evidence that he tried to run for life and fell. On considering the entire material, it is not possible to convert the conviction into Section 304, Part II. IPC, as this case does not fall within Exception 4 of Section 300, IPC. 28. It may be noted here that the Doctor found 5 abrasions caused by hard & blunt substance and 13 incised injuries caused by heavy sharp cutting weapon, on the body of the deceased which includes about 4 injuries on head and 5 on face. Such injuries could not be caused by one accused. Otherwise also Section 34, IPC is attracted in this case. 29. Thus the prosecution has fully proved it's case against the appellants. There is no reason for false implication. Such injuries could not be caused by one accused. Otherwise also Section 34, IPC is attracted in this case. 29. Thus the prosecution has fully proved it's case against the appellants. There is no reason for false implication. Some minor contradictions were pointed out, but on those, the prosecution case cannot be brushed aside. (Learned counsel for the appellants did not press this appeal on behalf of appellant No.4, saying that he died during pendency of the appeal.) 30. Learned trial Court, did not impose fine. Learned counsel for the appellants was noticed and heard on this aspect. 31. In the result this appeal is dismissed. However, a token fine of Rs.1000 is also imposed on appellants 1, 2 and 3 and in default they will undergo simple imprisonment of one month. P.P. Bhatt,J.-I agree. Appeal dismissed.