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2016 DIGILAW 1409 (JHR)

Hiro Soren, son of Jhapar Soren v. State of Bihar

2016-09-22

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Virender Singh, J. In all, three accused namely, Hiro Soren and Debilal Soren, sons of Jhapar Soren and their father Jhapar Soren faced the trial for charge under Sections 302/34 IPC for allegedly causing death of Shivlal Soren, husband of P.W. 5, the first informant on 02.07.1986 in Jamkanali, falling within Police Station-Amrapara, in which connection the First Information Report was lodged by his wife P.W. 5 on 08.07.1986 after the delay of six days in the said police station being, Amrapara P.S. Case No. 13 of 1986 under Section 302/34 IPC. Virtually the case of the prosecution is hinging upon the statement of the sole eyewitness (P.W.5, the wife of the deceased) whose version has been believed by the learned trial court resulting into conviction of all the three accused under Section 302/34 IPC vide impugned judgment dated 04.03.1991 of Additional Sessions Judge, Pakur. Aggrieved thereof, the present appeal. 2. The case of the prosecution in brief, as one finds from the first information lodged by the P.W.5, is that, on the fateful day i.e. on 02.07.1986 at about 5 P.M. accused Hiro Soren asked the deceased (Shivlal Soren) as to who had washed the neem seeds in his lowland and when the deceased denied doing that, the accused challenged him to come out from the courtyard and when the deceased came out Hiro Soren put him down to the ground. It is the case of the prosecution that at the exhortation of Jhapar Soren, Debilal Soren assaulted Shivlal Soren with lathi at the right side of his chest and before he could give another blow to the deceased, P.W. 5 caught hold of the lathi. Thereafter, all the three accused persons snatched the lathi from P.W.5 and fled away from the scene of occurrence. P.W.5 then brought her husband to the house and on the next day with the help of one Parmeshwar Hansda (P.W.2) took the deceased to Mission Hospital where he was admitted and treated. On 08.07.1986, the injured succumbed to the injuries in the hospital. It is after his death that the case was registered which after the investigation culminated in filing of the challan against all the three accused for the charge under Section 302/34 IPC, for which they faced the trial and stand convicted. 3. In all, prosecution has examined six witnesses. P.W.1 Dr. It is after his death that the case was registered which after the investigation culminated in filing of the challan against all the three accused for the charge under Section 302/34 IPC, for which they faced the trial and stand convicted. 3. In all, prosecution has examined six witnesses. P.W.1 Dr. Sheo Kumar Gupta who conducted the autopsy on the dead body of the deceased found froth coming out from the mouth of the deceased. According to him it was a decomposed body but at the same time he noticed presence of rigor mortis over the dead body. One operational scar on abdomen, size 5”x1½”, and black and blue mark on the right side of the thorax were noticed by him. P.W.2 Parmeshwar Hansda took the deceased to the hospital along with his wife. P.W. 3 Nil Muni Soren was declared hostile whereas, P.W.4 Chunu Tudu was tendered witness, therefore, these two witnesses are of no advantage to the prosecution. P.W. 5 is the star witness of the prosecution and she is the wife of the deceased. She, in fact, supported the prosecution case in one manner or the another and stated that Hiro Soren was fighting with her husband and in the meantime, accused Debilal Soren came with lathi and assaulted the deceased on his rib. She further stated that Hiro Soren and Jhapar Soren were also present with Debilal Soren and when she caught hold of the lathi they assaulted her also and fled away. It needs to be mentioned here that P.W.5 has not been medically examined after the occurrence, till she lodged the report. 4. P.W.6 Subodh Kumar Banerjee is the clerk of the advocate and he proved the formal FIR and fardbeyan of the first informant. In fact, the judges need training in this regard. What is noticed in many cases is that, even for the purpose of proving the postmortem report a clerk is produced from the concerned department or the postmortem reports are proved by producing the clerk of the advocate. We deprecate this procedure adopted by the trial judges, who in fact need training in this regard. 5. Admittedly, the case of the prosecution is banking upon the evidence of sole eyewitnessP.W.5, wife of the deceased. We deprecate this procedure adopted by the trial judges, who in fact need training in this regard. 5. Admittedly, the case of the prosecution is banking upon the evidence of sole eyewitnessP.W.5, wife of the deceased. Her evidence has to be seen with utmost care and caution for two reasons, firstly, that she is related to the deceased being his wife and secondly, that there is considerable delay of six days in lodging the First Information Report which was lodged after the death of the deceased. In this eventuality chances of colorful version putting forth cannot be ruled out. What appears from the record is that three persons of one family are roped in this case including, the father (Jhapar Soren) who happens to be of 85 years now. It was a case of one injury in the abdomen which has been attributed to the appellant Debilal Soren. Admittedly, Jhapar Soren father of Hiro Soren has not caused any injury to the deceased. So far as, the accused Hiro Soren is concerned, the part attributed to him is that he threw the deceased on the ground and started assaulting him. We do not find any injury which was result of the part attributed to the accused Hiro Soren. Therefore, participation of accused Hiro Soren and Jhapar Soren seems to be doubtful and the considerable delay of six days in lodging the First Information Report by P.W.5, wife of the deceased has resulted in their false implication cannot be ruled out. We, thus, while extending benefit of doubt, acquit them of the charges framed against them. 6. Let us now advert to the part attributed by Debilal Soren. Admittedly, he was armed with lathi and caused injury on the right side of the abdomen. This according to the prosecution has proved fatal. Surgical operation is also done because of the injury attributed by Debilal Soren. The other part which is worth noticing is that on the date of occurrence i.e. on 02.07.1986, the occurrence took place on a trivial dispute. Keeping in view the totality of the facts and circumstances, we are of the opinion that, it is not a case which would fall within the mischief of Section 302 IPC, and instead it deserves to be diluted to Section 304, Part II, IPC qua Debilal Soren. Keeping in view the totality of the facts and circumstances, we are of the opinion that, it is not a case which would fall within the mischief of Section 302 IPC, and instead it deserves to be diluted to Section 304, Part II, IPC qua Debilal Soren. Resultantly, we set aside his conviction for the charge of Section 302/34 IPC as recorded by the learned trial court and convert it to one under Section 304, Part II, IPC. 7. With regard to quantum of sentence, it has been brought to our notice by the learned counsel for the appellants that he is in custody since March 1987 and remained in custody throughout the trial and ultimately granted the concession of suspension of sentence during the pendency of the appeal vide order dated 03.05.1994. The appellant has, thus, undergone about seven years' imprisonment including, the period of incarceration as under trial prison. In our considered view, the ends of the justice would adequately be met, if the appellant no.3 namely, Debilal Soren is sentenced to the period of incarceration already undergone by him for committing offence under Section 304, Part II, IPC. Ordered accordingly. 8. The net result is that, the appeal on hand is partly allowed, acquitting Hiro Soren and Jhapar Soren of the charges framed against them and diluting the conviction and sentence qua Debilal Soren, as indicated hereinabove. All the three accused shall now be discharged of their bail bonds furnished by them during the pendency of the instant criminal appeal. Appeal partly allowed.