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2015 DIGILAW 694 (JHR)

Bisheshwar Hajra v. State of Jharkhand

2015-06-16

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : This appeal is directed against the judgment of conviction dated 15.10.2005 and the order of sentence dated 20.10.2005 passed by the then Additional Sessions Judge-cum-FTC 7, Giridih in S.T. No.83 of 2003 whereby and whereunder the court having found the appellant guilty for committing murder of Etwari Hajra convicted him for the offence punishable under Section 302 of the Indian PenalCode and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/-. 2. The case of the prosecution is that on 19.10.2002 one Etwari Hajra (deceased) husband of the informant Kunti Devi (P.W.4) left home after taking meal for the field for bringing grass. At about 12 O’clock the appellant, the younger brother of the deceased Etwari Hajra started raising wall at the space in front of the house of the informant. This was objected by the informant on the plea that if he will be raising wall, there would be no access to his house from in front of the house but the appellant did not care, rather raised the wall upto one feet. At about 3 O’clock when the informant, husband of Etwari Hajra came and found wall being raised, he demolished the wall with spade which he was having with him. Seeing this, the appellant came out of the house with lathi and assaulted over the head of Etwari Hajra, as a result of which, he fell down and became unconscious. The informant raised alarm, upon which the informant’s mother-in-law and father-in-law and also villagers came over there with whose help the informant brought her husband to Sadar Hospital. There the doctor referred the case to Ranchi. Before the deceased was taken to Ranchi, he died. Thereupon the informant brought the dead body to Bengabad Police Station where the informant on 20.10.2002 at about 1.50 p.m. gave her fardbeyan, upon which first information report (Ext.2) was drawn. The Investigating Officer took up the mater for investigation. During which, he held inquest on the dead body of the deceased and prepared an inquest report. Thereupon the dead body was sent for post mortem examination which was conducted by Dr. A.K.Sahay (P.W.9) along with Dr. Ajit Saran. After holding autopsy, doctor did find following injuries. Swelling over left ear 1” x 1” blood present over left angle of mouth. Upon dissection, parietal bone of skull was found fractured. Thereupon the dead body was sent for post mortem examination which was conducted by Dr. A.K.Sahay (P.W.9) along with Dr. Ajit Saran. After holding autopsy, doctor did find following injuries. Swelling over left ear 1” x 1” blood present over left angle of mouth. Upon dissection, parietal bone of skull was found fractured. Doctor issued post mortem examination report (Ext.1) with an opinion that death was caused on account of coma as a result of head injuries. 3. Meanwhile, the Investigating Officer recorded the statement of the witnesses. After completion of investigation, when the charge sheet was submitted, cognizance of the offence was taken against the appellant and when the case was committed to the court of sessions, the appellant was put on trial. 4. During trial, the prosecution examined as many as ten witnesses. Of them, P.W.2, Kista Devi, mother of the deceased and P.W.4, Kunti Devi, informant, widow of the deceased are the eye witnesses, who have testified that when the deceased came home after cutting grass, he found wall being raised, he asked from the appellant as to why he has closed the passage through which he used to have access to the house. By saying so, he demolished the wall with the help of spade. Upon which the appellant assaulted on the head of the deceased, as a result of which, he fell down. Thereupon he was taken to Sadar Hospital where he died. P.W.1, Devanti Devi, sister of the deceased and the appellant, P.W.3, Samra Hajra, father of the deceased as well as the appellant, P.W.6, Devki Hajra, P.W.7 Talebar Mahto, P.W.8, Lutan Hazra are the hearsay witnesses. P.W.10, Lalan Das happened to be a formal witness, who has proved formal first information report as Ext.2. 5. After closure of the prosecution case, when the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating evidences appearing against him, he denied. 6. Thereafter the court having placed implicit reliance on the testimonies of the eye witnesses, P.W.2 and P.W.4, whose testimonies getting corroboration from the medical evidence did find the appellant guilty for committing murder of the deceased and thereby recorded the order of conviction and sentence which is under challenge. 7. 6. Thereafter the court having placed implicit reliance on the testimonies of the eye witnesses, P.W.2 and P.W.4, whose testimonies getting corroboration from the medical evidence did find the appellant guilty for committing murder of the deceased and thereby recorded the order of conviction and sentence which is under challenge. 7. Mr.Manoj Tandan, learned counsel appearing for the appellant submits that the court though has based its finding upon the testimonies of P.W.2, P.W.4 and also the testimony of P.W.3, father of the deceased but P.W.3, as per his evidence elicited in cross-examination did not see the appellant assaulting the deceased and thereby he cannot be said to be an eye witness. 8. So far as P.W.2 and P.W.4 are concerned, they though are the eye witnesses but can be said to be highly interested and thereby their testimonies should not have been accepted by the trial court in absence of any corroboration being made by other independent witnesses. The other witnesses are the hearsay witnesses and thereby their testimonies are not having any evidentiary value. In that event and also under the fact that the Investigating Officer was not examined by the prosecution, the trial court should not have recorded the order of conviction and sentence. 9. Further it was submitted that even if the reliance is placed on the testimonies of eye witnesses, P.W.2 and P.W.4, the case would never fall within the parameter of Section 300 warranting conviction under Section 302, rather it appears to be a case of culpable homicide not amounting to murder. 10. In this regard it was submitted that admittedly only one lathi blow has been given when the appellant did find wall raised by him being demolished and thereby he could not have had any intention to commit murder of his brother but the trial court did not consider this aspect of the matter in right perspective and thereby judgment of conviction and order of sentence is fit to be set aside. 11. As against this, Mr. Amaresh Kumar, learned counsel appearing for the State submits that even if single blow has been given by the appellant, he cannot escape from the liability of the offence under Section 302 as injury caused by him was sufficient to cause death. Under the circumstances, the trial court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. Under the circumstances, the trial court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. 12. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that according to the testimonies of P.W.2, Kista Devi, mother of the deceased and the appellant and P.W.4, Kunti Devi, widow of the deceased, the deceased on the day of occurrence had gone to the field to bring grass. Meanwhile, the appellant raised wall upto one feet over the space in front of the house of the deceased, as a result of which, access to the house of the informant from front got closed. When the deceased came home after cutting grass, he found wall being raised and therefore, he asked from the appellant as to why he has closed the space through which access was there to the house of the deceased. By saying so, he demolished the wall with the spade which he was having with him. Upon which, the appellant gave one lathi blow over the head of the deceased causing injury, as a result of which, he fell down and when removed to the Sadar Hospital, he succumbed to his injuries. None of the witnesses in their examination-in-chief had said anything that before the appellant assaulted the deceased, altercation had taken place but that fact has been elicited from P.W.2, who in her cross-examination at paragraph 9 has testified that when the deceased came from the field, he had had altercation with the appellant. This fact relating to altercation being taken place between both the brothers have also been testified by P.W.6, P.W.7 and P.W.8, who are the hearsay witnesses. Testimonies of these witnesses may not have evidentiary value but it strengthen the factum as has been testified by P.W.2 in her cross-examination regarding altercation being taken place in between both the brothers. 13. Under the circumstances, we do find that the case would fall within one of the exception of Section 300 of the Indian Penal Code. 14. That apart, we do find that only one blow was given by the appellant which, according to the medical evidence, was sufficient to cause death. But the question crops up as to whether in the facts and circumstances noted above, the appellant can be said to have had intention to commit murder ? 15. 14. That apart, we do find that only one blow was given by the appellant which, according to the medical evidence, was sufficient to cause death. But the question crops up as to whether in the facts and circumstances noted above, the appellant can be said to have had intention to commit murder ? 15. Before proceeding further in this regard, we may refer to a decision rendered in a case of Virsa Singh vs. State of Punjab ( AIR 1958 SC 465 ) wherein it has been observed that the prosecution must prove the following facts before it can bring a case under Section 300, “thirdly”. Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the inquiry proceeds further and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. 16. Their Lordships explained in further in the manner which is being given herein under: “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict on injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” emphasis supplied. 17. Thus, from the passage quotes above, it does appear that once it is proved that injury caused was sufficient to death, it will be presumed that the intention was there unless the evidence or the circumstances warrant an opposite conclusion. 18. Coming to the fact of the case, we may reiterate that admittedly only one injury was inflicted when the appellant did find that wall raised by him has been demolished and the injury which has been inflicted by the appellant was by lathi not a deadly weapon, rather it is being found invariably in the village in every house. 19. Under the circumstances, one can come to the conclusion that the appellant though had assaulted the deceased causing injury resulting into his death but he had had no intention to commit murder. 20. Under the circumstances, the trial court committed illegality in recording the order of conviction and sentence under Section 302 of the Indian Penal Code. 21. Accordingly, conviction recorded under Section 302 and the sentence imposed is hereby set aside. Instead we convict the appellant under Section 304 Part II of the Indian Penal Code and sentence him to rigorous imprisonment for the period already undergone. 22. Consequently, the appellant is directed to be released forthwith if not wanted in any other case. 23. Thus, this appeal is partly allowed to the extent indicated hereinabove.