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2012 DIGILAW 1421 (JHR)

Bajrangi Tanti v. State of Jharkhand

2012-09-19

D.N.PATEL, PRASHANT KUMAR

body2012
JUDGMENT Per D.N. Patel, J.- The present appeal has been preferred initially by two appellants, namely Yodhan Tanti (original accused No.1) (appellant No.1) and Bajrangi Tanti (original accused No.3) (appellant No. 2) against the judgment and order of conviction and sentence, both dated 25th May, 1991, passed by the 1st Additional Sessions Judge, Godda in Sessions Trial No.4 of 1982 (159 of 1988), whereby the aforesaid appellants have been convicted under Section 302, IPC and were sentenced to undergo imprisonment for life. Later on, appeal with respect to appellant No.1 Yodhan Tanti (original accused No.1) abated as he died during the pendency of the present appeal and therefore, now Bajrangi Tanti (original accused No.3) is the sole appellant of the present case. 2. Prosecution case in brief is that the informant, namely Bishun Tanti, who is the deceased, on being informed that the accused persons have stealthily harvested his paddy, went to inspect his fields on 4th November, 1980 and when he was returning, at about 9 p.m. on the very same day, the appellant accused, along with other co-accused, attacked him. The informant was injured and he was taken to the Meharma - State Dispensary, where his fardbayan was recorded on 4th November, 1980, at about 4 p.m. and on perusal of the same. it appears that Yodhan Tanti original accused No. 1 had inflicted injuries on the right hand finger and left shoulder of the informant by gadasa and thereafter. Bajrangi Tanti (original accused No.3), i.e. the sole remaining appellant of the present appeal, inflicted injuries by sword. It is also narrated in the FIR that as the informant fell down, rest of the accused persons, including Bajrarigi Tanti, i.e. the sole remaining appellant of this case, inflicted injuries on the person of the informant. On perusal of the FIR, it appears that sons of the informant, namely Lalan Tanti (PW 2) as well as Baban Tanti (PW 7) and his nephew Chulhai Tanti (PW 5), have allegedly sustained injuries at the hands of appellant accused and other co-accused. The informant, after initially being treated by Dr. Bal Govind Prasad Sinha (PW 9) at Meharma State Dispensary, was referred to Bhagalpur Medical Hospital, where he was admitted and remained under treatment for several days. There was infection in his wounds and he expired after few days in the same hospital. The informant, after initially being treated by Dr. Bal Govind Prasad Sinha (PW 9) at Meharma State Dispensary, was referred to Bhagalpur Medical Hospital, where he was admitted and remained under treatment for several days. There was infection in his wounds and he expired after few days in the same hospital. Post-mortem was conducted on 18th November, 1980 by Dr. S.K. Rai Chowdhary (PW 10). 3. After the offence was investigated, charge-sheet was filed and the case was committed to the Court of Sessions and on the basis of the evidences on record, original accused No.1 and original accused No. 3 (sole remaining appellant of the present case) have been convicted for the offence punishable under Section 302, IPC and were sentenced to undergo imprisonment for life, whereas original accused Nos.2, 4, 5 and 6 have been acquitted from the charges on being given benefit of doubt. Against this order of conviction and sentence, dated 25th May, 1991, passed by the 1st Additional Sessions Judge, Godda, the present appeal has been preferred. 4. We have heard the counsel appearing on behalf of the sole remaining appellant, who has vehemently submitted that learned trial Court, while passing the judgment and order of conviction and sentence has not properly appreciated the major omissions. contradictions and improvements made by the prosecution witnesses, hence, the same deserve to be set aside. It is also vehemently submitted by the counsel for the appellant that as per First Information Report (Ext. 1), Bajrangi Tanti (sole appellant of the present case), has inflicted sword injuries upon the deceased, but there are no injuries, as per the medical evidence given by Dr. S.K. Rai Chowdhary (PW 10) (who conducted post- mortem examination on the body of the deceased), caused by sword. This aspect of the matter has also not been appreciated by the learned trial Court. Moreover, as per evidences of the prosecution witnesses, especially of Dr. S.K. Rai Chowdhary (PW 10) (who conducted post- mortem examination on the body of the deceased), caused by sword. This aspect of the matter has also not been appreciated by the learned trial Court. Moreover, as per evidences of the prosecution witnesses, especially of Dr. Bal Govind Prasad Sinha (PW-9), who has examined Chulhai Tanti (PW 5), who is the injured eye-witness as per prosecution, injuries sustained by PW 5 are simple in nature and could have been caused by hard and blunt substance and thus, the very basis of the prosecution case that Bajrangi Tanti who is the sole left out appellant of the present appeal, has used sword to cause the assault is not correct at all and the so-called eye-witnesses of the prosecution, who are PW 2, PW 3 and PW 5 and PW 7 are not the eye-witnesses at all because no injury has been sustained by any of these injured eye-witnesses, which might have been caused by a sword. This aspect of the matter has also not been properly appreciated by the learned trial Court. It is further submitted by the counsel for the appellant that prosecution has proved the injury of PW 5 only. No medical certificate has been brought on record about the injuries sustained by PW 2 and by PW 7. Thus, they are not injured eye-witnesses at all. Neither any doctor has been examined on this point nor any medical certificate supporting the injuries sustained by PW 2 and PW 7 have been brought on record. Moreover, there is no charge framed against the sole left out appellant regarding the injuries caused by him upon the person of injured eye-witnesses. Thus, on perusal of the evidence of PW 10, it appears that there was no injury upon the body of the deceased, which has been caused by sword. PW 10 has also stated that the injuries were not sufficient in ordinary course of nature to cause the death of the deceased. There was infection in the wounds. The deceased died after several days of the assault while undergoing treatment in the hospital and the Doctor (PW 10), who conducted postmortem examination on the body of the deceased, has stated categorically that the injuries sustained by the deceased could have been caused by 'gadasa' and not by sword. There was infection in the wounds. The deceased died after several days of the assault while undergoing treatment in the hospital and the Doctor (PW 10), who conducted postmortem examination on the body of the deceased, has stated categorically that the injuries sustained by the deceased could have been caused by 'gadasa' and not by sword. Thus, the present appellant, who is the sole remaining appellant of the present case has neither caused any injury upon the person of the deceased nor upon the person of any injured eye-witnesses and his case is at a far better footing than that of other accused persons who had been acquitted according the benefit of doubt. In fact, prosecution has failed to prove beyond reasonable doubt that the present appellant, namely Bajrangi Tanti (original accused No.3) has accused the murder of the deceased. This aspect of the matter has not been properly appreciated by the learned trial Court and hence the judgment and order of conviction of the learned trial Court deserves to be quashed and set aside. 5. Learned A.P.P. appearing on behalf of the State vehemently submitted that the whole case of the prosecution is based upon several eye-witnesses, who has sustained injuries. As per the allegations made by the informant in the FIR, the accused persons. armed with deadly weapons, attacked and caused injuries upon the person of the informant as well as upon Lalan Tanti PW 2, Chulhai Tanti (PW 5) and Baban Tanti (PW 7). The informant was so much injured that he was referred to Meharma State Dispensary, Initially, Dr. Bal Govind Prasad Sinha (PW 9) examined the informant and has issued certificate (Ext. 4) and the informant was referred to Bhagalpur Medical Hospital, where he remained under treatment for few days before he expired and his post-mortem examination was conducted on 18th November, 1980 by Dr. S.K. Rai Chowdhary (PW 10). Learned APP has also pointed out the deposition of PWs 2, 3, 5 and 7 and submitted that these witnesses have seen the whole incident and on the basis of these eye-witnesses the learned trial Court has convicted Yodhan Tanti (original accused No.1) and Bajrangi Tanti (original accused No. 3 and the sole remaining appellant of the present appeal). 6. Learned APP has also pointed out the deposition of PWs 2, 3, 5 and 7 and submitted that these witnesses have seen the whole incident and on the basis of these eye-witnesses the learned trial Court has convicted Yodhan Tanti (original accused No.1) and Bajrangi Tanti (original accused No. 3 and the sole remaining appellant of the present appeal). 6. Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that the whole incident has taken place on 4th November, 1980 at about 9 a.m. The injured Bishun Tanti, who was the informant of the case, was taken to Meharma State Dispensary, where he was examined by Dr. Bal Govind Prasad Sinha (PW 9) and his fardbeyan was recorded. On perusal of the FIR, which is the immediate statement of the injured informant, it appears that in total six accused persons caused assault upon the informant as well as upon his sons Lalan Tanti, Baban Tanti and his nephew Chulhai Tanti, who were examined as PWs 2, 7 and 5 respectively, Bishun Tanti was thereafter, referred to Bhagalpur Medical Hospital, where he was admitted as an indoor patient and after undergoing treatment for several days he expired there and his post-mortem was carried out by PW 10 on 18th November, 1980. 7. As per the FIR (Ext. 1), which was proved by Rajendra Singh (PW 1), who is police witness; it appears that there is allegation against Yodhan Tanti (original accused No.1) that he has inflicted injuries on the right hand finger as well as on the left shoulder of the informant by gadasa. Due to these two injuries, informant fell down and then rest of the accused persons inflicted injuries upon the informant and Bajrangi Tanti (original accrued No.3), who is the sole remaining appellant of the present case, inflicted sword injuries upon the persons of the informant. 8. On perusal of the deposition of PWs 2, 5 and 7, it is apparent that Yodhan Tanti has caused injuries upon the person of the informant and thereafter, rest of the accused persons have also inflicted injuries upon the informant. 8. On perusal of the deposition of PWs 2, 5 and 7, it is apparent that Yodhan Tanti has caused injuries upon the person of the informant and thereafter, rest of the accused persons have also inflicted injuries upon the informant. There are in all six accused persons, out of which Yodhan Tanti (original accused No.1) and Bajrangi Tanti (original accused No.3) who is the sole remaining appellant of the present case, had been convicted under Section 302, IPC, whereas rest of the accused persons have been acquitted by given benefit of doubt. 9. We have also perused in detail the deposition given by PW 9 and PW 10. Dr. Bal Govind Prasad Sinha (PW 9), has initially 'treated the informant at Meharma State Dispensary and has also issued injury certificate (Ext. 4) to the informant and looking to the nature of injuries, he was referred to Bhagalpur Medical Hospital. On perusal of the evidence of PW 9, it appears that he had also examined Chulhai Tanti (PW 5) and as per medical evidence given by PW 9, PW 5 has sustained two injuries which were simple in nature and could have been caused by hard and blunt substance. Now, as per the evidences of prosecution witnesses and fardbeyan of the informant, who expired later on, the present sole remaining appellant, namely Bajrangi Tanti had assaulted the informant-deceased by sword. However, there is no sword injury upon Chulhai Tanti (PW 5) as per medical evidence of PW 9 and Dr. S.K. Chowdhary (PW 10) has also stated that injuries sustained by the deceased might have been caused by 'gadasa'. This aspect of the matter has not been properly appreciated by the learned trial Court and therefore, judgment and order of conviction and sentence is, hereby, quashed and set aside. 10. It further appears from the evidences on record that prosecution has failed to prove any injury upon the so called injured eye-witnesses with the help of the medical evidence. There is no medical certificate regarding injuries sustained by Lalan Tanti (PW2) and Baban Tanti (PW 7), who are projected as injured eye-witnesses by the prosecution. Further, prosecution has not proved any injury upon these two witnesses. This aspect of the matter has also not been properly appreciated by the learned trial Court. There is no medical certificate regarding injuries sustained by Lalan Tanti (PW2) and Baban Tanti (PW 7), who are projected as injured eye-witnesses by the prosecution. Further, prosecution has not proved any injury upon these two witnesses. This aspect of the matter has also not been properly appreciated by the learned trial Court. Moreover, on perusal of the charges framed by the learned trial Court, which is on record, there is no charge against the present appellant Bajrangi Tanti with respect to injuries inflicted upon the injured eye-witnesses. Thus, prosecution has not only failed to prove any charge against Bajrangi Tanti (sole remaining appellant of the present case) for causing injury upon the person of the deceased but also unable to prove any injury inflicted by this appellant upon any of the aforesaid prosecution witnesses. 11. On perusal of the deposition of Dr. S. K. Rai Chowdhary (PW 10), who has conducted post-mortem examination of deceased Bishun Tanti on 18th November, 1980, it appears that there were three injuries on the body of the deceased. This witness has also stead that injuries were not sufficient in ordinary course of nature, to cause the death of the deceased. There was infection and therefore, the injuries were not ordinarily sufficient to cause the death of the deceased. This evidence of PW 10 also will show that if injured informant Bishun Tanti, who has expired after several days of the offence, had received proper treatment and care, he might have survived. Moreover, Dr. S.K. Chowdhary (PW 10) has also stated that injuries sustained by the deceased might have been caused by 'gadasa' and as per the deposition of prosecution witnesses and FIR, present appellant Bajrangi Tanti was allegedly armed with a sword. Thus, present appellant has inflicted no injury upon the body of the deceased, This aspect of the matter has also riot been appreciated by the learned trial Court and therefore, judgment and order of conviction and sentence passed by the learned trial Court deserves to be quashed and set aside. 12. Moreover, case of the prosecution, so far as present appellant is concerned, is not very different from the other accused persons, who have been acquitted by giving benefit of doubt. 12. Moreover, case of the prosecution, so far as present appellant is concerned, is not very different from the other accused persons, who have been acquitted by giving benefit of doubt. We have perused the evidences on record and found the case of the present appellant at a better footing than that of the accused persons, who were acquitted giving benefit of doubt because some of them were armed with hard and blunt substance and the injuries upon the person of injured eye-witness Chulhai Tanti could have been caused by hard and blunt substance. Thus, prosecution has failed to prove beyond reasonable doubt that the present appellant has committed murder of deceased Bishun Tanti. 13. We, therefore, quash and set aside the judgment and order of conviction and sentence dated 25th May, 1991, passed by the 1st Additional Sessions Judge, Godda in Sessions Trial No. 4 of 1982 (159 of 1988), whereby the original accused No. 1 and original accused No. 3 (sole remaining appellant of the present case) have been convicted for the offences punishable under Section 302, IPC and sentenced to undergo imprisonment for life. 14. Since the sentence has already been suspended, so far as the present appellant, namely Bajrangi Tanti is concerned, by a Division Bench of this Court and as he is already on bail, he is discharged from the liability of the bail bond. 15. The appeal is allowed and disposed of. Appeal allowed.