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2016 DIGILAW 526 (JHR)

Pradeep Besra v. State of Jharkhand

2016-03-29

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 24th April, 2007 and 25th April, 2007, respectively, passed by learned 1st Additional Sessions Judge, Jamtara in connection with Sessions Case No.91 of 2003/13 of 2004, arising out of G.R. No.210 of 2003, corresponding to Jamtara (Mihijam) P.S. Case No.99 of 2003, whereby the appellant has been held guilty for the offences punishable under Sections 452 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further rigorous imprisonment for seven years under Section 452 of the Indian Penal Code. He has further been directed to pay a fine of Rs.5,000/- to be paid to the dependent of the deceased and in default of making payment of fine further to undergo rigorous imprisonment for three months. Both the sentences so passed were directed to run concurrently. 2. The fact, emerging from the Fardbeyan of Pattamani Baski (P.W.1), recorded on 23rd June, 2003, at 10:00 a.m., at Gandhi Ashram Badlao Foundation, Kewatjali, within Mihijam Police Station, District Jamtara, is that on 22nd June, 2003 at about 4:00 p.m. the appellant armed with spade entered in the room of Bani Sarkar (P.W.5) and started committing mischief by causing damage to fridge and chair, kept in the room. When Ramni Paharin intervened and made a protest against mischief committed, the appellant became furious and gave two spade blows on the head of Ramni Paharin, as a result she sustained injury and fell down. Ramni Paharin was removed to hospital and from there she was shifted to P.M.C.H., Dhanbad for better treatment, but could not survive and died in the afternoon. Initially, on the basis of Fardbeyan of Pattamani Baski, Jamtara (Mihijam) P.S. Case No.99 of 2003 dated 23rd June, 2003 under Sections 452, 324, 307 and 427 of the Indian Penal Code was registered. Later on Section 302 of the Indian Penal Code vide order dated 25th June, 2003 was added. The investigation was carried out and after collecting evidence and material, charge sheet against sole appellant-Pradeep Besra was submitted. Accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Case No.91 of 2003. 3. Later on Section 302 of the Indian Penal Code vide order dated 25th June, 2003 was added. The investigation was carried out and after collecting evidence and material, charge sheet against sole appellant-Pradeep Besra was submitted. Accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Case No.91 of 2003. 3. Charges under Sections 452 and 302 of the Indian Penal Code were framed against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined altogether eleven witnesses, including the doctor, namely, Dr. Shailendra Kumar (P.W.8), who had conducted autopsy on the dead body of Ramni Paharin, Ajay Kumar Singh-Investigating Officer (P.W.9) and Pattamani Baski-informant (P.W.1). The prosecution has further proved the documents like post-mortem report, inquest report, seizure list, Fardbeyan, signatures of witnesses appearing on Fardbeyan as well as on the seizure list. Learned Additional Sessions Judge, at the conclusion of trial, placing reliance on the evidence and documents available on record, held the appellant guilty for the offences punishable under Sections 452 and 302 of the Indian Penal Code and inflicted sentence as indicated above. 4. Initially, Sri Kaushik Sarkhel, Advocate was appearing on behalf of the appellant, but on the last occasion when this appeal was taken up for hearing, he appeared and said that he does not want to pursue the appeal. Considering aforesaid aspect of the matter and keeping in view the period of detention of the appellant in custody, Miss Amrita Banerjee was appointed as Amicus Curiae to assist the Court. 5. Learned Amicus Curiae has assailed the impugned judgment on the ground that Pattamani Baski (P.W.1), who is informant of this case, has not supported the prosecution story brought by her in the Fardbeyan. She has supported the prosecution case to the extent that some occurrence of mischief had taken place in the campus of Badlao Foundation, but she had not witnessed the occurrence of assault caused to the deceased Ramni Paharin. During her cross-examination, she has stated that her signature was obtained on a blank piece of paper. Later what written was not read over to her. It is submitted that P.Ws.2, 3, 6 & 7 are formal witnesses, in whose presence seizure list was prepared and Fardbeyan was recorded. Dilip Pahariya (P.W.4) happens to be son of the deceased. During her cross-examination, she has stated that her signature was obtained on a blank piece of paper. Later what written was not read over to her. It is submitted that P.Ws.2, 3, 6 & 7 are formal witnesses, in whose presence seizure list was prepared and Fardbeyan was recorded. Dilip Pahariya (P.W.4) happens to be son of the deceased. Though he is not an eye-witness, but he has stated that he had seen the appellant fleeing from the place of occurrence. The appellant threw the spade near a tree. The spade thrown by the appellant was picked up by this witness and it was produced before police. It is submitted that Dilip Pahariya says that spade was stained with blood, but the seizure list does not indicate that the spade seized was stained with blood. Bani Sarkar (P.W.5) was posted as Assistant Manager in Badlao Foundation and the occurrence took place in her room. She has stated that the appellant armed with spade entered in her room and caused damage to basket of fridge and two plastic chairs. In the meantime, Charka Pahariya (husband of the deceased) came to the room but he was directed by the appellant to go away to which he followed. Thereafter, the deceased-Ramni Paharin came there and made protest against mischief committed by the appellant. The protest made by Ramni Paharin provoked the appellant and he hurled blow by means of spade on her head, causing injury, and that injury proved fatal. At this juncture, it is urged that the appellant was not having intention to commit murder of Ramni Paharin. The evidences, the circumstances and the overt act committed by the appellant suggest that he had been to the place only to show his anger against P.W.5. With that intention, he had caused damage to certain articles kept in the room. The evidences, documents and circumstances available on record do not indicate that the appellant was having intention to commit murder of Ramni Paharin or he had been to the place with that preparation or with that conviction. Suddenly, Ramni Paharin intervened and made protest which provoked the appellant and he hurled blow by means of spade on her head. The evidences, documents and circumstances available on record do not indicate that the appellant was having intention to commit murder of Ramni Paharin or he had been to the place with that preparation or with that conviction. Suddenly, Ramni Paharin intervened and made protest which provoked the appellant and he hurled blow by means of spade on her head. The evidence available on record, if admitted to be true, it can well be considered that it is not a case of culpable homicide amounting to murder, rather it is a case of culpable homicide, not amounting to murder punishable under Section 304 Part II of the Indian Penal Code. 6. Besides the above, learned A.C. has highlighted further points that Dr. Shailendra Kumar (P.W.8), who had conducted post-mortem examination, did not give conclusive opinion regarding weapon used. The spade produced by P.W.4 was not sent for its forensic examination. There are contradictions in the statements of Ajay Kumar Singh-Investigating Officer (P.W.9). He says that Fardbeyan of Pattamani Baski was recorded by Assistant Sub Inspector of Police-Ghanshyam Prasad, but signature of Ghanshyam Prasad is not appearing anywhere in the Fardbeyan, rather in the heading of Fardbeyan it is indicated that it was recorded by Sub Inspector of Police, Ajay Kumar Singh. Likewise, P.W.9 says, seizure lists were also prepared by Ghanshyam Prasad, but again signature of Ghanshyam Prasad is missing on those seizure lists. Though seizure lists were signed by P.W.9, but it were not prepared by him. It is pointed out that Ghanshyam Prasad was not conducting the investigation and, therefore, he had no authority to prepare seizure list after the investigation commenced. The statements made in the Fardbeyan does not find full corroboration from the statements of Bani Sarkar (P.W.5), who had claimed herself to be an eyewitness. The conduct of P.W.5 does not appear to be genuine. If someone had entered in her room and started causing damage to the articles kept therein, it was expected that she would raise objection or would make protest, but she says that she was silently witnessing the act committed by the appellant. Learned Trial Judge has failed to consider all these aspects of the prosecution case. Therefore, the impugned judgment is liable to be set aside. 7. Learned A.P.P. has opposed the argument and submitted that P.W.1 has supported the occurrence, which had taken place in the room of P.W.5-Bani Sarkar. Learned Trial Judge has failed to consider all these aspects of the prosecution case. Therefore, the impugned judgment is liable to be set aside. 7. Learned A.P.P. has opposed the argument and submitted that P.W.1 has supported the occurrence, which had taken place in the room of P.W.5-Bani Sarkar. The informant has stated that some altercation had taken place between appellant-Pradeep Besra and P.W.5. At that point of time, many people had assembled. Ramni Paharin had intervened to pacify the dispute. Thereafter, exchange of hot words had taken place between Ramni Paharin (deceased) and Pradeep Besra (appellant). Thereafter, she left the place. Up to this juncture, the informant has supported the prosecution case and she has turned hostile only on the point of assault caused by appellant to deceased-Ramni Paharin. Learned A.P.P. has further pointed out that on 23rd June, 2003 Ramni Paharin died in P.M.C.H., Dhanbad and she was having injuries on her head. On examination, parietal bones were found fractured. Bani Sarkar (P.W.5) is an eye-witness to the occurrence and she has fully supported the prosecution case and has said that the appellant had caused assault to deceased Ramni Paharin on her head by means of spade. Dilip Pahariya (P.W.4) had seen the appellant fleeing from the place of occurrence. He has further stated that the appellant threw the spade and fled away and that spade was produced by P.W.4 before the police and, accordingly, seizure list was prepared, which has been proved. It is contended that the prosecution has well proved its case beyond shadow of all reasonable doubts and there is no merit in this appeal. 8. We have considered the rival submissions and perused the lower court record and also gone through the impugned judgment. We find that the informant has supported the occurrence to the extent of mischief committed by the appellant in the room of P.W.5. She has further stated that Ramni Paharin intervened whereafter exchange of hot words had taken place between the appellant and the deceased. Admittedly, she did not support later part of the occurrence in which she has stated in her Fardbeyan that the appellant caused injury to deceased on her head by means of spade, but then Bani Sarkar (P.W.5), who is an eye-witness, has supported the prosecution case. The place of occurrence is the room of Bani Sarkar, situated within the campus of Gandhi Ashram Badlao Foundation. The place of occurrence is the room of Bani Sarkar, situated within the campus of Gandhi Ashram Badlao Foundation. According to the evidence of P.W.5, the appellant entered in her room armed with spade and caused damage to chairs and basket of fridge. Ramni Paharin reached to the room of P.W.5 and made protest against the mischief committed by the appellant and this protest made by the deceased provoked the appellant and he hurled spade blow on her head. The injury so caused proved fatal. The ocular version finds support from the evidence of Dr. Shailendra Kumar (P.W.8) and postmortem report. The spade used for causing injury was produced by P.W.4 and a production-cum-seizure list was prepared. P.W.11 has produced that spade before the Court and that has been marked as Material Exhibit-1. 9. The fact that the appellant caused injury to deceased by means of spade has been proved by the prosecution witnesses. From the evidence available on record, it is clear that the appellant was not intending to commit murder and he had not been to the place of occurrence with that intention. The intention of the appellant which could be gathered from the evidence available on record may be that he had gone to the place of occurrence to show his anger against P.W.5 and to show that he had caused damage to certain articles kept in the room. When the deceased tried to resist him, the appellant got provoked and hurled blow by means of spade on her head. Admittedly, spade is not a weapon used for committing offence, rather it is an instrument used for agriculture purpose. The appellant has also remained in custody for more than 12 years. 10. Considering all these aspects of the matter, we feel inclined to convert the conviction and sentence from that of Section 302 IPC to Section 304, Part-II IPC. Accordingly, sentence of life imprisonment inflicted under Section 302 IPC is also converted to one under Section 304 Part II IPC and sentence of 10 years is inflicted. The appellant is further held guilty for the offence punishable under Section 452 IPC and sentence so passed is upheld. Accordingly, sentence of life imprisonment inflicted under Section 302 IPC is also converted to one under Section 304 Part II IPC and sentence of 10 years is inflicted. The appellant is further held guilty for the offence punishable under Section 452 IPC and sentence so passed is upheld. Since the appellant has served out the sentence by remaining in jail for more than 12 years in connection with Sessions Case No.91 of 2003/13 of 2004, corresponding to G.R. No.210 of 2003, arising out of Jamtara (Mihijam) P.S. Case No.99 of 2003, he is directed to be released forthwith, if not wanted in any other case, and for that the convicting/successor court shall issue appropriate direction, if needed. 11. Accordingly, this appeal stands disposed of with the above modification in the judgment of conviction and sentence. Appeal disposed of.