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2012 DIGILAW 1108 (PAT)

Sukhadeo Chaupal v. State of Bihar

2012-08-09

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Per: Honourable Mr.Justice Shyam Kishore Sharma Both the appellants namely, Sukhadeo Chaupal and Ganuar Chaupal have impugned the judgment of conviction and order of sentence dated 16.09.2005 passed by Additional Sessions Judge, Fast Track Court No.V, Darbhanga in Sessions Trial No. 198 of 2001 holding appellant Ganaur Chaupal guilty under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and fine of Rs.10,000/- and in default in payment of fine to undergo simple imprisonment for one year whereas another appellant Sukhadeo Chaupal after being held guilty under Section 307 of the Indian Penal Code was ordered to undergo rigorous imprisonment for five years and fine of Rs.5,000/- and in default in payment of fine to undergo simple imprisonment for six months. 2. The brief facts which led to culmination of appeal relates to an occurrence dated 05.12.2000. The fardbeyan (Ext.4) of Newat Chaupal (P.W.6) was the basis of the prosecution case. According to the informant Newat Chaupal, on 05.12.2000 in the morning when his wife was at her Darwaza and his daughter-in-law was inside her room, the accused persons namely, Sukhadeo Chaupal, Ganaur Chaupal, Ashok Chaupal and Dinesh Chaupal, all armed with lalthi, danda came and started assaulting his wife. The daughter-in-law intervened but she was also assaulted. Subsequently, informant’s son Ramphal Chaupal came and he was assaulted upon his head by Ganaur Chaupal by means of lathi and he became badly injured due to impact of assault. He fell down after becoming unconscious. Thereafter villagers came and intervened. At the time of giving fardbeyan at 9.00 A.M. at Manigachi police station, the informant’s son Ramji Chaupal was present there. The fardbeyan resulted in formal F.I.R.(Ext.2) of Manigachi P.S. Case No. 0126 of 2000 dated 05.12.2000 under Sections 447, 323,341, 504 and 307/34 of the Indian Penal Code. During investigation, Ramphal Chaupal died as such offence under Section 302 of the Indian Penal Code was added. In course of investigation, statements of witnesses were recorded, injury report (Ext.1) and the post mortem report (Ext.3) were obtained and after completion of investigation, chargesheet was submitted. During investigation, Ramphal Chaupal died as such offence under Section 302 of the Indian Penal Code was added. In course of investigation, statements of witnesses were recorded, injury report (Ext.1) and the post mortem report (Ext.3) were obtained and after completion of investigation, chargesheet was submitted. Thereafter the case was committed to the court of sessions where charge under Section 307/34 of the Indian Penal Code was framed against these two appellants and accused Ashok Chaupal and Dinesh Chaupal, all the four accused, and charge under Section 302 of the Indian Penal Code was framed against accused Ganaur Chaupal for intentionally or knowingly causing murder of Ramphal Chaupal and charges were explained to all the accused persons to which they pleaded innocence. Hence trial proceeded. In course of trial, accused Ashok Chaupal and Dinesh Chaupal were found juvenile, hence their trial separated. The remaining two accused persons namely, the appellants, faced trial and after trial both of them were held guilty, so they were convicted and sentenced, as stated above. Hence this appeal. 3. In order to substantiate its case, the prosecution has examined altogether ten witnesses. They are: P.W.1 Dr.Ram Chandra Safi who examined the injured and prepared injury report. P.W.2 Shankar Rai, P.W.3 Kishori Devi, P.W.4 Surendra Paswan, P.W.5 Ramjee Chaupal who is brother of the informant, P.W.6 Newat Chaupal who is the informant of the case, P.W.7 Indu Devi who is wife of the deceased Ramphal Chaupal, P.W.8 Ram Pari Devi who is wife of the informant, P.W.9 Dr.Praful Kumar Das who held post mortem over the dead body of the deceased and P.W.10 Satyanarayan Kunwar. 4. The defence has examined one Ganga Prasad Jha as D.W.1. 5. The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove be charges against the accused persons beyond the shadow of all reasonable doubts and convicted and sentenced them, as stated above. 6. This Court is required to reappraise the evidences on record and to see as to whether there were materials available on the record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 7. 6. This Court is required to reappraise the evidences on record and to see as to whether there were materials available on the record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 7. First of all, we would like to discuss the evidence of P.W.1 Dr.Ram Chandra Safi who examined the injured Ramphal Chaupal on 05.12.2000 and found following injuries: (i) Lacerated wound over right side of scalp measuring about 2½”x1/2”x1/4”. (ii) Two abrasions on front of right forearm before wrist measuring ¼”x1/4”. According to this witness, both the above injuries were on account of assault by hard and blunt substance and both were simple in nature. About injury no.(i) the doctor has opined that it could be caused by fall also. The same person whose injuries were found simple has died. 8. P.W.9 is Dr.Prafula Kumar Das who on the next day i.e. 06.12.2000 held post mortem over the dead body of the deceased and found following anti mortem injury: “Right eye was found blacken. One stitched wound measuring 1 ½” in length was found on the right side of the head. On removal of stitch, margins were irregular and ragged with blood clots over the surface.” The doctor has opined that anti mortem injury was grievous in nature and dangerous for life in ordinary course of nature and were caused by hard and blunt object. The death was due to concussion, haemorrhage, compressions and shock. Time elapsed since death was within 8 to 16 hours from the time of post mortem examination. The medical examination has proved that Ramphal Chaupal has died on account of the injury caused by hard and blunt substance. 9. Once the factum of killing is proved, then the prosecution is required to prove the role of the accused with the offence. 10. The most important witness of the occurrence is P.W.6 Newat Chaupal who has lodged the fardbeyan. This witness has described the occurrence before the court and has stated that on Tuesday at 6.00 A.M. his wife and the wife of Sukhadeo had quarreled. Accused Ganaur Chaupal thereafter came and assaulted his son Ramphal on his head. As a result of that assault, his head was broken and blood started coming out. On account of impact of that assault, Ramphal Chaupal lost his consciousness. Accused Ganaur Chaupal thereafter came and assaulted his son Ramphal on his head. As a result of that assault, his head was broken and blood started coming out. On account of impact of that assault, Ramphal Chaupal lost his consciousness. The informant and others went to rescue but they were also assaulted. All were admitted in Manigachi hospital but considering the physical status of Ramphal Chaupal he was referred to Darbhanga Hospital where he succumbed to his injuries. 11. So far as manner of assault is concerned, the informant has been supported almost verbatim by P.Ws.2, 5, 7 and 8. All have stated that assault was caused by Ganaur Chaupal on the head of Ramphal Chaupal and while he was being treated at Darbhanga he died. If the allegation of assault and evidences of witnesses examined are taken together so far as the initial part of allegation is concerned, it appears that due to impact of assault by Ganaur Chaupal, Ramphal Chaupal had died. 12. Regarding assault upon others namely, P.Ws.7 (Indu Devi) and 8 (Ram Pari Devi), it was stated in the fardbeyan and they were also assaulted. Their initial evidence was that they were also assaulted and on account of which they were injured. There is no medical corroboration of the evidence that what was the injury which was caused by P.Ws.7 and 8. This assault is attributed against accused Sukhadeo Chaupal and it has been stated that he was also the assailant. On account of absence of any corroborated material such bald statement which has been brought on record cannot be accepted and it can be held that the prosecution has not succeeded in proving the charge that on the date of occurrence Sukhadeo Chaupal caused any overt act to P.Ws. 7 and 8 and there is no evidence that accused Sukhadeo Chaupal has caused any overt act with regard to manner of assault to the victim/deceased. So no evidence at all has come against Sukhadeo Chaupal and his case remains completely on different footing from the case of Ganaur Chaupal. In view of lack of complete evidence against appellant Sukhadeo Chaupal, it can be held that so far as the conviction and sentence of Sukhadeo Chaupal is concerned, no evidence has been brought on record and the prosecution has failed to prove the charge against him. In view of lack of complete evidence against appellant Sukhadeo Chaupal, it can be held that so far as the conviction and sentence of Sukhadeo Chaupal is concerned, no evidence has been brought on record and the prosecution has failed to prove the charge against him. Accordingly, the conviction and sentence of appellant Sukhdeo Chaupal is set aside and the appeal on his behalf is allowed. 13. So far as appellant Ganaur Chaupal is concerned, the initial version which has come with regard to manner of assault is that he had caused injury upon the head of Ramphal Chaupal, as a result of which he fell down and lost his consciousness. The victim Ramphal Chaupal was initially taken to P.W.1 Dr. Ram Chandra Safi where he was examined and as he was serious he was referred to Darbhanga but he died there and P.W.9 Dr. Praful Kumar Das held post mortem over the dead body of the deceased who has stated that on account of the injury received by him he died. The consistent evidence is that only Ganaur Chaupal was the author of that injury. The evidence of the witnesses which have been brought on record is consistent with regard to manner of assault that Ramphal Chaupal was assaulted on his head with lathi by Ganaur Chaupal and that assault ultimately proved fatal. 14. The evidence brought on record that the assault on Ramphal Chaupal has subsequently led to his death is conclusive and the prosecution has succeeded in proving the act of Ganaur Chaupal which caused injury and subsequently death of Ramphal Chaupal. For proving the charge under Section 302 of the Indian Penal Code it is not only required that some person has died on account of assault of particular person. For proving the charge of murder it has to be established that the accused who caused several acts which led to death was having intention or knowledge at all to cause death. This prime consideration has to be taken into account for holding a person guilty under Section 302 of the Indian Penal Code. When the act of the accused comes within any of the five Exceptions specified in Section 300 of the Indian Penal Code, then the offence committed is not murder but culpable homicide not amounting to murder. This prime consideration has to be taken into account for holding a person guilty under Section 302 of the Indian Penal Code. When the act of the accused comes within any of the five Exceptions specified in Section 300 of the Indian Penal Code, then the offence committed is not murder but culpable homicide not amounting to murder. If the evidence brought on record is analysed it can be said that the impact of assault of Ganaur Chaupal was not to the extent from which any inference could have been drawn that Ganaur Chaupal was having any intention to cause death. The injury caused to the victim was simple in nature which shows that the evidence has come that Ganaur Chaupal had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause death. When the accused gave one blow on the head by means of lathi on the deceased, the intention to cause death cannot be imputed to him but it would be reasonable to infer that he had knowledge that any injury on the vital part of the body of the deceased would cause death. Therefore, the evidence against Ganaur Chaupal cannot be said to be sufficient for holding him guilty under Section 302 of the Indian Penal Code but the evidence is that the act of Ganaur Chaupal has led to death of Ramphal Chaupal. Both Sections 302 and 304 of the Indian Penal Code relate to murder. Section 304 of the Indian Penal Code does not create any specific offence rather it provides only for punishment of culpable homicide not amounting to murder. The difference between Section 302 and 304 is with regard to quantum of punishment. The evidences brought on record are only to that extent that no inference can be drawn that the accused had intention at all to cause death. If the prosecution succeeds in proving that there was intention to cause such bodily injury as is likely to cause death, the offence committed comes under the purview of Section 304 part I of the Indian Penal Code, otherwise it would come under Section 304 Part II of the Indian Penal Code. If the prosecution succeeds in proving that there was intention to cause such bodily injury as is likely to cause death, the offence committed comes under the purview of Section 304 part I of the Indian Penal Code, otherwise it would come under Section 304 Part II of the Indian Penal Code. The evidence brought on record is to the extent that it can be said that appellant Ganaur Chaupal is not liable to be convicted for the offence under Section 302 of the Indian Penal Code and consequently his sentence has to be modified to Section 304 Part II of the Indian Penal Code. Thus, considering all the above, we are of the view, the conviction of the appellant Ganaur Chaupal under Section 302 of the Indian Penal Code is required to be altered into Section 304 Part II of the Indian Penal Code and it is accordingly altered. 15. So far as awarding sentence is concerned, it has come on the record that during trial the appellant Ganaur Chaupal has remained in custody since 22.12.2000 to 03.06.2002 and after the judgment is passed he is in custody for near about seven years. Thus, he has remained in custody for more than 8 years. Considering all the facts and circumstances of the case, we are of the view that the period already undergone by him in custody during trial and appeal would be sufficient for the ends of justice. Accordingly, the sentence of appellant Ganaur Chaupal is reduced to the period already undergone by him in custody. 16. In the result, the appeal on behalf of appellant no.1 Sukhadeo Chaupal is allowed. His conviction and sentence is set aside and he is acquitted of the charge. He is also discharged from the liability of his bail bond. The appeal on behalf of appellant no.2 Ganaur Chaupal is dismissed with modification in conviction and sentence, as stated above. As his sentence has been reduced to the period already undergone by him in custody, he is directed to be released forthwith if not wanted in any other case. Appeal of app. I allowed. Appeal of app. II dismissed.