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2018 DIGILAW 13 (JHR)

Shital Ram v. State of Jharkhand

2018-01-03

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the Judgment of conviction dated 27.5.2009 and Order of sentence dated 30.5.2009, passed by the learned Additional Sessions Judge-I, Dhanbad, in S.T. No. 23 of 1997, whereby, both the appellants have been found guilty and convicted for the offences under Sections 302, 323/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo rigorous imprisonment for life and fine of Rs. 5,000/- each for the offence under Sections 302/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year and fine of Rs. 1,000/- each for the offence under Sections 323/34 of the Indian Penal Code. Both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of one Bhagwan Ram, son of the deceased Ramji Ram, recorded on 30.6.1996, at about 10:30 p.m., in Nutan Nursing Home, Godhar, in which it is stated that the accused Umesh Ram had made Laxman Ram, the brother of the informant, to drink liquor which was being objected by the informant as the doctor had forbidden him from taking liquor. It is alleged that there was an altercation. Thereafter, Umesh Ram called his brothers including Shital Ram, Ramdeo Ram, Shyamdeo Ram. All of them came there with lathi and assaulted the informant and his brother Laxman Ram, causing injuries on their heads and other parts of the body. When his father Ramji Ram tried to intervene, he was also assaulted by lathi by the accused Umesh Ram and Shital Ram on his back and forearm, due to which he fell down and thereafter both the accused persons scaled upon the chest of his father and pressed the same with feet due to which his father started vomiting and became unconscious. Thereafter, he was brought to nursing home where he was undergoing treatment. On the basis of the fardbeyan of the informant, Kenduadih P.S. Case No. 54 of 1996 corresponding to G.R. No. 1898 of 1996, was instituted for the offences under Sections 341, 323, 307/34 of the Indian Penal Code, against the named accused persons, including these appellants, and investigation was taken up. On the basis of the fardbeyan of the informant, Kenduadih P.S. Case No. 54 of 1996 corresponding to G.R. No. 1898 of 1996, was instituted for the offences under Sections 341, 323, 307/34 of the Indian Penal Code, against the named accused persons, including these appellants, and investigation was taken up. After two days of the occurrence, the father of the informant died during treatment and accordingly, Section 302 of the Indian Penal Code was also added. During investigation, the police arrested the accused Umesh Ram, Shital Ram and Ramdev Ram, and submitted charge-sheet showing the other two accused as absconders. 4. After commitment of the case to the Court of Session, charge was framed against the three accused persons, including these appellants for the offence under Sections 323, 302/34 of the Indian Penal Code, and upon the accused person's pleading not guilty and claiming to be tried, they were put to trial. It appears from the impugned Judgment that in course of trial, the accused Ramdev Ram absconded and his trial was split up. 5. In course of trial, the prosecution has examined 8 witnesses in this case, including the Investigating Officer and the Doctor, who had conducted the post mortem examination on the dead body of the deceased. No evidence was adduced on behalf of the defence. 6. P.W.3-Bhagwan Ram is the informant in the case. This witness has stated that the occurrence took place about 2½ years ago at about 9 p.m. in the night. Umesh Ram got his brother drunk, whereupon he scolded Umesh Ram as to why he got his brother drunk, due to which there was some altercation between the informant and Umesh Ram and Shital Ram. Thereafter Umesh Ram, Shital Ram, Ramdev Ram, Shyamdeo Ram and Shekhar brought lathi from their house and assaulted the informant and his brother Laxman Ram, causing injuries on their heads and other parts of the body. When the parents of the informant came there to their rescue, the mother was pushed away by Umesh Ram due to which she fell down. Thereafter Umesh Ram and Shital Ram assaulted his father by lathi due to which his father fell down and thereafter both of them scaled upon the chest of his father and pressed his chest with their feet, due to which he started vomiting and thereafter the accused persons fled away. Thereafter Umesh Ram and Shital Ram assaulted his father by lathi due to which his father fell down and thereafter both of them scaled upon the chest of his father and pressed his chest with their feet, due to which he started vomiting and thereafter the accused persons fled away. This witness has further stated that his father had become unconscious and he was bringing his father to the Police Station, but looking to his condition, he was directly brought to the hospital, where the treatment started. The police reached the hospital and recorded his fardbeyan on which he put his thumb impression. Thereafter, his father was brought to Sadar Hospital, Dhanbad, but he died. He has identified the accused persons present in the Court. This witness was put to extensive cross-examination, but there appears to be nothing of much importance, except that he has reiterated that his father was assaulted by these two accused persons. 7. P.W. 1-Laxman Ram, P.W. 2 Lakhan Ram, the father-in-law of the informant, P.W. 4-Jaimanti, mother of the informant and wife of the deceased, P.W.5 Rajeshwar Das and P.W. 7-Devya Devi, daughter of the deceased, have also supported the prosecution case as eyewitnesses to the occurrence. All these witnesses have stated that after the altercation, the accused persons assaulted the informant Bhagwan Ram and his brother Laxman Ram, causing injuries on them, and when their father came to their rescue, he was assaulted by lathi due to which he fell down and both the accused persons scaled on the chest of the deceased and pressed the same by feet due to which he started vomiting and became unconscious. Thereafter, he was brought to hospital and after two days he died in course of treatment. P.W.1-Laxman Ram, P.W.2-Lakhan Ram, P.W.3-Bhagwan Rain, informant and P.W.4-Jaimanti, wife of the deceased, have not stated that these appellants had assaulted the deceased by lathi on his head, whereas P.W. 5 Rajeshwar Das and P.W. 7 Devya Devi have stated that the assault was made on the head of the deceased also. 8. P.W. 6-Dr. Shailendra Kumar had conducted the post mortem examination on the dead body of the deceased on 3.7.1996, and had found the following ante mortem injuries on the dead body of the deceased:- (i) Lacerated wound 1" x ¼" x skin deep on the back of left elbow. 8. P.W. 6-Dr. Shailendra Kumar had conducted the post mortem examination on the dead body of the deceased on 3.7.1996, and had found the following ante mortem injuries on the dead body of the deceased:- (i) Lacerated wound 1" x ¼" x skin deep on the back of left elbow. (ii) Abrasion ½" x ¼" over left temporal region of head. (iii) Abrasion ¼" x ¼" on the left side of forehead. (iv) Swelling 4" x 3" on the left side of forehead extending up to temporal region. (v) Abrasion 1" x ½" on the back of right elbow. On dissection, thick ecchymosis was found under scalp all over the head. Linear fracture was found across the head extending from left parietal bone to the right parietal bone up to the end of right temporal bone. Fronto parietal suture were also found, separated on both sides. Thick subdural hematoma was found all over the surface of the brain on both sides. Heart and bladder were found empty. Stomach contained about 40 cc of dark brown fluid and no particular smell. Other internal organs were found pale. This witness has stated that the death was caused due to the fact that the deceased was in coma due to head injuries caused by hard and blunt weapon. He has identified the post mortem report to be in his pen and signature, which has been marked as Ext.-1. 9. P.W. 8-Udai Bhan Singh is the I.O. of the case. This witness has stated that on 30.6.1996 he was posted as S.I. in Kenduadih Police Station. At about 22:00 hours, he got the information that there was some quarrel between some persons. He made the sanha entry about this information and proceeded to the place of occurrence. At the place of occurrence he came to know about the occurrence in which Ramji Ram was seriously hurt, who had been brought to Nutan Nursing Home. Thereafter he went to Nutan Nursing Home and saw Ramji Ram in serious condition. He recorded the fardbeyan of Bhagwan Ram on which Bhagwan Ram had put his thumb impression. He has proved the fardbeyan which was marked as Ext.-2. He has also proved the endorsements on the fardbeyan which was marked as Ext.2/1 and he has also proved the formal F.I.R., which was marked as Ext.-3. He has given the details of the place of occurrence. He has proved the fardbeyan which was marked as Ext.-2. He has also proved the endorsements on the fardbeyan which was marked as Ext.2/1 and he has also proved the formal F.I.R., which was marked as Ext.-3. He has given the details of the place of occurrence. He has also proved the inquest report of the dead body which was marked as Ext.-4. He has stated that the statements of Bhagwan Ram and Laxman Ram were recorded under Section 164 Cr.P.C., and during investigation he arrested Umesh Ram, Shital Ram and Ramdeo Ram, against whom he submitted the charge-sheet showing other two accused persons as absconders. In his cross-examination, this witness has stated that at the place of occurrence he had not found any bloodstain and any mark of vomiting. 10. The statements of both the accused were recorded under Section 313 of the Cr.P.C., wherein they denied the evidence against them. On the basis of the evidence on record, both the accused appellants were found guilty, convicted and sentenced by the Trial Court below, as aforesaid. 11. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, there is no allegation against these appellants to have assaulted the deceased on his head. Even in the F.I.R. it is not stated that the deceased was assaulted by lathi on his head by the appellants, nor in their evidence P.W.1-Laxman Ram, P.W.2 Lakhan Ram, P.W.3 Bhagwan Ram, the informant and P.W.4 Jaimanti, wife of the deceased, have stated that any assault was made on the head of the deceased. Learned counsel for the appellants accordingly, submitted that it cannot be ruled out that due to fall, the head injuries were caused upon the deceased. It is also submitted by the learned counsel for the appellants that though it is the specific case of the prosecution that after the deceased fell down, both the appellants scaled on his chest and pressed the same by feet due to which he started vomiting and became unconscious, but in the post mortem report no injury was found on the chest or in the adjoining internal organs of the deceased. It is further pointed out by learned counsel for the appellants that no sign of vomiting was found at the place of occurrence as deposed by P.W.8-Udai Shan Singh, the I.O. of the case. Learned counsel for the appellants accordingly, submitted that no offence is made out under Section 302 of the Indian Penal Code against the appellants, rather, the offence if any, is made out only under Section 304 Part-II of the Indian Penal Code. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is supported by all the material prosecution witnesses who are the eyewitnesses to the occurrence. It is pointed out by learned counsel for the State that P.W.5 Rajeshwar Das and P.W.7 Devya Devi have specifically stated that both the accused appellants had assaulted the deceased on his head and other parts of the body and this ocular evidence is fully corroborated by the medical evidence of P.W.6 Dr. Shailendra Kumar. As such the offence is clearly made out under Section 302/34 of the Indian Penal Code. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that both the appellants have been convicted for the offence under Section 323/34 of the Indian Penal Code for causing hurt to the informant Shagwan Ram and his brother Laxman Ram. Though they have stated that they had sustained bleeding injuries, but no such injury has been proved by the prosecution. It appears that even the charge-sheet was submitted under Sections 323/34 of the Indian Penal Code, and the charge was also framed for the same offence. So far as the offence under Section 302 of the Indian Penal Code is concerned, there is allegation against both the appellants in the F.I.R. to have assaulted the deceased Ramji Ram when he tried to save his sons. As per the F.I.R., the assault was made by lathi on the back and forearm of the deceased due to which it is alleged that he fell down and both the appellants scaled on his chest and pressed his chest by feet, due to which he started vomiting and became unconscious. As per the F.I.R., the assault was made by lathi on the back and forearm of the deceased due to which it is alleged that he fell down and both the appellants scaled on his chest and pressed his chest by feet, due to which he started vomiting and became unconscious. Even P.W.1 Laxman Ram, P.W.2 Lakhan Ram, P.W.3 Shagwan Ram, the informant and PW4 Jaimanti, the wife of the deceased have not stated that any assault was made on the head of the deceased. There are only two witnesses, P.W.5 Rajeshwar Das and P.W.7 Devya Devi who have stated that the assault was also made on the head of the deceased. As such, the fact that these statements made by PW5 Rajeshwar Das and P.W.7 Devya Devi are improvement over the prosecution case upon seeing the post mortem report, cannot be ruled out. However, the fact remains that there is allegation against both the appellants to have assaulted the deceased by lathi due to which he fell down. The allegation of scaling upon the chest of the deceased and pressing the same by feet, does not find support from the medical evidence of P.W.6 Dr. Shailendra Kumar, and the post mortem report proved by him as Ext.-1, who had not found any injury either on the chest or in the adjoining internal organs. Even the sign of vomiting was not found by P.W.8-Udai Shan Singh, the I.O. of the case. We are of the considered view that in the facts of this case, though there is evidence against both these appellants to have assaulted the deceased by lathi, but the prosecution has failed to prove that they made the assault with the intention of causing the death of the deceased. As such, no offence can be said to be made out under Section 302 of the Indian Penal Code against the appellants, rather, the offence if any, is made out only under Section 304 Part-II of the Indian Penal Code. Accordingly, the conviction of both the accused appellants 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 IPC. 14. Accordingly, the conviction of both the accused appellants 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 IPC. 14. Accordingly, the impugned Judgment of conviction dated 27.5.2009, passed by the learned Additional Sessions Judge-I, Dhanbad, in S.T. No. 23 of 1997, convicting the appellants for the offence under Sections 302/34 of the Indian Penal Code, is modified to the extent that the appellants are found guilty and convicted for the offence under Sections 304 Part-II/34 of the Indian Penal Code. The Order of sentence dated 30.5.2009 is also accordingly, modified to the extent that the sentence passed under Section 302/34 of the Indian Penal Code is set aside, and both the appellants are sentenced to undergo R.I. for ten years for the offence under Sections 304 Part-II/34 of the Indian Penal Code. However, the conviction and sentence of the appellants for the offence under Sections 323/34 of the Indian Penal Code is confirmed. Both the sentences shall run concurrently, as directed by the Trial Court below. Both the appellants Shital Ram and Umesh Ram are in custody, undergoing the sentence. Both the appellants are directed to be released and set at liberty, as soon as they complete the sentence of rigorous imprisonment for ten years. If they have already completed this sentence, they shall be released and set at liberty forthwith, if their detention is not required in any other case. 15. Consequently, this appeal stands allowed in part, with the modification in the impugned Judgment of conviction and Order of sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.