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Jharkhand High Court · body

2015 DIGILAW 984 (JHR)

Rajballabh Sardar v. State of Jharkhand

2015-08-18

PRAMATH PATNAIK, R.R.PRASAD

body2015
Judgment The appellant was put on trial on the charge of committing murder of his uncle Gumman Sardar. The Court having found the appellant guilty convicted him for the offence punishable under Section 302 of the Indian Penal Code vide its judgment dated 29.06.2005 passed in Sessions Trial No.02 of 2001 and sentenced him vide its order dated 30.06.2005 to undergo imprisonment for life and to pay a fine of Rs.500/-with a default clause to undergo simple imprisonment for 15 days. 2. The case of the prosecution, is that, on 17.03.2000 at about 7.00 p.m. while the informant-Suhagini Sardar (P.W.-3), the widow of the deceased-Gumman Sardar was inside the house, she heard some noise coming from outside the house. Upon which, she came out and saw the appellant assaulting her husband-Gumman Sardar with Tangi, as a result of which the deceased having sustained injury fell unconscious. On the next day i.e. on 18.03.2000 at about 6.00 a.m when R.J. Bhagat-S.I of Dumaria Police Station came to the house of the informant, he recorded fardbeyan of the informant-Suhagini Sardar, wherein she narrated the same story that Rajballabh Sardar had assaulted her husband. Further she made statement that on the day of occurrence Haldhar Sardar, the father of this appellant when asked the appellant to do some work the appellant became enraged. He in order to kill his father chased him by having a tangi with him. In that course, Haldhar Sardar came running to her house where her husband Gumman Sardar (deceased) tried to rescue his brother-Haldhar Sardar on account of that the appellant assaulted her husband, Gumman Sardar, as a result of which he sustained severe injuries. On such fardbeyan, case was registered under Sections 307 and 326 of the Indian Penal Code. But, when the deceased died, the case was also registered under Section 302 of the Indian Penal Code. 3. The I.O. having taken over the investigation of the case did hold inquest on the dead body of the deceased and prepared an inquest report (Exbt-2). Thereupon, the dead body was sent for post mortem examination which was conducted by doctor Om Shankar-P.W.-10. On holding autopsy on the dead body of the deceased, the doctor did find following injuries:- (i) Sharp cut wound of size 5 c.m x 1 c.m x bone deep. Thereupon, the dead body was sent for post mortem examination which was conducted by doctor Om Shankar-P.W.-10. On holding autopsy on the dead body of the deceased, the doctor did find following injuries:- (i) Sharp cut wound of size 5 c.m x 1 c.m x bone deep. The shape of the wound was of type ‘7’ and this wound was on left forehead between left eyebrow and hair. (ii) Sharp cut wound of size 8 c.m x 2 c.m x oesophagus deep on the left side of the neck from the left angle of jaw to right chin. (iii) Sharp cut wound 1.5 c.m x 0.8 c.m x bone deep on left chin near lip. The doctor issued post mortem report (Exbt-3) with an opinion that the death was caused due to haemorrhage and shock on account of the aforesaid injuries caused by sharp cutting weapon. 4. Meanwhile, the I.O recorded the statement of the witnesses. On completion of the investigation, when the charge sheet was submitted, the Court took cognizance of the offence and when the case was committed to the Court of Sessions, the appellant was put on trial, during which, the prosecution in order to prove the charge examined 10 witnesses. Of them, P.W.-1-Haldhar Sardar, the father of the appellant is the eye witness who has testified that when he asked his son to do work he became quite enraged and then he out of anger picked up a Tangi and chased to kill him. He ran away from there and came to the house of his younger brother-Gumman Sardar (deceased) who tried to intervene in the matter, during which, the appellant assaulted him with Tangi causing injury resulting into his death. Rest of the witnesses, P.W.2-Bhola Sardar (uncle of the appellant), P.W.-3 Suhagini Sardar (informant), P.W.4-Mizari Sardar, P.W.5-Duja Sardar, P.W.6-Niva Ram Sardar, P.W.7-Kisun Deogam, P.W.8-Puran Sardar are the hearsay witnesses, who derived their knowledge either from Haldhar Sardar-P.W.1 or from other persons. Even the informant, who as per the fardbeyan appears to be the eye witness turns out to be a hearsay witness. 5. Thus, the whole case of the prosecution hinges upon the testimony of P.W.-1, who in his evidence, as stated above, has testified that it was the appellant who inflicted injuries on his younger brother-Gumman Sardar (deceased) by Tangi. Even the informant, who as per the fardbeyan appears to be the eye witness turns out to be a hearsay witness. 5. Thus, the whole case of the prosecution hinges upon the testimony of P.W.-1, who in his evidence, as stated above, has testified that it was the appellant who inflicted injuries on his younger brother-Gumman Sardar (deceased) by Tangi. He has also testified about the circumstances under which the appellant did give Tangi blows upon the deceased. The deceased having received injuries, as has been found by the doctor, died on account of the shock and haemorrhage and thereby, the prosecution has been able to establish that appellant did assault the deceased by Tangi as a result of which the deceased died. 6. But the question does arise as to whether the appellant had had any intention to commit murder? 7. Before coming to any conclusion, we would be referring 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). First, 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 enquiry 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. 8. Their Lordships explained it further in the manner which is being given hereinunder:- “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. 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 an 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] 9. Coming to the fact of the case, we may reiterate that as per the evidence of P.W.-1, the appellant intended to kill him when he asked him to do some work. Seeing the appellant quite enraged having tangi, he ran to the house of deceased-his younger brother where the deceased intervened in the matter. This fact also finds support from the testimony of the other witness-P.W.-3. On such intervention, the appellant gave Tangi blows over the deceased. This fact amply indicates that the appellant had had no intention to kill his uncle and thereby the case falls within the parameters of Section 304 (Part-II) of the Indian Penal Code. The trial Court does not seem to have taken note of this aspect of the matter and, thereby, committed illegality in recording the judgment of conviction and order of sentence under Section 302 of the Indian Penal Code and hence, the appellant instead of being convicted under Section 302 of I.P.C is convicted for the offence punishable under Section 304 (Part-II) and is sentenced to the period already undergone in custody. 10. With the aforesaid modification in the judgment of conviction and order of sentence, this appeal is allowed but in part. 11. The appellant is directed to be released forthwith if not wanted in any other case.