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2015 DIGILAW 468 (JHR)

Raghu Hari v. State of Jharkhand

2015-04-15

R.R.PRASAD, RAVI NATH VERMA

body2015
JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 7.2.1998 passed by the then 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 431 of 1993 whereby and whereunder the court having found all the four appellants guilty of committing murder of Raman Rai convicted them under sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2 The case of the prosecution, as has been projected, is that on 11.7.1993 at about 7.30 a.m. when the deceased Raman Rai saw the appellants ploughing a field belonging to him, he went there and asked the appellants not to plough the field, but they did not pay any heed to his request. Thereupon, the deceased In order to prevent them from ploughing the field separated the bullock from the plough. Upon it all the four appellants started assaulting the deceased as a result of which he fell down and then Ashok Hari appellant gave him a tangi blow, whereas appellant Sohan Hari inflicted bhala injuries. While the deceased was being assaulted by the appellants, informant Sanjho Rai (PW4) and Gyan chandra Rai (PW1) came to the place of occurrence and saw the appellants assaulting the deceased. The deceased died at the spot. Thereupon, the informant (PW4) came to the police station and gave his fard beyan (Ext.2) to the ASI, Sobhit Jha (PW5) who recorded it, upon which a formal FIR (Ext 3) was drawn and investigation of the case was taken up by him. 3 During investigation, the investigating officer (PW5) inspected the place of occurrence and found the dead body lying there in the field which was found ploughed. There, the investigating officer found earth smeared with blood which was seized under seizure list (Ex5). The investigating officer held inquest on the dead body of the deceased and prepared an inquest report (Ext4). After preparing the inquest report, the dead body was sent for post mortem examination which was conducted by Dr. K. Kumar (PW3). During post mortem examination, the doctor did find the following external injuries on the person of the deceased : (I) One penetrating wound 1/2” below the left ear; (II) One lacerated wound on the occipital region 1/4”x1/8”x skin deep. According to the doctor, injury no. K. Kumar (PW3). During post mortem examination, the doctor did find the following external injuries on the person of the deceased : (I) One penetrating wound 1/2” below the left ear; (II) One lacerated wound on the occipital region 1/4”x1/8”x skin deep. According to the doctor, injury no. (i) was caused by a piercing object, whereas injury no (ii) over the skull was caused by hard and blunt substance. 4 Accordingly, the doctor issued post mortem examination report (Ext 1) with an opinion that the death of the deceased was caused on account of injury no. (I) which caused injuries to the major blood vessels leading to haemorrhage and death of the deceased. The investigating officer, in the meantime, recorded statements of the witnesses. 5 After completion of the investigation, the investigating officer submitted charge sheet against the appellants upon which cognizance of the offence was taken and when the case was committed to the court of sessions, the appellants were put on trial during which the prosecution examined altogether five witnesses. Of them PW1 Gyan Chandra Rai and PW4 Sanjho Rai (informant) are the eye-witnesses who did testify that when they heard the deceased raising hulla consequent upon his field being ploughed by the appellants, they went there and saw the appellant Govind Hari assaulting the deceased with lathi, whereas appellant Ashok Hari gave tangi blow over the head and the appellant Sohan Hari inflicted bhala injury below the ear of the deceased and the appellant Raghu Hari assaulted the deceased with a wooden portion of the spear. PW2, the mother of the-deceased, happens to be a hearsay witnesses. 6 When the case of the prosecution was closed, incriminating evidences appearing against the appellants were put to them under section 313 of the Code of Criminal Procedure which were denied. Thereupon, the court having found the eye witnesses (PWs 1 and 4) to be the trust worthy, whose testimonies getting corroboration from the medical evidence and also from the objective finding of the investigating officer, did find them guilty and accordingly recorded the order of conviction and sentence against the appellants which is under challenge in this appeal. 7 Mr. Amaresh Kumar, appointed as amicus curiae, submitted that Pws. 1 and 4 have claimed themselves to be the eye witnesses, but, in fact, they are not the witnesses to the occurrence. 7 Mr. Amaresh Kumar, appointed as amicus curiae, submitted that Pws. 1 and 4 have claimed themselves to be the eye witnesses, but, in fact, they are not the witnesses to the occurrence. In this regard, it was submitted that PW4 in his fard beyan has stated that he reached at the place of occurrence when the appellants had left the place of occurrence. Similar is the situation with respect to PW1, as he is said to have accompanied PW4. Further, it was submitted that both these eye witnesses have testified to the effect that two tangi blows were given by the appellant Ashok Hari, but it does not find corroboration from the medical evidence as the doctor has found only one injury over the occipital region of the deceased which has been found to have been caused by hard and blunt substance whereas the injury no. (i) is said to have been caused by appellant Ashok Hari by tangi. 8 As against this, Mr. Pankaj Kumar, learned counsel appearing for the State, submits that though PW1 in his fard beyan has stated that he reached at the place of occurrence when the accused persons had fled away, but that does not mean that he had no occasion to see the occurrence as according to PWs 1 and 4, they had proceeded towards the place of occurrence upon alarm being raised by the deceased when he did find his land being ploughed by the appellants and thereby both the eye witnesses must have seen the appellants assaulting the deceased while coming to the place of occurrence. Further, it was submitted that it is true that PW4 and 1 have stated that two tangi blows were given by the appellant Ashok Hari, though the doctor has found only one injury over the scalp, but that does not belie the entire testimonies of the witnesses for the reason that the witnesses might have said so in order to make the accusation against the appellants more graver and thereby it can be taken to be an exaggeration. Further, it was submitted that the testimony of PWs. Further, it was submitted that the testimony of PWs. 4 and 1 gets corroboration not only from the medical evidence, but also from the objective finding of the investigating officer who did notice that the place of occurrence had been ploughed and there the investigating officer also did find the earth smeared with blood and, therefore, the trial court has rightly recorded the order of conviction and sentence against these appellants. 9 Having heard learned counsel for the parties and on perusal of the record, we do find that as per the testimonies of PWs 1 and 4, when the deceased did find the appellants ploughing his field, he by raising alarm came to his field and asked the appellants not to plough the field. When the appellants did not pay heed to the request made by the deceased, the deceased separated the bullock from the plough and then it is the said that the appellant Govind Hari assaulted the deceased with danda. Thereupon, the appellant, Sohan Hari inflicted bhala injury upon the deceased, as a result of which he fell down and then Ashok Hari gave tangi blow, whereas the appellant Raghu Hari assaulted the deceased with a lathi portion of the spear. Thereupon, the deceased died. 10 Thus, in the fact and circumstances, question does arise as to whether all the appellants were sharing common intention to commit murder of the deceased? 11 It be stated that PW3, the doctor, has found two injuries on the person of the deceased, -one being a penetrating wound ½” x ¼” x 1 ½” below left ear which, according to the doctor, proved to be fatal and the other being lacerated wound on occipital region ¼” x 1/8” x skin deep. Admittedly, no corresponding injury of lathi blow was found. However, both the eye-witnesses have deposed that when the appellant Govind Hari was ploughing the field, the deceased came there and asked him not to plough the field upon which Govind Hari assaulted the deceased with lathi. Accepting this piece of evidence of the witnesses, it does hardly indicate towards the intention of the appellant Govind Hari to commit murder of the deceased. Accepting this piece of evidence of the witnesses, it does hardly indicate towards the intention of the appellant Govind Hari to commit murder of the deceased. In all probability, it does appear that when the deceased asked appellants not to plough the field which was a disputed piece of land, the appellant Govind Hari did not care for that and then the deceased separated the bullock from the plough which may have annoyed the appellant Govind Hari and thereby he assaulted the deceased with lathi without there being any intention or sharing any common intention with the other appellants to commit murder of the deceased. Similar is the situation with respect to appellant Reghu Hari who is said to have assaulted the deceased with a wooden portion of the spear. Had there been any intention on the part of the appellant Raghu Hari to commit murder, he could have used the spear itself which fact itself does indicate that he had no intention, nor there was sharing of common intention with other accused to commit murder of the deceased. 12 Coming to the case of the another appellant Ashok Hari, he is said to have given two tangi blows over the occipital region of the scalp of the deceased. But the doctor (PW3) has found only one injury over the occipital region of the scalp of the deceased, -that too skin deep, -indicating sufficiently that the blow was never given with intention to cause fatal injury and thereby he does not seem to have had any intention or shared common intention with the other accused persons to commit murder of the deceased. 13 Now coming to the case of Sohan Hari, he, as per testimonies of the PWs 1 and 4, had inflicted the injury with a spear below the ear which according to the doctor proved to be fatal. The testimony of the eyewitnesses not only get corroboration from the medical evidence but it also gets corroboration from the objective finding of the Investigating Officer, who not only did find that the field had already been ploughed, but also found the earth smeared with blood. The testimony of the eyewitnesses not only get corroboration from the medical evidence but it also gets corroboration from the objective finding of the Investigating Officer, who not only did find that the field had already been ploughed, but also found the earth smeared with blood. Thus, sufficient evidence is there to establish that the appellant Sohan Hari had intention to commit murder of the deceased and with such intention, he caused the injury which proved fatal and thereby he is convicted for the offence punishable under section 302 instead of sections 302/34 of Indian Penal Code. However, the sentence imposed by the trial court shall remain intact. 14 So far as other appellants (Raghu Hari, Ashok Hari and Govind Hari) are concerned, we have found that though actus rea was there on the part of these appellants, (Govind Hari, Ashok Hari and Raghu Hari), but mens rea never seems to be there to commit murder of the deceased and thereby they are acquitted of the charge under sections 302/34 of the Indian Penal Code. However, the appellants Govind Hari and Raghu Hari are held guilty of the offence under section 323 of the Indian Penal Code and accordingly, they (Govind Hari and Raghu Hari) are convicted for the offence punishable under section 323 of the Indian Penal Code and are sentenced to the period already undergone. 15 The appellant, Ashok Hari is convicted for the offence punishable under section 324 of the Indian Penal Code and is also sentenced to the period already undergone. For the reasons aforesaid, this appeal is allowed, but in part.