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2015 DIGILAW 1242 (JHR)

Hari Pada Modi v. State of Jharkhand

2015-10-07

PRAMATH PATNAIK, R.R.PRASAD

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JUDGMENT : Both the appeals since arising out of the same judgment were heard together and are being disposed of by the common order. 2. The appellants Hart Pada Modi, Lakhiram Modi and Ram Pada Modi (all appellants in Cr. Appeal (DB) No. 1056 of 2007) and also the other appellants of Cr. Appeal (DB) No. 1023 of 2007 namely Kunwar Modi, Jagnu Modi, Pratham Modi, Lodha Modi, Kantu Modi, Kamal Modi, Balram Modi, Dharma Modi were put on trial along with Shibu Modi (died during pendency of this appeal) for committing murder of Jaggu Rajwar and also for making an attempt on the life of Prafulya Rajwar and Paru Rajwarin. The Court having found all the appellants guilty for committing murder of Jaggu Rajwar in furtherance of their common object convicted them under Section 302/149 of the Indian Penal Code and further convicted the appellants Kamal Modi, Balram Modi and Dharma Modi for the offence under Sections 324, 323 and 325 of the Indian Penal Code respectively vide judgment dated 12.07.2007 passed in Sessions Trial No. 369 of 2002. Accordingly, the trial Court sentenced all the appellants to undergo imprisonment for life and to pay a fine of Rs. 500/- for the offence under Section 302/149 of IPC and further sentenced the appellants Kamal Modi, Balram Modi and Dharma Modi to undergo imprisonment for two years six months and two years for the offences under Sections 324, 323 and 325 respectively. Dharma Modi was also sentenced to pay a fine of Rs. 500/-. 3. The case of the prosecution is that on 08.09.2002 at about 7.30 p.m. the appellant Kunwar Modi came to the house of the deceased jaggu Rajwar and took him to a temple-Hart Mandir. There altercation took place in between them as some dispute arose with respect to contributions made for reconstruction of the temple. In that course appellant Lakhiram Modi and Hari Pada Modi who were having tangi with them. Ram Pada Modi, Lodha Modi and Shibu Modi having farsa and rest having lathi assaulted Jaggu Rajwar. In that course, when the informant Prafulya Rajwar-PW 5 and Paru Rajwarin-PW 6, the wife of the deceased came to rescue Jaggu Rajwar (deceased) they were also assaulted as a result of which Paru Rajwarin sustained fracture over her hand. Meanwhile, the deceased died at the spot. In that course, when the informant Prafulya Rajwar-PW 5 and Paru Rajwarin-PW 6, the wife of the deceased came to rescue Jaggu Rajwar (deceased) they were also assaulted as a result of which Paru Rajwarin sustained fracture over her hand. Meanwhile, the deceased died at the spot. Thereupon, the informant and others brought the dead body to their house. 4. On the next day i.e. 09.09.2002 the S.I.-R.A. Khan, officer-in-charge of Chas Mufassil police station when came to village, recorded the fardbeyan (Ext. 2) of the informant Prafulya Rajwar-PW 5 wherein he narrated about the incident as has been stated above. 5. On the basis of the fardbeyan, a formal F.I.R (Ext.3) was drawn and the case was registered against these appellants as well as Shibu Modi (died during pendency of the appeal). The I.O. after holding inquest on the dead body of the deceased sent the dead body for post-mortem examination which was conducted by Dr. B. Prasad-PW 7, who upon holding autopsy on the dead body, did find following injuries :- (i) Fine cut 5" x 1/4" x scalp bone deep over middle of scalp. (ii) Fine or sharp cut 3 and 1/2" x 1/4" x 1/4" over left temporal part of skull. (iii) Sharp cut 4" x 1/4" x scalp bone deep over left temporal part of skull. (iv) Sharp cut 4" x 1/4" x bone deep over middle of chin. (v) Sharp cut 3" x 1/4" x skull bone deep over left side of frontal part of skull. On dissection-Fracture of left temporal and occipital bone was found. Blood and blood clots over surface of brain was found. Meninges and brain were intact but contused. Cranial cavity was found filled with blood' and blood clots. Left lung was found echimosed. Left second to fourth ribs were round fractured. There was blood and blood clots on the left side of thoracic cavity. Doctor issued post-mortem examination report (Ext. 1) with an opinion that death was caused clue to cardio-respiratory failure due to massive haemorrhage and shock on account or injuries caused to the vital organs like brain and lungs. On the same day, the doctor also examined the informant Prafulya Rajwar-PW 5 and found the following injuries : (i) Fine cut 1 and 1/2" x 1/6" x 1/6" over right scapular region caused by sharp edged weapon. On the same day, the doctor also examined the informant Prafulya Rajwar-PW 5 and found the following injuries : (i) Fine cut 1 and 1/2" x 1/6" x 1/6" over right scapular region caused by sharp edged weapon. (ii) Abrasion 4" x 1/8" over right side of scapular region. (iii) Abrasion 3/4" x 1/4" over right side of waist. (iv) Abrasion 1/4" x 1/4" over middle part of back. The doctor issued the injury report (Ext.4) with an opinion that injuries, which were found to be simple, have been caused by sharp weapon whereas injury No.2 has been caused by hard blunt substance. The doctor also examined the injured Paru Rajwarin and found following injuries: (i) Swelling 4" x 3-1/2" over dorsal surface of hand. (ii) Fracture on lower end of radius. The doctor issued injury report (Ext.4/1) with an opinion that both the injuries were caused by hard and blunt substance. 6. Meanwhile, the I.O. recorded the statements of the witnesses. On completion of the investigation, when the charge-sheet was submitted against the appellants, the Court took cognizance of the offences against all these appellants and also against Shibu Modi (died during the pendency of the appeal). Upon case being committed to the Court of Sessions, the appellants were put on trial during which the prosecution examined 8 witnesses. Of them, PW 1-Basu Rajwar and PW 2-Ruplal Rajwar are the hearsay witnesses who did testify that they came to know that during altercation, the deceased Jaggu Rajwar was killed by the appellants. PW 3-Anil Rajwar, PW 4-Amulya Rajwar and PW 5-Prafullo Rajwar all sons of the deceased and PW 6-Paru Rajwarin, the wife of the deceased, are the eye-witnesses. According to them, while the Jaggu Rajwar was in his house one of the appellants Kunwar Modi came to his house and took him to Hari Mandir where altercation took place as some disputes arose relating to contribution made for reconstruction of the temple-Hart Mandir. At that point of time one of the appellants Kunwar Modi exhorted others to kill the deceased who on hearing it raised alarm. On hearing alarm, all the aforesaid witnesses PWs 3, 4, 5 and 6 reached at the place of occurrence and saw the appellants Hari Pada Modi and Lakhiram Modi armed with tangi and Ram Pada Modi was having farsa and rest were having Lathi. They all assaulted the deceased by surrounding him. On hearing alarm, all the aforesaid witnesses PWs 3, 4, 5 and 6 reached at the place of occurrence and saw the appellants Hari Pada Modi and Lakhiram Modi armed with tangi and Ram Pada Modi was having farsa and rest were having Lathi. They all assaulted the deceased by surrounding him. When PWs 5 and 6 went their to rescue him they were also assaulted as a result of which PW 6 sustained fracture on her hand. Meanwhile, deceased died at the spot whose dead body was brought to the house. 7. On closure of the prosecution case, when the incriminating evidences were put to the appellants under Section 313 of Cr PC they denied it by taking a plea that in fact the appellants had been assaulted by the deceased and his sons as a result of which the appellants Hari Pada Modi and Lakhiram Modi had sustained injuries and for that a case was lodged against the deceased and his sons under Section 307 of the Indian Penal Code. However, the trial Court without taking into account the said fact, which was brought on record by way of filing of the judgment of the said case, did place implicit reliance on the testimonies of the eye-witnesses and found the appellants guilty for committing murder of the deceased and accordingly recorded the order of conviction and sentence as aforesaid which is under challenge. 8. Mr. N.K. Sahani, learned counsel appearing fur the appellants submits that it has been admitted virtually by all the prosecution witnesses that occurrence has taken place in course of altercation in between the deceased and the appellants during which some of the appellants alleged to have assaulted the deceased as a result of which he died. But accepting the testimonies of the witnesses, the appellants cannot be said to have committed offence under Section 302 of IPC as the occurrence, in view of the testimonies of witnesses itself has occurred suddenly in course of altercation and thereby, the case would fall within one of the exception, exception fourthly of Section 300 of IPC and in such situation appellants would not be liable for conviction for the offence under Section 302 of IPC. Further, it was submitted that injuries, which have been found on the person of the deceased, have been caused, according to the doctor-PW 7, by sharp heavy weapons which may be tangi and according to the doctor all the injuries have been caused by tangi and thereby it can easily be said that other than Hari Pada Modi and Lakhiram Modi none of the appellants did assault the deceased and thereby conviction of the appellants other than Hari Pada Modi and Lakhiram Modi under Section 302 of IPC is quite illegal. At the same time, Hari Pada Modi and Lakhiram Modi can also be said to have illegally convicted for the offence under Section 302 of IPC for the reason as has been stated above and thereby the trial Court committed illegality in recording the order of conviction and sentence and hence, it is fit to be set aside. 9. As against this learned counsel appearing for the State submits that it is the case of the prosecution that appellant Kunwar Modi came to the house of the deceased and took the deceased at Hart Mandir, where other appellants were there having arms with them and there the deceased was done to death, as per the defence, in course of altercation. But the circumstances appearing in the case go to suggest that Kunwar Modi with intention to kill the deceased brought him to the temple-Hari Mandir, where all the appellants in furtherance of their common object did kill the deceased and thereby the trial Court was absolutely justified in recording the order of conviction and sentence which needs no interference by this Court. 10. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been projected by counsel appearing for both the sides that the appellant Kunwar Modi on the day of occurrence came to the house of the deceased and took the deceased to Hari Mandir where altercation took place. That altercation, as per the evidence of PW 6, took place after an hour from taking the deceased to temple. During that altercation the deceased was assaulted. That altercation, as per the evidence of PW 6, took place after an hour from taking the deceased to temple. During that altercation the deceased was assaulted. It is the case of the prosecution that Lakhiram Modi and Hari Pada Modi were having tangi whereas the appellant Ravi Pada Modi was having farsa and rest of the appellants were having lathi who according to the witnesses did assault the deceased. But from the evidence of the doctor, it does appear that the deceased had sustained five injuries on his person, all caused, according to the doctor, by sharp heavy weapon which even had caused fracture of the skull and under the circumstances the weapon could be tangi ,and not farsa. At the same time, the doctor testified that he did not find any injury being caused by hard and blunt substance. Under the circumstances, one can easily to the conclusion that only two persons namely Lakhiram Modi and Hari Pada Modi did assault the deceased causing injuries resulting into his death. So far other appellants are concerned, they in the facts and circumstances cannot be said to have shared the common object and did assault the deceased. However, the submission which has been advanced on behalf of the State is that since one of the appellants had taken the deceased to temple where other appellants were there having arms with them and did assault the deceased and thereby it can easily be said that all the appellants were sharing common object. In the facts and circumstances, submissions advanced on behalf of the State is not acceptable. We may reiterate that as per the case of the prosecution one of the appellants Kunwar Modi came to the house of the deceased and took the deceased to temple-Hari Mandir with him where altercation took place in between them for the reason which has already been stated above. That altercation, as per the evidence of PW 6, took place almost after an hour from the time of taking the deceased. In that event, we are unable to endorse the view of the learned counsel appearing for the State that all the appellants were sharing the common object. That altercation, as per the evidence of PW 6, took place almost after an hour from the time of taking the deceased. In that event, we are unable to endorse the view of the learned counsel appearing for the State that all the appellants were sharing the common object. Under the circumstances, we do find that all the appellants except the appellants Lakhiram Modi and Hari Pada Modi were wrongly convicted by the trial Court under Section 302/149 of IPC and accordingly, recording of order of conviction against them appears to be quite wrong and hence, they are acquitted of the said charge. 11. It be stated that the appellant Dharma Modi has also been convicted for the offence under Section 125 of the Indian Penal Code for causing fracture to PW 6. In the facts and circumstances, we do not find any infirmity in the order of conviction. However, he in the facts and circumstances is being sentenced for the period already undergone. So far appellants Kamal Modi and Balram Modi are concerned they seems to have convicted for the offence punishable under Sections 324 and 323 of the Indian Penal Code respectively, but, we, on scrutiny of the evidence, do find that none of the witnesses have alleged against them to have caused injury either to the informant-PW 5 or PW 3 and thereby conviction and sentence recorded against them are hereby set aside and are acquitted of those charges. 12. Coming to the case of the appellant Lakhiram Modi and Had Pada Modi who have been convicted for the offence under Section 302/149 of the Indian Penal Code but the facts and circumstances appearing in this case amply depicts that whatever occurrence took place that took place in course of altercation which fact have been admitted by almost all the prosecution witnesses. That apart from Ext. A, which is the judgment passed in a counter case lodged by one of the appellants against the deceased and his sons PWs 3, 4, 5 and others, it appears that the accused persons have been convicted for the offence under Sections 324, 148 and 149 of the Indian Penal Code. Thus, there remains no doubt that the deceased was done to death in course of altercation that appears to have taken place suddenly during which the appellants namely Hari Pada Modi and Lakhiram Modi did assault with tangi. Thus, there remains no doubt that the deceased was done to death in course of altercation that appears to have taken place suddenly during which the appellants namely Hari Pada Modi and Lakhiram Modi did assault with tangi. Both the appellants have never been alleged to have acted after assaulting the deceased in cruel and unusual manner and thereby the case falls within one of the exceptions, Exception fourthly of Section 300 of the Indian Penal Code. Accordingly, both of them instead of Sections 302 and 149 of IPC are convicted for the offence punishable under Section 304 (Part II) of the Indian Penal Code and are sentenced for the period already undergone. 13. Consequently, the appellants Hari Pada Modi, Lakhiram Modi and Ram Pada Modi who are in custody since last 13 years are directed to be released forthwith, if not wanted in any other case. 14. In the result, this appeal stands allowed but in part. Appeal partly allowed.