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2016 DIGILAW 762 (JHR)

Lekho Rai v. State of Jharkhand

2016-05-03

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D. N. Upadhyay, J. 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 29th March, 2008 and 31st March, 2008, respectively, passed by learned Additional Sessions Judge, F.T.C., Koderma in connection with Sessions Trial No.67 of 2005, corresponding to G.R. No.162 of 2003, arising out of Markacho P.S. Case No.22 of 2003, whereby the appellant has been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-and in default of making payment of fine, further to undergo rigorous imprisonment of one year. 2. The prosecution case, as it appears from the Fardbeyan of Shanti Devi, recorded on 11th April, 2003, at 17:00 hours, at Domchanch O.P., in brief, is that on 9th April, 2003 in the morning at 8:00 a.m. the appellant with his associates, who are named in the first information report, armed with Lathi and axe, entered into the house of the informant and caused assault to her husband-Anhach Rai. It is specifically alleged that the appellant caused assault to deceased by means of Lathi on his head. When the informant intervened, she was also subjected to assault by the appellant and his associates. The appellant and his associates after seeing the people coming to the house of the informant fled away from the place. It is further disclosed that Narayan Rai (P.W.2), son of the informant, had gone to borrow money from moneylender (MAHAJAN) for treatment of his injured father, but he was asked to collect money next day. On the next day, he received money from the said moneylender, but till then his father died in the evening at 5:00 p.m. Thereafter, on 11th April, 2003 Fardbeyan of Shanti Devi (P.W.6) was recorded and a case, being Markacho P.S. Case No.22 of 2003 dated 12th April, 2003 under Section 302/34 of the Indian Penal Code against the appellant and other named accused was registered. The police after due investigation submitted charge sheet. Accordingly, cognizance was taken and case was committed to the court of sessions and registered as Sessions Trial No.67 of 2005. 3. Two of the accused persons, namely, Pritam Rai and Kailash Rai had absconded and they could not be put on trial. The police after due investigation submitted charge sheet. Accordingly, cognizance was taken and case was committed to the court of sessions and registered as Sessions Trial No.67 of 2005. 3. Two of the accused persons, namely, Pritam Rai and Kailash Rai had absconded and they could not be put on trial. One of the accused, namely, Chandar Rai has been declared juvenile, as a result his case was split up from the remaining accused. 4. Charge under Section 302/34 IPC against the appellant was framed to which he pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution has examined altogether eight witnesses, including the informant and the doctor, who conducted postmortem on the dead body of the deceased. Learned Trial Judge, placing reliance on the evidences and documents available on record, held the appellant guilty for the offence punishable under Sections 302/34 IPC and inflicted sentence as indicated above. 5. Learned counsel appearing for the appellant at the very outset has submitted that Anhach Rai died due to negligence committed by the informant and her family members. The deceased was not removed to hospital immediately after the incident took place. The plea taken by the informant (P.W.6) and her son (P.W.2) that due to lack of money the deceased could not be taken to hospital, has no legs to stand. They could have taken the deceased to nearby government hospital for his treatment, but they did not do so and kept Anhach Rai in injured condition in the house itself. Not only that they were so negligent in their conduct that they did not inform the police after the occurrence. The first information report was lodged only after death of Anhach Rai and that too on the following day after his death. It is submitted that even if the evidence on record, as brought by the prosecution, is admitted to be true, no case under Section 302 IPC is made out. According to the statement of the informant (P.W.6), the appellant and his associates were armed with Lathi, axe etc. and they caused assault of Anhach Rai after committing house trespass. At best, it could be said that the appellant and his associates had committed house trespass with preparation to cause assault. According to the statement of the informant (P.W.6), the appellant and his associates were armed with Lathi, axe etc. and they caused assault of Anhach Rai after committing house trespass. At best, it could be said that the appellant and his associates had committed house trespass with preparation to cause assault. The prosecution has not introduced intervening circumstance which compelled the appellant and his associates to flee away from the place without committing murder of Anhach Rai. Had there been intention to commit murder the appellant and his associates could have easily succeeded. All the witnesses have clearly admitted in their depositions that they reached to the place of occurrence after the occurrence of assault was over and the appellant with his associates had fled away from the place. They have admitted that they reached to the place of occurrence either after 15 minutes or after half an hour. This is sufficient to infer that the appellant was not having intention to commit murder and the intention might be to cause assault to Anhach Rai for the motive as assigned by the informant and other witnesses. Learned counsel has further pointed out postmortem report and injuries described by the doctor (P.W.7). Injury No.1-lacerated wound was caused on the mid of skull 1” x 1/2” x bone deep with blood clot. Injury No.2-lacerated wound on left side of perital region on skull 1½” x 1/2” x bone deep with blood clot. Left perital bond was found fractured. The fracture so detected could be connected with Injury No.2. If the evidence of P.W.6 is admitted to be true, the appellant had inflicted only one Lathi blow on the head of the deceased. The doctor has not said nor any suggestion was given that injuries caused to the deceased were sufficient in ordinary course of nature to cause death. Contrary to that P.W.2, who is son of the deceased, and P.W.7-Dr. Ram Nath Prasad, who conducted postmortem examination, have admitted that life of deceased could have been saved, had he been provided immediate treatment. 6. Learned counsel has tried to impress upon the Court that the appellant was not having intention to commit murder, rather he had been to the place of occurrence to cause hurt or grievous hurt. Ram Nath Prasad, who conducted postmortem examination, have admitted that life of deceased could have been saved, had he been provided immediate treatment. 6. Learned counsel has tried to impress upon the Court that the appellant was not having intention to commit murder, rather he had been to the place of occurrence to cause hurt or grievous hurt. Even assuming it to be correct that companion accused were armed with Tangi and fracture injury was caused on the skull, the appellant would be liable for conviction for the offence punishable under Sections 325 and 326/34 of the Indian Penal Code. He has remained in custody for about thirteen years. Under such circumstances and in view of the evidence available on record, the conviction so recorded under Section 302/34 of the Indian Penal Code can well be altered under Sections 325 and 326/34 of the Indian Penal Code. 7. Learned APP opposed the argument and submitted that P.Ws.1 to 4 had seen the appellant and his associates fleeing from the place after committing the offence. P.W.6 is an eye-witness to the occurrence. She is wife of the deceased and she was well present in the house and she was also subjected to assault. The appellant and his associates caused injury to the deceased on his head, which is vital part of the body and perital bone of the deceased got fractured due to blow inflicted. There is no merit in this appeal and the same is liable to be dismissed. 8. Submissions advanced by learned counsel for the appellant find support from the evidence available on record. Admitted case of the prosecution is that except P.W.6 no witness was present in the house at the time of assault and there was no intervening circumstance which compelled the appellant to leave the place before causing death of deceased-Anhach Rai. The evidence brought on record by the prosecution, if admitted to be true, it makes out a case that the appellant and his associates armed with Lathi and axe entered in the house of the informant and caused assault to deceased on his head. It can be said that the appellant had committed house trespass with preparation to cause assault. It is not a case that the appellant and his associates killed Anhach Rai at the spot, rather the case in hand is that they caused assault and fled away. It can be said that the appellant had committed house trespass with preparation to cause assault. It is not a case that the appellant and his associates killed Anhach Rai at the spot, rather the case in hand is that they caused assault and fled away. Further admitted case of the prosecution is that Anhach Rai after sustaining injury was never removed to hospital for treatment and he was kept in the house itself. The evidences on record do not indicate that any sort of medical treatment, even first aid was given to injured. One of the witnesses, namely, Banwari (P.W.4) has stated that some sort of medical treatment was provided to Anhach Rai by a local doctor, but P.W.2 who happens to be son of the deceased and P.W.6 who happens to be wife of the deceased have not said that injured Anhach Rai was ever provided any sort of medical treatment before his death. Poverty might be the reason for not taking the deceased to a competent doctor, but they should have removed the injured to a Government Hospital for his treatment, but it was not done. Narayan Rai (P.W.2), who happens to be son of the deceased, has himself admitted in Para-4 of his deposition, because no treatment was provided to the deceased, he died. 9. Considering all these aspects of the matter, evidences available on record and the argument advanced, we feel no hesitation to hold that the appellant and his associates were not having intention to commit murder, rather they had committed house trespass to cause hurt either simple or grievous. Since grievous injuries were caused and for causing those injuries Lathi and axe were used, the appellant is hereby held guilty for the offence punishable under Sections 325 and 326/34 IPC. 10. In the result, the sentence of life imprisonment inflicted under Section 302/34 IPC is altered to that of period already undergone in custody for the offence punishable under Section 326/34 IPC. So far as Section 325 IPC is concerned, the appellant has been inflicted sentence to undergo rigorous imprisonment for five years. Since the appellant has already served out the modified sentence, as indicated above, in connection with Sessions Trial No.67 of 2005, 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. Since the appellant has already served out the modified sentence, as indicated above, in connection with Sessions Trial No.67 of 2005, 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. This appeal stands disposed of.