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2018 DIGILAW 1242 (PAT)

Dina Gond @ Dina Gore v. State of Bihar

2018-08-06

VINOD KUMAR SINHA

body2018
JUDGMENT : Both the appeals arises out of common judgment and order dated 19.8.2003 passed by Sri Anant Prasad Srivastava, Adhoc District & Sessions Judge, Presiding Officer, Ist Addl. Fast Track Court, Siwan in Sessions Trial No.272 of 1996/55 of 2003, by which the appellants Indrasan Gond, Lalan Gond and Hira Lal Gond of Cr. Appeal No.469 of 2003 have been convicted under Section 304 Part II of the Indian Penal Code and sentenced to undergo R.I. for ten years and further been convicted under Sections 447 and 323 of the Indian Penal Code and sentenced to undergo RI for one year in both the counts and fine of Rs.2,000/- with default clause and appellant Dina Gond and Master Gond appellant in Cr. Appeal No.446 of 2003 have been convicted under Sections 447 and 323 of the IPC and sentenced to undergo R.I. for one year in both the counts. 2. The prosecution case in short is that as per the fardbeyan of P.W.5 (informant) Jay Shankar Prasad recorded at Referral Hospital on 14.5.1995 at 12:45 hours, stating therein that at about 9.30 A.M. when his father deceased Satyanarayan Sah Gond and brother Chananjay Gond, sister Gita Kumar were constructing brick wall with the help of Gilawa, the appellants Indrasan Sah, Lalan Gond, Hira Lal Gond, Master Gond and Chhoteylal Gond, Jitendra Gond came there armed with lathi and accused persons asked Satyanarayan Sah as to why he is constructing wall on which Satyanarayan Sah told them that he was getting wall prepared on his own land, on which the accused persons held the father of the informant Satyanarayan Sah and on the exhortation of Indrasan Gond to kill him, accused Indrasasan, Hiralal and Lalan Gond assaulted him by lathi causing injury on the head on his person. It is also alleged that Satyanarayan Sah fell down and other accused persons kept on assaulting on him and brickbats were also pelted. It is the further case that Master Gond, Chhoteylal Gond and Jitendra Gond assaulted with lathi, causing injury on his head and also causing injury on right hand and they also assaulted on his brother, Dhananajy and mother and sister of the informant as such they also sustained injuries at their hands by lathi and brick bats. 3. It is the further case that Master Gond, Chhoteylal Gond and Jitendra Gond assaulted with lathi, causing injury on his head and also causing injury on right hand and they also assaulted on his brother, Dhananajy and mother and sister of the informant as such they also sustained injuries at their hands by lathi and brick bats. 3. On the basis of the aforesaid Fardbeyan, Raghunathpur P.S.Case No.35 of 19995 has been registered and after investigation charge-sheet has been submitted and the cognizance of the case has been taken. 4. Jitendra Gond and Chhoteylal Gond were declared juvenile and their cases have been separated and sent to the Juvenile Board and rest of the accused persons are facing trial in this case and the case has been committed to the court of Sessions which ultimately came to the file of Sri Anant Prasad Srivastava, Adhoc District & Sessions Judge, Presiding Officer, Ist Addl. Fast Track Court, Siwan for trial and disposal. 5. Charges were framed against seven accused persons under Section 302/34, accused Ramwati Devi stands charged under section 337 of the IPC and accused Lalan Gond, Hira Lal Gond , Master Gond, Deena Gond, Ramawati Devi and Gulabo Devi stand charged under Section 447 of the IPC. Further accused Lal Sah, Heerlal Sah, Master Gond and Deena Gond stands charged under Section 323 of the IPC. 6. In order to prove its case the prosecution examined altogether 12 witness and they are : P.W.1 Nanjee Bhagat, P.W.2 Sriram , P.W.3 Mangal Sah, P.W.4 Koushlya Devi, P.W.5. Jay Shankar Pd. Gond, P.W.6 Ram Kishun Bhagat, P.W.7 Geeta Kumari, P.W.8 Doctor Vimal Kumar, P.W.9 Dr. Narendra Pathak, P.W.10 Pramod Kumar Sinha, I.O., P.W.11 Dr. Ashok Kumar Yadav who has conducted the postmortem examination and P.W. 12 Dhananjay Kumar son of the deceased. 7. The defence of the accused person is denial of the charges and of false implication. 8. The learned trial court on conclusion of the trial has convicted the appellants as stated above. However, the learned trial court has acquitted the accused Ramwati Devi and Gulabo Devi from the charges levelled against them. 9. 7. The defence of the accused person is denial of the charges and of false implication. 8. The learned trial court on conclusion of the trial has convicted the appellants as stated above. However, the learned trial court has acquitted the accused Ramwati Devi and Gulabo Devi from the charges levelled against them. 9. Being aggrieved by the judgment, this appeal has been preferred and the grounds taken by the learned counsel for the appellants is that there is land dispute between the parties and there is general allegation of assault against three persons i.e. Indrasan Gond, Lalan Gond and Hiralal Gond causing injury to the deceased, Satya Narayan Sah and the doctor has found only one injury on the head and other injuries on knee and the evidence of the Doctor (P.W.8) also shows that the injuries were simple in nature and the postmortem report shows that apart from the injury, cause of death is septicemia. Apart from that there are contradictions in the evidence of the witnesses as P.W.4 Koushlya Devi has stated that the accused Indrasan Gond, Lalan Gond and Hiralal Gond were carrying lathi, khanti and rod and assaulted by lathi, khanti and rod whereas evidence of other witnesses have disclosed that they were carrying lathi and further submission as advanced by the learned counsel for the appellants is that the prosecution evidence itself shows that the occurrence took place with respect to construction of wall and there is dispute between the parties with respect to construction of wall and he was assaulted by the appellants but they were not carrying any intention to kill him and they had no knowledge that due to the injury caused to the deceased, he will die and the postmortem report also shows that he died due to septicemia but the learned trial court has not considered this aspect of the matter while holding the appellants Indrasan Gond @ Indrasan Sah , Lalan Gond @ Lalan Sah and Hiralal Gond @ Hiralal Sah guilty under Section 304(part II) of the IPC. Further submission is that so far appellant Dina Gond @ Dina Gore and Master Gond @ Master Gore are concerned there is no specific allegation of assault against them and other two persons have been alleged to have assaulted the informant, Jay Shankar Prasad by lathi but in spite of that both the accused Dina Gond @ Dina Gore and Master Gond @ Master Gore have been convicted under Sections 304(Part II), 447 and 323 of the IPC. Learned trial court has not considered the above discrepancies and convicted the appellants as stated above. 10. Heard learned counsel for the State as well as the learned counsel for the informant. They have supported the findings of the guilt and submitted that the evidence of P.Ws. are consistent on the points of assault to the deceased, Satya Narayan Sah by Indrasan Gond, Lalan Gond and Hiralal Gond and the doctor P.W.8 has also found three injuries on the person of the informant and the postmortem report also shows two injuries on the person of the informant and the allegation against the other accused persons is also that they have assaulted by lathi to the informant and the injuries were also found on the person of the informant by the Doctor P.W.9. Further submission is that the deceased died due the aforesaid injuries inflicted upon him as such the conviction of the appellants under Section 304 (part II) of the IPC and Sections 323 and 447 of the IPC is just and proper and does not require any interference by this Court. 11. In the background of the submissions as advanced by the learned counsels for both the parties and perusal of the evidences, it appears that P.W.5 Jay Shankar Prasad Gond is the informant in this case and his evidence discloses that on 14.5.1995 at about 9.30 A.M. his father, mother and sister were constructing wall and the appellant Indrasan Gond, Lalan Gond, Hiralal Gond Choteylal Gond and Jitendra Gond were with lathi and asked his father to stop the construction on which he protested then Indrasan Gond assaulted and thereafter Indrasan Gond and Lalan Gond assaulted on his father on head, leg and back due to that he fell down on the ground and they continued to assault him by lathi. His evidence further discloses that when he went to save his father, Lalan Gond assaulted him by lathi causing injury on his right hand finger and when his mother, brother Dhananjay and sister Geeta went to save him, they were also assaulted by lathi. This witness has been cross examined at length and even in his cross examination he has stated that after 20-22 minutes starting of the work, the quarrel took place. He has been cross examined at para 6 to point out that there was dispute between them with respect to partition of the land. He has also admitted in para 8 that he received injuries and his father also received injuries and further his cross examination disclosed that Indrasan Gond, Lalan Gond and Hiralal Gond assaulted indiscriminately. P.W.4, P.W.7 and P.W.2 are mother, sister and brother of the informant respectively and they also claim to have received injuries and they have also supported the prosecution case. So far assault to his father and also to them by the accused persons are concerned, P.Ws. 1 and 2 and other witnesses have also supported the prosecution case. P.W.6 has been tendered for cross examination. 12. Besides the above facts, it appears that the Doctor P.W.8 Dr. Bimal Kumar has examined Satya Narayan Gore and he has found following injuries on his person caused by the hard and blunt substance and the injuries were simple in nature : “1. i. Lacerated wound over vault of the scalp 1 ½” X ½” X ¼”. ii. Swelling 2” X 2” below right knee. iii. Complain of pain all over the body. Nature of injuries - Simple caused by hard and blunt substance such as iron rod. Injuries were within 8 hours. This injury report is in my pen and signature. It is marked as Ext.-3.” 13. His evidence discloses in part 2 that whether X-ray has been advised or not can be ascertained by B.H.T. This witness has also examined Kausalya Devi and found following injuries on her person and injuries were simple in nature by hard and blunt substance : 1. Lacerated wound 1 ½” X ½ X ¼ over forehead. 2. Complain of pain all over body. 3. Nature of the injury- Simple caused by hard and blunt substance such as lathi. 4. Time within eight hours. 5. This injury report is in my pen and signature – Mark Ext.2/3. Lacerated wound 1 ½” X ½ X ¼ over forehead. 2. Complain of pain all over body. 3. Nature of the injury- Simple caused by hard and blunt substance such as lathi. 4. Time within eight hours. 5. This injury report is in my pen and signature – Mark Ext.2/3. 6. I examined the injured on the requisition made by police Siwan Town.” In his cross examination, this witness has further stated that the injuries may be caused due to fall on the ground. 14. P.W.9 Dr.Narendra Pathak is the another Doctor and he has examined Jai Shankar Gond and found following injuries : i. One lacerated wound size 1” X 1 ½” into scalp deep on right perital region of the scalp. ii. One diffused swelling on right elbow joint posteriorly. iii. One lacerated wound size ½” X ¼” X scalp deep on the pulp of middle finger on right hand. iv. One diffuse swelling with abrasion on left scapular region.” All the injuries were simple in nature caused by hard and blunt substance. 15. P.W.11 is the Doctor (Dr. Ashok Kumar Yadav), who is Associate Professor of the Department of Forensic Medicine and he has conducted the postmortem examination on the dead body of Satya Naraya Sah and found following injuries : i. Two abrasion 1” X 1” each were found on and below the right and left knee. ii. One bruise 2” X 1” was found on the right side of head. After removal of the scalp underline blood clots and fracture of both temporal and parietals were found. After opening the perennial cavity extra dural and sub dural haematoma with syrum & pus were found over the brain. Further details of the injury may be procured from the place where he had been treated previously.” 16. P.W.10 Pramod Kumar Sinha is the I.O. and in this case he has also stated that he inspected the place of the occurrence and found new bricks kept on the wall. In the south there is wall of the house of Lalan Gond and in the south the construction work was going on and it is stated that the occurrence took place on that place. 17. In the south there is wall of the house of Lalan Gond and in the south the construction work was going on and it is stated that the occurrence took place on that place. 17. Considering the evidence as discussed above, it appears that the evidences are consistent on the point of assault by the appellant Indrasan Gond @ Indrasan Sah, Lalan Gond @ Lalan Sah and Hiralal Gond @ Hiralal Sah to the deceased. No doubt P.W.4 has stated that they were armed with lathi, rod and khanti and so far assault by Lalan Gond is concerned the Doctor has found three injuries on the person of the deceased, two on the knee and one on the head and the head injury was found fatal in nature, however, it appears from the evidence of the Doctor P.W.11 that cause of death is dural haematoma and septicemia. Evidence further discloses that the informant and the other injured were assaulted by the appellant Master Gond and other accused persons and so far appellant Dina Gond is concerned, there is no allegation of assault against him. 18. Submission of the learned counsel for the appellants is that the occurrence took place in the spur of the moment and it was not intentional and further assault was made without having any knowledge that due to that he will die and apart from that he has also died due to septicemia, as such conviction of the appellants under Section 304(Part II) of the IPC is not sustainable in the eye of law, however, in view of the fact that there is consistent evidence available on the record showing that the deceased was assaulted by lathi and even after falling on the ground and the Doctor has also found injuries over the person of the deceased, one of them is fatal. In such a situation, it can not be said that they have no knowledge that due to assault he might have died and assault is also on the fatal part of the body. In such a situation, it can not be said that they have no knowledge that due to assault he might have died and assault is also on the fatal part of the body. No doubt it appears that there is only one injury on the person of the deceased on head and three persons is said to have assaulted to him but the deceased has received three injures- two on the knee and one on the head and in such a situation conviction of the appellants Indrasan Gond @ Indrasan Sah, Lalan Gond @ Lalan Sah and Hiralal Gond @ Hiralal Sah under Section 304(Part II) of the IPC as well as under Section 447 and 323 of the IPC appears to be just and proper . 19. Similarly on the basis of evidence as discussed above, conviction of the appellant Dina Gond @ Dina Gore and Master Gond @ Master Gore under Section 447 and 323 of the IPC appears to be just and proper but however, appellant Dina Gond is concerned, there is absolutely no evidence showing any allegation of assault against him, as such his conviction under Sections 447 and 323 of the IPC is set aside and conviction of appellant Master Gond under Section 323 and 447 of the IPC is affirmed. 20. Similarly, conviction of appellant Indrasan Gond @ Indrasan Sah, Lalan Gond @ Lalan Sah and Hiralal Gond @ Hiralal Sah under Section 304 (Part II) is affirmed . 21. Submission of the learned counsel for the appellants is that the occurrence is of the year, 1995 as such 23 years has elapsed and Hiralal Gond has remained in custody for about four yeas and appellant Indrasan Gond has remained in custody for about two years and appellant Lalan Gond has remained in custody for about one year and six months, as such they have sufficiently been punished and appellant Dina Gond has also remained in custody for 12 days, as such their sentences may be reduced to the period already undergone in custody. 22. Considering the allegation of assault by the accused appellants and the occurrence took place due to the dispute between the parties with respect to construction of wall and also considering the fact that the occurrence is 23 years old and it appears that they have remained in custody. 22. Considering the allegation of assault by the accused appellants and the occurrence took place due to the dispute between the parties with respect to construction of wall and also considering the fact that the occurrence is 23 years old and it appears that they have remained in custody. Appellant Hiralal Gond has remained in custody for four years, appellant Indrasan Gond has remained in custody for two years and appellant Lalan gond has remained in custody for 1 ½ years as such no useful purpose will be served if they are kept in custody as such their sentence under Section 304 (part II) of ten years and fine of Rs.2,000/- is reduced to the period already undergone in custody and fine of Rs.2,000/- is increased to Rs.5,000/- they have to pay and in default they have to suffer sentences of R.I. for one year. The amount so deposited shall be paid to the son of the deceased. 23. So far sentences under Section 447 and 323 of the IPC and under Section 304 (part II) is concerned, no separate sentences is being passed. 24. Similarly sentence of appellant Dina Gond is also reduced to the period already undergone in custody under Sections 323 and 447 of the IPC. 25. With the aforesaid modification in conviction and sentences this appeal is disposed of.