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2013 DIGILAW 737 (JHR)

Bhukha Ahir v. State of Jharkhand

2013-06-24

D.N.PATEL, SHREE CHANDRASHEKHAR

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JUDGMENT Per D.N. Patel, ACJ.- This appeal was admitted vide order dated 14th of January, 2009. 2. Counsel appearing for the appellant submitted that the appellant is very poor person and therefore, this Court has granted legal aid and appointed him as amicus curiae from the panel lawyer of Jharkhand State Legal Services Authority. 3. One letter has been written from the jail which has been forwarded by the Superintendent of Central Jail, Ghaghidih, Jamshedpur dated 19th April, 2013 for suspension of sentence or for fixing the criminal appeal for final hearing. With the consent of the advocates for both the sides, this criminal appeal is finally heard by this Court. 4. Record and proceedings has been received by this Court. We have perused the record and proceedings and heard the counsel for both the sides at length. 5. It has been submitted by the counsel for the appellant that this appellant has been convicted by the Additional District & Sessions Judge, F.T.C., Simdega in Sessions Trial No. 20 of 2005 vide judgment of conviction and order of sentence dated 20/22.10.2008 respectively and the appellant is punished for life imprisonment for the offence punishable under Section 302 of IPC for causing murder of one Birsa Ahir and he is also ordered to pay fine of Rs. 25,000/ - and in case of default further sentence of S.I. for a period of four months has been awarded. 6. Counsel appearing for the appellant submitted that the learned trial Court has failed to appreciate that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses, and therefore, the judgment and order of conviction and sentence passed by Additional District & Sessions Judge, F.T.C., Simdega deserves to be quashed and set aside. It is also submitted by the counsel for the appellant that there is only one eye-witness i.e. PW 3 who is the informant and she is wife of the brother of the deceased. She is close relative of the deceased. In fact, looking to the cross-examination of this witness, the prosecution has failed to prove the offence beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial Court. She is close relative of the deceased. In fact, looking to the cross-examination of this witness, the prosecution has failed to prove the offence beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial Court. Moreover, looking to the depositions given by PW 3, it is clear that only one injury has been caused by this appellant upon the body of the deceased and that too, by hard and blunt substance. Looking to the deposition of PW 3, it appears that this appellant has caused injury by lathi (which is narrated by PW 3 as ‘sakhua danda’) on rib-cage of Birsa Ahir and looking to the medical evidence given by PW 8 Dr. Christ Anand Xaxa and as discussed in paragraph No. 13 of the judgment of the trial Court, it is clear that there is one single blow given by this appellant which resulted in fracture of three ribs of the deceased, who expired at about 7:00 p.m. on 24th November, 2004. The incident has taken place on 24th November, 2004 at about 2:00 p.m., but, no medical assistance was given to the injured person and ultimately he expired at 7:00 p.m. Thus, there was no intention on the part of this appellant to cause murder of this deceased. This was not a pre-planned or well designed action of causing murder of this deceased by this appellant. The defence has also examined two witnesses-DWs 1 and 2 and their evidences have not been properly appreciated by the learned trial Court. It is also submitted by the, counsel for the appellant that other prosecution witnesses who are PWs 4 and 5 are the brother and wife of the deceased. They are not the eyewitnesses, but, they were informed by PW 3 who is the informant of this case. Similarly. PWs 6 and 7 are also villager and another brother of the deceased, who are also hearsay witnesses. In these set of circumstances, it is alternatively submitted by the counsel for the appellant that if this Court is not inclined to acquit this appellant, then this appellant may be convicted under Section 304, Part I of IPC. The appellant is in the judicial custody since long and as per his calculation, he has already completed 10 years, 1 month and 29 days with remission in jail. 7. The appellant is in the judicial custody since long and as per his calculation, he has already completed 10 years, 1 month and 29 days with remission in jail. 7. Counsel appearing for the State-APP submitted that the case of the prosecution is based upon the eye-witness who is PW 3. The whole incident has taken place on 24th November, 2004 at about 2:00 p.m. and the F.I.R. has been lodged on 25th November, 2004. PW 3 is the informant and wife of the brother of the deceased. She has clearly narrated the role played by this appellant that, he with lathi caused injury on the chest of Birsa Ahir who expired after couple of hours. Even medical evidence given by PW 8 is corroborating the facts narrated by PW 3 and therefore, no error has been committed by the, learned trial Court in convicting the appellant for the offence punishable under Section 302 of IPC and therefore, this appeal may not be interfered with by this Court. It is also submitted by the counsel for the State that there is proper appreciation of evidence of DWs 1 and 2 by the learned trial Court and hence, his appeal may not be entertained by this Court. 8. Having heard the counsel for both the sides and looking to the evidences on record, it appears that PW 3 is informant who is the wife of the brother of the deceased. She has given her fardbeyan (Ext. 3) on 25th November, 2004 at about 8:30 a.m. that when she was returning to home after grazing her cattle, at that time, Birsa Ahir was sleeping under the jack-fruit tree and mango tree in front of the house. Meanwhile, another brother-in-law and the present appellant came there and started abusing Birsa Ahir, and thereafter, this appellant picked up a 'sakhua danda' which was lying there and caused injury on the chest of Birsa Ahir. The informant snatched the said sakhua danda' which is a hard and blunt substance from the hand of the appellant and thereafter, the appellant went to his house. Birsa Ahir was lying there in pain and after sometime the wife of Birsa Ahir, who is PW 5 came there along with other villagers and they gave some treatment. Meanwhile, at about 7:00 p.m., Birsa Ahirexpired. On the basis of statement of PW 3. Birsa Ahir was lying there in pain and after sometime the wife of Birsa Ahir, who is PW 5 came there along with other villagers and they gave some treatment. Meanwhile, at about 7:00 p.m., Birsa Ahirexpired. On the basis of statement of PW 3. first information report was lodged investigation was carried out, statements of several witnesses were recorded charge-sheet was filed and Sessions Trial No. 20 of 2005 was committed to the Sessions Court and on the basis of the evidences given by PWs 1 to 9 and also on the basis of the depositions given by DWs 1 and 2, this appellant has been convinced for life imprisonment for the offence punishable under Section 302 of IPC and was also made liable to pay a fine Rs. 25.000/- and in case of default, he was awarded further sentence of S.I. for a period of four months, for causing murder of the deceased vide judgment and order of conviction and sentence passed by Additional District & Sessions Judge. F.T.C., Simdega dated 20/22.10.2008. Against this judgment and order of conviction and sentence, the present appeal has been preferred. 9. The case of the prosecution is based on sale eye-witness. PW 3. We have carefully gone through the evidence including the cross-examination and it appears that there was no intention on the part of the appellant to cause murder of the deceased because appellant and brother-in-law of the informant came together. The appellant came there without any weapon in his hand. He was abusing Birsa Ahir. Whatever weapon was lying there was picked up by him and a single blow was given on the chest of Birsa Ahir. 10. We have also carefully perused the deposition given by PW 8 Dr. Christ Anand Xaxa who has stated in his deposition that fractures of 4th, 5th and 6th ribs was capable of being caused by hard and blunt substance like danda. There is no separate external injury. In paragraph No. 13 of the judgment of the trial Court, it has been discussed at length that the injury was capable of being caused by single blow as per narration given by eye-witness PW 3. Thus, looking to the evidences on record it appears that a single blow was given by this appellant and, that too, by whatever hard and blunt substance was lying nearby the house of the deceased. Thus, looking to the evidences on record it appears that a single blow was given by this appellant and, that too, by whatever hard and blunt substance was lying nearby the house of the deceased. From these evidences on record, the intention is gathered and it appears that, there was no intention on the part of the appellant to cause the murder of the deceased. The appellant did not attempt to give repeated blow to 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 and sentence deserves to be quashed and set aside. 11. Looking to the other evidences given by prosecution witnesses, it appears that PWs 1 and 2 are the seizure list witnesses and a ‘sakhua danda’ was seized by the police which is a hard and blunt substance used in causing injury upon the deceased. 12. Looking to the depositions given by PWs 4 and 7, they are the brothers of the deceased. They are not the eye-witnesses of the incident. They were informed by PW 3 who is the informant of this case. Likewise, PWs 5 and 6 are also hearsay, witnesses who were informed by PW 3. Thus, the main star witness is PW 3. PW 9 is the Investigating Officer. Thus, looking to the overall evidences on record, it appears that the injury was caused by hard and blunt substance. 'There is a single blow given by this appellant to Birsa Ahir. The injury was caused at rib-cage which has resulted into fractures of 4th, 5th and 6th ribs. Injuries were caused at 2:00 p.m. on 24th November, 2004 and he expired at about 7:00 p.m. on the same day. Looking to these evidences on record, there appears to be no intention on the part of the appellant to cause murder of the deceased and thus, the prosecution has failed to prove that the murder of Birsa Ahir was committed by this appellant with an intention to kill him. The offence committed by this appellant is a culpable homicide not amounting to murder. We, therefore, convict this appellant for the offence punishable under Section 304, Part I of IPC and punish this appellant for sentence of 10 years R.I. for the offence committed by him. 13. The offence committed by this appellant is a culpable homicide not amounting to murder. We, therefore, convict this appellant for the offence punishable under Section 304, Part I of IPC and punish this appellant for sentence of 10 years R.I. for the offence committed by him. 13. It is confirmed by the learned APP that the appellant has remained in custody for 8 years, 6 months and 23 days and with remission of 1 year, 7 months and 6 days, he has remained in jail for 10 years, 1 month and 29 days. This calculation is based upon the calculation of the Superintendent of the Central Jail, Ghaghidih, Jamshedpur dated 19th June, 2013. In view of this statement of APP which is based upon the written instruction given by the Jail Superintendent, since this appellant has already undergone 10 years of R.I. he would be released forthwith, if his presence is not required in any other offence. This criminal appeal is partly allowed. 14. The photo copy of the letter of the Superintendent of the Central Jail, Ghaghidih, Jamshedpur dated 19th June, 2013 tendered by the learned APP is taken on record. 15. In the result, we quash and set aside the judgment and order of conviction and sentence passed by the Additional District & Sessions Judge, F.T.C., Simdega in Sessions Trial No. 20 of 2005 dated 20/22.10.2008 for causing murder of the deceased and convicting and sentencing appellant for offence under Section 302 of IPC and it is modified into an offence punishable under Section 304, Part I of IPC replacing the conviction under Section 302 of IPC and is sentenced to undergo R.I. for 10 years. 16. Accordingly, this criminal appeal is partly allowed and disposed of. Appeal partly allowed.