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2017 DIGILAW 2144 (JHR)

Sanoj Paswan v. State Of Jharkhand

2017-12-12

ANIL KUMAR CHOUDHARY, H.C.MISHRA

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JUDGMENT H.C. Mishra, J. - Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 24.07.2007, passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad, in S.T. No. 293 of 2005, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the sole appellant has been sentenced to undergo rigorous imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Nazma Khatoon, wife of the deceased Abid Hussain, recorded on 23.03.2005, at about 22:40 hours. The informant is not the eyewitness to the occurrence, and according to her fardbeyan, she was informed by Nuresha Khatoon and Amna Khatoon that her husband Abid Hussain was being assaulted by the accused Sanoj Paswan and thereupon she went to the place of occurrence and saw the dead body of her husband. On the basis of the fardbeyan, Jharia (Tisra) P.S. Case No. 119 of 2005 corresponding to G.R. No. 852 of 2005, was instituted for the offence under Section 302 of the Indian Penal Code against the sole accused, and investigation was taken up. After investigation the police submitted the charge-sheet against the accused in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. 5. The prosecution has examined nine witnesses in this case, out of whom, two witnesses, namely, P.W.-1 Nuresha Khatoon and P.W.-2 Amna Khatoon, are the only eyewitnesses to the occurrence. Other material witnesses, including the informant, are only the hearsay witnesses, who had seen the dead body. 6. The evidence of P.W.-9 Dr. Shailendra Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 24.03.2005, shows that only two abrasions on the dead body were there, which are as under:- (i) Abrasion a. 4" x 1" on left side under surface of lower jaw. b. 21/2" x 21/2" on the top of head. On dissection, oesophagus, larynx, trachea, and bronchi, all were found full of mud. b. 21/2" x 21/2" on the top of head. On dissection, oesophagus, larynx, trachea, and bronchi, all were found full of mud. Accordingly, this witness has opined that the death was caused due to asphyxia as a result of choking by mud into respiratory passage. No other cause of death has been shown in the post-mortem report. This witness has identified the post-mortem report to be in his pen and signature, which was marked as Ext.5. 7. Thus, in view of the evidence of the Doctor, the only thing that has to be seen is as to which witness has stated that the accused had assaulted the deceased in such a manner that the respiratory passage of the deceased was choked with mud. 8. There are only two eyewitnesses to the occurrence. P.W.-1 Nuresha Khatoon has stated that on the date of occurrence she saw that the accused Sanoj Paswan was strangulating the deceased Abid Hussain. The accused scolded her to flee away, whereupon she ran away from the place of occurrence to inform the wife of the deceased. This witness has not stated anything to show that there was any action on the part of the accused so as to choke the respiratory passage of the deceased by mud. 9. The only other evidence on this point is of P.W. -2 Amna Khatoon, who has stated that the accused Sanoj Paswan was strangulating the deceased while they were quarrelling, and thereafter he pressed the deceased in the drain. Thereafter the accused Sanoj Paswan took out the deceased from the drain and put him on the field. She has stated that the deceased was fully covered by mud of the drain and he died. This witness was cross-examined by the prosecution, but there is nothing in her cross-examination so as to discredit her testimony. 10. All other material witnesses, including P.W.-4 Haseena Khatoon, the sister of the deceased, P.W.-6 Md. Harun Rashid, the brother of the deceased and P.W.-7 Nazma Khatoon, the wife of the deceased and the informant in the case, are only the hearsay witnesses. All these witnesses reached the place of occurrence, after the occurrence, and they only saw the dead body. 11. Harun Rashid, the brother of the deceased and P.W.-7 Nazma Khatoon, the wife of the deceased and the informant in the case, are only the hearsay witnesses. All these witnesses reached the place of occurrence, after the occurrence, and they only saw the dead body. 11. P.W.-8 Ram Ekbal Singh is the I.O. of this case, who has proved the fardbeyan as Exhibit 3, Inquest Report as Exhibit 4 and he has also proved the endorsements on the fardbeyan and formal FIR, which were also marked as Exhibits. He had found the mark of violence in the drain filled with mud, which is the place of occurrence, and had also found the dead body fully covered by mud. 12. Thus, from the evidence on record, the only evidence, which shows that the deceased was pressed in the mud in the drain, is that of P.W.-2 Amna Khatoon, and her evidence shows that at the time of occurrence, there was quarrel between the deceased and the accused, the accused pressed the deceased in the mud, but again he took him out and put him on the field. This shows there was no intention on the part of the accused appellant to cause the death of the deceased. Had he intended to cause the death of the deceased, he would not have taken him out of the mud. 13. In that view of the matter, we are of the considered view that in the facts of this case, the conviction of the accused appellant for the offence under Section 302 of the Indian Penal Code is fit to be converted into conviction for the offence under Section 304 Part-II of the Indian Penal Code. 14. Accordingly, the impugned Judgment of conviction and Order of sentence dated 24.07.2007, passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad, in S.T. No. 293 of 2005, convicting and sentencing the appellant for the offence under Section 302 of the Indian Penal Code, are modified to the extent that the appellant Sanoj Paswan is found guilty and convicted for the offence under Section 304 Part-II of the Indian Penal Code. We are informed that the accused appellant is already in custody, undergoing his sentence and he has remained in custody for more than 12 years. We are informed that the accused appellant is already in custody, undergoing his sentence and he has remained in custody for more than 12 years. In that view of the matter, even if the accused appellant is sentenced to undergo R.I. for the maximum period of 10 years, for the offence under Section 304 Part-II of the Indian Penal Code, we find that he has already served out of the sentence. Hence, the appellant Sanoj Paswan is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. Consequently, this appeal stands dismissed with the modification in the conviction and sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.