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2015 DIGILAW 1150 (JHR)

Bhikhari Rabidas v. State of Jharkhand

2015-09-21

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : Both the appellants as well as Kusmi Devi were put on trial on the accusation of committing murder of Manoj Tanti in furtherance of their common object and also on the charge of making an attempt on the life of Krishna Kumar Tanti in furtherance of their common object. However the trial court did find the appellant Bhikhari Rabidas guilty for committing murder of Manoj Tanti and accordingly, convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life whereas the appellant Balla Ravidas was convicted for the offence under Section 307 of the Indian Penal Code and was sentenced to undergo imprisonment for ten years and the accused Kusmi Devi was convicted for the offence punishable under Section 337 of the Indian Penal Code and was released after due admonition. 2. The case of the prosecution as has been made out in the Fardbeyan (Ext.1/A) is that on 1.4.2000 at about 8 p.m. the informant, Fekan Tanti (P.W.5) while was washing his hand after taking meal in the alley situated in between the house of the informant and the appellants, the appellant Bhikhari Rabidas made objection by saying as to why he has been washing his hand over his land. Upon it, the informant, Fekan Tanti told him that he is doing so over his land. This led to verbal altercation in between them. Meanwhile, Gulchand Ravidas, son of he appellant Bhikhari Ravidas came with lathi and gave one blow over his head. In the meantime, when Krishna Kumar Tanti another son of the informant came to rescue them, the appellant Balla Ravidas made him to fall on the ground and then started assaulting over his chest with a piece of brick as a result of which Krishna Kumar Tanti started bleeding. Meanwhile the appellant, Bhikhari Ravidas made Manoj Tanti (deceased) to fall on the ground and then started assaulting over his chest with a piece of brick and went on assaulting him till he died. While this was going on, Gulabchand Ravidas, son of Bhikhari Ravidas, Kushmi Devi and Balla Ravidas started pelting stone over his house, as a result of which, tiles got broken. 3. While this was going on, Gulabchand Ravidas, son of Bhikhari Ravidas, Kushmi Devi and Balla Ravidas started pelting stone over his house, as a result of which, tiles got broken. 3. Meanwhile, some well wishers informed about the incidence to Kamal Kishore Singh (P.W.13), Sub-inspector of Taljhari police station, who came to the place of occurrence and recorded the Fardbeyan (Ext.1/A) of the informant on 1.4.2000 at 10 p.m. wherein the informant, Fekan Tanti (P.W.5) narrated about the incident as stated above and also stated that an alley is there in between their houses over which accused persons are claiming their title which has created animosity in between them and due to this, the appellants have committed the offence. 4. On such Fardbeyan (Ext.5), FIR was drawn and the case was registered against the appellants and others. The matter was taken up for investigation by P.W.13, who in course of investigation held inquest on the dead body of the deceased and prepared an inquest report (Ext.8) and sent the dead body for post mortem examination which was conducted by Dr.Niranjan Kumar Jha (P.W.10), who upon holding autopsy on the dead body of Manoj Tanti did find following injuries. 1. Multiple abrasions and bruises over anterial chest wall. 2. Fracture of third to seventh ribs on the left side of chest wall. Ribs penetrating through lung tissues on the left side. Blood and blood clot inside the chest cavity. 3. Heart smashed. Blood clot over heart surface. 5. Doctor issued post mortem examination report (Ext.3) with an opinion that death was caused due to haemorrhage and shock on account of aforesaid injuries caused by hard and blunt substance such as lathi, brick, stones etc. 6. On the same day i.e. on 2.4.2000 another doctor, Dr.Alakh Kumar Mandal (P.W.12) examined Fekan Tanti and found the following injuries. “Lacerated wound 1-1/2 x 1/6 x scalp deep over left parietal area of head”. 7. Doctor issued injury report (Ext.4) with an opinion that injury sustained by him is simple in nature caused by hard and blunt substance 8. Doctor also examined the injured Krishna Kumar Tanti and found the following injuries. 1. Swelling 1” x 1” with abrasion ¼” x ¼” over left side of forehead near left eye brow. 2. Sub-conjunctiva haemorrhage left eye. 9. Doctor also examined the injured Krishna Kumar Tanti and found the following injuries. 1. Swelling 1” x 1” with abrasion ¼” x ¼” over left side of forehead near left eye brow. 2. Sub-conjunctiva haemorrhage left eye. 9. Nature of injury no.ii was found to be simple whereas opinion regarding nature of injury no.i was kept reserved awaiting X-ray. 10. To that effect he issued injury report (Ext.4/1). Upon receiving of the X-ray report, doctor did find fracture of frontal and parietal bone of skull which was found to be grievous in nature caused by hard and blunt substance. 11. The said Doctor (P.W.12) had also examined the appellant Bhikhari Rabidas and found the following injuries. Lacerated wound 1” x 1/6” x scalp deep over left parietal area of the head which was found to be simple caused by hard and blunt substance. Accordingly, injury report (Ext.4/3) was issued. 12. Meanwhile, the Investigating Officer (P.W.13) during inspection of the place of occurrence did find blood being spilled over the ground. He did also find lathi and piece of brick having blood mark on it which was seized under seizure list (Ext.7). 13. The Investigating Officer also recorded the statements of the witnesses. On completion of investigation, when the charge sheet was submitted cognizance of various offences including the offences under Sections 302,149, 307, 337 etc. was taken against the appellants and other accused persons and when the case was committed to the court of sessions, the appellant were put on trial. 14. During trial, the prosecution examined as many as 13 witnesses. Of them, P.W.4, Chhotelal Tanti, son of the informant and P.W.5 Fekan Tanti, the informant did depose in the same manner as the statement was there in the Fardbeyan. P.W.1, Krishna Kumar Tanti, son of the informant is an injured witness has testified that while he after taking meal was washing his hand, the appellants started abusing him. When his father Fekan Tanti came and asked the appellant Bhikhari Ravidas as to why he is abusing then the appellant Bhikhari Ravidas assaulted over the head of his father. When he went to rescue his father, the appellant Bhikhari Ravidas assaulted him with lathi, as a result of which, he started bleeding and then became unconscious. When he regained consciousness, his father told that his brother Manoj Tanti has been killed by the appellants. When he went to rescue his father, the appellant Bhikhari Ravidas assaulted him with lathi, as a result of which, he started bleeding and then became unconscious. When he regained consciousness, his father told that his brother Manoj Tanti has been killed by the appellants. P.W.2, Sushila Devi, wife of the informant Fekan Tanti claimed to be the eye witness but in the cross-examination, she did testify that after hearing halla, when she went outside of the house, she saw her husband Fekan Tanti and his son Manoj Tanti lying on the ground. Thus, it is evident that she was never the eye witness. P.W.3, Manju Kumari, daughter of the informant has also testified that when his father was washing his hand at the alley, the appellant Bhikhari Ravidas first abused him and then assaulted with lathi. When his brother Krishna Kumar Tanti (P.W.1) came to rescue him, he was also assaulted by Gulchand Ravidas and then Manoj Tanti was assaulted by the appellant with a piece of brick and went on assaulting him till he died. Thereafter the accused persons started pelting stone. P.W.6, Ramdeo Tanti has testified that there had been exchange of abuses and then pelting of stone by each of the side. When he went to the place of occurrence, he found Manoj Tanti lying on the ground. The appellant Bhikhari Ravidas was also having broken finger. P.W.7,Hardeo Tanti, P.W.8, Naresh Thakukr and P.W.9, Surtan Bibi have been declared hostile. However, P.W.9, Surtan Bibi has testified that she heard halla that altercation is going on in between the appellant Bhikhari Ravidas and the informant Fekan Tanti and when she went to the house of Fekan Tanti, she found that there was pelting of stone from the side of the appellant, Bhikhari Ravidas. There she did find Krishna Kumar Tanti in unconscious state whereas Manoj Tanti was lying dead. 15. On closure of the prosecution case, when the appellants were questioned under Section 313 of the Code of Criminal Procedure over incriminating materials appearing against them, they denied. 16. Thereupon the defence also examined witnesses taking plea that the occurrence had taken place in other manner. 17. The trial court having placed implicit reliance on the testimonies of P.W.4 Chhotelal Tanti and P.W.5, Fekan Tanti, the informant and also P.W.1, Krishna Kumar Tanti getting corroboration from the medical evidence as has been testified by Dr. 16. Thereupon the defence also examined witnesses taking plea that the occurrence had taken place in other manner. 17. The trial court having placed implicit reliance on the testimonies of P.W.4 Chhotelal Tanti and P.W.5, Fekan Tanti, the informant and also P.W.1, Krishna Kumar Tanti getting corroboration from the medical evidence as has been testified by Dr. Niranjan Kumar Jha and also Dr. Alakh Kumar Mandal, who did find the injury on the person of Krishna Kumar Tanti as grievous recorded the order of conviction under Section 302 of the Indian Penal Code against the appellant, Bhikhari Ravidas whereas the appellant Balla Ravidas as well as Kushmi Devi were found guilty for the offence under Sections 307 and 337 of the Indian Penal Code respectively. However, the trial court acquitted the appellants for the offence punishable under Sections 147, 341, 427 and 448 of the Indian Penal Code. The said order of conviction and sentence is under challenge. 18. Mr. Sarju Prasad, learned counsel appearing for the appellants submits that the witnesses particularly P.W.4 and P.W.5 are even be taken to be trustworthy, no offence of culpable homicide is made out as whatever happened, it happened as per the evidence of P.W.6 and P.W.9, in course of altercation took place in between the parties during which the appellant Bhikhari Ravidas had also sustained injury and hence, the case would fall within one of the exceptions, exception fourthly of Section 300 of the Indian Penal Code and thereby the appellant would not be liable to be punished for the offence under Section 302 of the Indian Penal Code. 19. As against this, learned counsel appearing for the State submits that as per the testimonies of the witnesses, particularly P.W.4 and P.W.5, the appellant Bhikhari Ravidas assaulted the deceased with a piece of stone and went on assaulting till he died and the injury caused by him was sufficient to cause death and thereby the trial court was absolutely justified in recording the conviction under Section 302 of the Indian Penal Code against the appellant Bhikhari Ravidas whereas the appellant Balla Ravidas did assault P.W.1 with a view to kill him and the injury sustained by him on the vital part of his body was found to be grievous and thereby he has rightly been convicted for the offence under Section 307 of the Indian Penal Code. 20. 20. Having heard leaned counsel appearing for the parties and on perusal of the record, we do find that initially the case which was made out in the FIR is that while Fekan Tanti (P.W.5) was washing his hand at the alley which was there in between the houses of the informant and the appellant, the appellant Bhikhari Ravidas asked him not to wash his hand over that land as it belonged to him, upon it there was exchange of abuses. Meanwhile Gulchand Ravidas, son of the appellant Bhikhari Ravidas came and assaulted with lathi over the head of Fekan Tanti. Meanwhile, Krishna Kumar Tanti (P.W.1) came over there to save his father but he was caught hold by the appellant Bhikhari Ravidas who made him to fall on the ground and then assaulted with a piece of brick. At the same time, the appellant Bhikhari Ravidas made Manoj Tanti, another son of the informant Fekan Tanti to fall on the ground and then went on assaulting over his chest with a piece of brick, as a result of which, he died. However, during course of trial, P.W.1 an injured witness did testify that it was Bhikhari Ravidas who had assaulted his father Fekan Tanti, when his father had asked Bhikhari Ravidas not to wash his hand over the alley which evidence is not in consonance with the case made out in the FIR. However, he has testified that he was assaulted by Balla Ravidas, as a result of which, he started bleeding. Testimony of this witness regarding Manoj Tanti being assaulted by the appellant Bhikhari Ravidas gets corroboration from the evidence of P.W.3. 21. Further we do find that P.W.4 and P.W.5 are consistent on the point that it was Balla Ravidas, who made Krishna Kumar Tanti to fall on the ground and then assaulted with a piece of brick, as a result of which, he started bleeding and that it was Bhikhari Ravidas, who went on assaulting Manoj Tanti till he died. Ocular testimonies of the aforesaid witnesses get corroboration from the medical evidence of P.W.10, Dr. Niranjan Kumar Jha, who found corresponding injuries on the person of the deceased and also by Dr. Alakh Kumar Mandal (P.W.12), who also did find corresponding injuries on the person of P.W.1. Ocular testimonies of the aforesaid witnesses get corroboration from the medical evidence of P.W.10, Dr. Niranjan Kumar Jha, who found corresponding injuries on the person of the deceased and also by Dr. Alakh Kumar Mandal (P.W.12), who also did find corresponding injuries on the person of P.W.1. Thus, we do find that it was the appellant Bhikhari Ravidas who killed the deceased whereas the appellant Balla Ravidas did assault Krishna Kumar Tanti, as a result of which he sustained grievous injury on the vital part and thereby the trial court was absolutely justified in recording the order of conviction and sentence against the appellant, Balla Ravidas. 22. So far as the appellant Bhikhari Ravidas is concerned, the question does arise as to whether in the facts and circumstances his case does fall within one of the exceptions, exception fourthly of Section 300 of the Indian Penal Code ? 23. In this regard we do find that P.W.6 and P.W.9 have testified that there had been verbal altercation in between the parties and there was pelting of stones from each side. At the same time, P.W.6 did testify that he had seen Bhikhari Ravidas injured which fact gets corroboration from the evidence of Dr.Alakh Kumar Mandal (P.W.12) who had examined the appellant Bhikhari Ravidas also and did find injury on the person of Bhikhari Ravidas but the witnesses are quite silent on this point. However, from the circumstances appearing as has been stated above, it becomes quite evident that whatever happened that had happened in course of altercation which had suddenly occurred. Under the circumstances, the case falls within the parameter of exception fourthly of Section 300. 24. In that event, the instant case happens to be a case of culpable homicide not amounting to murder but the trial court did not take into account this aspect of the matter and thereby committed illegality in convicting the appellant Bikhari Ravidas under Section 302 of the Indian Penal Code. Therefore, instead of Section 302 the appellant Bhikhari Ravidas is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and he, who had been in custody for more than eight years, is sentenced for the period already undergone. 25. Since both the appellants have served out the sentences, they are discharged from the liability of their bail bonds. 26. 25. Since both the appellants have served out the sentences, they are discharged from the liability of their bail bonds. 26. With the aforesaid modification in the order of conviction and sentence, this appeal is allowed but in part.