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2016 DIGILAW 906 (JHR)

Budhi Kumar v. State of Jharkhand

2016-05-26

ANANT BIJAY SINGH, VIRENDER SINGH

body2016
By Court : Three appellants namely (I) Budhi Kumar (ii) Teju Kumar and (iii) Putki Devi have preferred the instant criminal appeal being aggrieved and dissatisfied by the judgment of conviction and order of sentence dated 28.02.2007 passed in Sessions Trial No. 530 of 2004 by Sri Rai Satish Bahadur, learned Additional Judicial Commissioner No. XVIth, Ranchi, whereby and whereunder, the learned Additional Judicial Commissioner No. XVIth, Ranchi had held all the three appellants namely, Budhi Kumar, Teju Kumar and Putki Devi guilty and convicted them for the offence punishable under Section 302/34 IPC and was ordered to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/-each and in default of payment of fine, further rigorous imprisonment for one year and if fine amount when realized, shall be paid to the informant. 2. From perusal of record, it appears that the instant criminal appeal was admitted on 26.07.2007 after condoning the delay. Ms. Kavita Singh was appointed as amicus curiae to assist the court. However Mr. G.C. Sahu, Advocate now represents all the appellants. 3. The case of prosecution, as unfolded in the fardbeyan of Savi Devi (P.W.-1), wife of deceased Tara Chand Kumar, resident of Village Brahmni, Kamar Tola, P.S.-Silli, District-Ranchi, recorded by S.I. B.P. Mandal, Officer-in-Charge Silli P.S. on 27.04.2004 at 09:45 hours at the door of the informant alleging therein that at 21:30 hours in the night the husband of the informant Tara Chand Kumar after taking meal had come outside the house to wash his hands, in meanwhile dewar of the informant namely Teju Kumar (appellant) armed with tangi, Putki Devi (appellant), wife of Teju Kumar armed with gupti and Budhi Kumar armed with lathi and further Budhi Kumar assaulted the husband of the informant by means of lathi, consequent thereupon Teju Kumar assaulted the husband of informant by means of tangi on his neck and thereupon Putki Devi assaulted the husband of informant by means of gupti on his chest and other parts of the body. Consequent thereupon the husband of the informant died and on hulla being raised by the husband of the informant, nearby people came whereupon accused persons fled away. Consequent thereupon the husband of the informant died and on hulla being raised by the husband of the informant, nearby people came whereupon accused persons fled away. Motive of the occurrence is that three months prior to the occurrence wild elephants had destroyed the house of the informant, thereupon the informant had constructed a small room adjacent to the room of Teju Kumar and Ganga Kumar and husband of the informant demanded ancestral property caused strained relation between the parties. 4. On the basis of these allegations, Silli P.S. Case No. 40 of 2004 dated 27.07.2004 under Section 302/34 IPC was instituted. It further appears that police after investigation submitted final form and the case was committed to the court of Sessions on 08.12.2004 under the order of Chief Judicial Magistrate, Ranchi. Thereafter, charges were framed under Section 302/34 IPC under the order of Sri C. Tanti, learned Vth Additional Judicial Commissioner on 03.01.2005 and the prosecution in support of his case have examined altogether six witnesses namely, P.W.-1 Sabi Devi (informant); P.W.-2 Ganga Kumar, who has been declared hostile; P.W.-3 Mukund Karmali, who has also been declared hostile; P.W.-4 Dr. Chandra Shekhar Prasad, who conducted post mortem of the dead body of Tara Chand Kumar; P.W.-5 Paglu Kumar, who is a child witness aged nine years and minor son of deceased Tara Chand Kumar; P.W.-6 Lalmuni Kumari, who is also declared hostile. Exhibit -1 – post mortem report of deceased Tara Chand Kumar. 5. Learned counsel for the appellants while assailing the impugned judgment submitted that save and except P.W.-1 & P.W.-5 other witnesses have been declared hostile. I.O. in the instant case has not been examined. Further the formal fardbeyan and the formal FIR have not been proved which cause immense prejudice to the defence and learned counsel for the appellants further submitted that P.W.-1 in her examination-in-chief, in para-1, has stated that Teju Kumar was armed with 'Chaku', Putki Devi armed with 'Bhujali' and Budhi Kumar armed with 'Tangi' and further has stated that Budhi Kumar assaulted the husband of the informant by means of Tangi consequent thereupon, he received injury on the neck and Teju Kumar assaulted the husband of the informant by means of knife on his abdomen, Putki Devi assaulted the husband of the informant by means of Bhujali. Consequent thereupon, he fell down. Consequent thereupon, he fell down. Learned counsel for the appellants submitted that manner of offence as stated by Sabi Devi P.W.-1 in her fardbeyan is that Budhi Kumar was armed with lathi, Teju Kumar armed with Tangi and Putki Devi armed with Gupti. Thereafter, Teju Kumar assaulted the husband of the informant by means of Tangi on his neck, Budhi Kumar assaulted by means of lathi and Putki Devi assaulted the husband of informant by means of Gupti on the chest. It was submitted that there is vital contradictions in statement of P.W.-1 (informant) in her fardbeyan and the evidence given in the court, which falsifies the case of prosecution. Further thumb impression on the fardbeyan is marked as 'X'. It is further submitted while referring to evidence of doctor P.W.-4 Dr. Chandra Shekhar Prasad, who on 27.07.2004 at 16:15 hours conducted post mortem examination on the dead body of Tara Chand Kumar and notied that no injury on the person of the deceased was caused by 'Gupti'. For reference, the injuries noticed by the doctor of autopsy are on record. Incised Wound (i) Linear Cut - 10cm long on front of right shoulder. (ii) Linear Cut – 15cm long on front of right chest. (iii) Linear Cut – 10cm long on frontolateral right abdomen. (iv) 8cm x 2cm x bone deep on front of right neck lower part cutting the soft tissues blood vessels, trachea, esophagus and 5th survical vertebra completely including spinal cord. Lacerated Wound (i) 2cm x 1cm x soft tissue on front of chin. Internal There is fracture of right 2nd to 6th ribs. In para-11 of his cross examination, P.W.-4 stated that he did not find any injury caused by “Gupti”. 6. Learned counsel for the appellants further referred to the evidence of P.W.-5 Paglu Kumar, who is aged 09 years and son of deceased. His competency was tested by the trial court and evidence was recorded. P.W.-5 had stated that Budhi (appellant) was armed with thenga (lathi), Teju was armed with tangi and Putki was armed with gupti. Budhi assaulted the father of P.W.-5 by means of thenga (lathi), Teju assaulted the father of P.W.-5 by means of tangi caused injury on the neck and Putki gave a gupti blow on the abdomen of father of P.W.-5. Budhi assaulted the father of P.W.-5 by means of thenga (lathi), Teju assaulted the father of P.W.-5 by means of tangi caused injury on the neck and Putki gave a gupti blow on the abdomen of father of P.W.-5. In para-9 of his cross-examination P.W.-5 has stated that he had seen the dead body in the morning, but he cannot say what happened in the night. Learned counsel for the appellants also referred to the evidence of P.W.-2 Ganga Kumar, P.W.-3 Mukund Karmali and P.W.-6 Lalmuni Kumari, who have been declared hostile by the prosecution. Learned counsel for the appellants submitted that in absence of non-examination of I.O. and further non-proving of formal fardbeyan and formal FIR on record and in view of contradictory evidence given by P.W.-1 Sabi Devi, in the deposition as also in her fardbeyan, the manner of assault and the nature of injuries received by deceased has become doubtful and it is crystal clear that the prosecution has not been able to prove its case beyond all reasonable doubt against the appellants, hence they are entitled for acquittal. 7. Learned APP appearing for the State, on the other hand, submitted that in the evidence of P.W.-1 there is minor contradiction. P.W.-1, who is informant and wife of deceased, has supported the case in her statement given in the fardbeyan, which is further corroborated by the evidence of Dr. Chandra Shekhar Prasad. So the trial court rightly convicted the appellants. 8. After rescanning the entire evidence once again as discussed hereinabove, we are of the considered view that the prosecution has miserably failed to prove its case beyond any shadow of reasonable doubt qua Budhi Kumar and Putki Devi as their participation in the alleged offence appears to be highly doubtful when tested after examining the evidence of P.W.-1 vis-a-vis the evidence of P.W.-4 the doctor of post mortem. They, thus, deserve to be acquitted of the charge framed against them. However, the prosecution has been able to prove its case to the hilt against the appellant-accused Teju Kumar who had allegedly caused injuries on the person of the deceased with 'Tangi' which ultimately proved fatal. He, thus, deserves to be convicted for the charge under Section 302 IPC simplicitor. 9. The net result is that the instant appeal stands allowed partly. He, thus, deserves to be convicted for the charge under Section 302 IPC simplicitor. 9. The net result is that the instant appeal stands allowed partly. Appellants-accused Budhi Kumar and Putki Devi are acquitted of the charge under Section 302/34 IPC as recorded by the learned trial court vide its impugned judgment, whereas conviction of appellant-accused namely Teju Kumar for the charge under Section 302 IPC is maintained. Appellant-accused Budhi Kumar is stated to be on bail as his substantive sentence was suspended by this Court vide order dated 04.12.2013 as such, he is discharged from his bail bonds. Since appellant-accused Putki Devi, wife of Teju Kumar is stated to be in custody for the last about 12 years she shall be released forthwith, if not required in any other case. However, appellant-accused namely, Teju Kumar shall serve the remainder of his substantive sentence. 10. Registry is directed to intimate the jail authority of the out come of the instant appeal forthwith. The trial court shall also be informed, accordingly.