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2018 DIGILAW 1853 (JHR)

Bijay Dehri v. State Of Jharkhand

2018-08-14

B.B.MANGALMURTI, H.C.MISHRA

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JUDGMENT 1. Heard learned amicus curiae appointed by the Court for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 29th May, 2007 and Order of sentence dated 31st May, 2007, passed by the learned Sessions Judge, Dumka, in Sessions Case No. 103 of 2004, whereby, the sole appellant has been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and a fine of Rs. 500/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Sukumar Dehri, a chowkidar, recorded on 12.11.2003 at about 11.45 hours at village Chhota Phuljhinjhri, P.S. Kathikund, District Dumka, wherein he has stated that he was a chowkidar and since he was keeping ill, at times he used to send his brother-in-law Gera Dehri on duty at his place. He has stated that on the previous day, i.e., 11.11.2003 at about 9:00 P.M. one villager of Phuljhinjhri came and informed him that there was some quarrel with his brother-in-law, whereupon he went there and saw his brother-in-law dead. One Chhota Budhna of the village informed him that three persons including this appellant, had assaulted the deceased at Daldali Dangal, who also made extra judicial confession to that effect. The accused persons were apprehended and the deceased was brought to his village along with the three accused, who were handed over to the villagers. The deceased died in the night on 11.11.2003 itself. On the basis of the fardbeyan of the informant Sukumar Dehri, Kathikund P.S. Case No. 65 of 2003, corresponding to G.R. No. 1141 of 2003, was instituted for the offence under Sections 302 / 34 of the India Penal Code, against three named accused persons, including the present appellant, and investigation was taken up. After investigation, the police submitted the charge-sheet against the appellant, showing the other two accused as absconders. 4. After commitment of the case to the Court of Session, charge was framed against this appellant for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. 4. After commitment of the case to the Court of Session, charge was framed against this appellant for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined thirteen witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. Most of the witnesses examined in the case are hearsay witnesses or they have not stated anything against the accused, and they are P.W.-2 Durga Dehri, the brother of the deceased, P.W.-3 Shiv Kumar Dehri @ Sukumar, the informant, P.W.-4 Hurrah Dehri, who is also a witness to the inquest report, P.W.-6 Chhota Budhan Dehri and P.W.-7 Chandramukhi Devi, the wife of the deceased. 6. P.W.-5 Dinesh Dehri, P.W.-8 Poresh Soren and P.W.-10 Surju Murmu are the eye witnesses to the occurrence. They have stated that they had seen the accused assaulting the deceased. P.W.-5 has also stated that the accused Bijay Dehri had made the extra judicial confession before the villagers, admitting that he had assaulted the deceased. P.W.-8 Poresh Soren has stated that this accused had assaulted the deceased by a piece of wood (lakdi ka chaila), due to which he fell down, whereas P.W.-10 Surju Murmu has also stated that he had seen this accused assaulting the deceased by lathi. There is nothing in their cross-examinations so as to discredit their testimony on the point of assault. 7. P.W.-9 Mistry Hansda has stated that upon hearing about the occurrence, he went there and he found two persons washing their feet and hands, who were apprehended and both of them admitted that they had assaulted the deceased. He has identified the accused in the Court to be one of them who had made the extra judicial confession before him. There is nothing of much importance in his cross-examination also. 8. P.W.-1 is Dr. Shiva Shankar Bhagat, who had conducted the post-mortem examination on the dead body of the deceased on 13.11.2003, and had found the following injuries :- (i) Abrasion on left elbow " x ". (ii) Swelling left temporal region diffused. On dissection of the scalp there was collection of blood beneath the skin. On further dissection there was fracture of temporal bone. (ii) Swelling left temporal region diffused. On dissection of the scalp there was collection of blood beneath the skin. On further dissection there was fracture of temporal bone. On further dissection there was huge collection of blood in the cranium cavity. The brain was lacerated. This witness has stated that the death was due to shock and haemorrhage as a result of injury No.(ii), which was caused by hard and blunt object, and was sufficient to cause the death. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.-1. 9. Pw-11 is Sanjay Pratap, the Judicial Magistrate, who had recorded the statement of the witness Dinesh Dehri (P.W.-5) under Section 164 of the Cr.P.C., and he has proved the same, which was marked Ext.5. 10. P.W.-12 Kamal Chandra Kumar is a formal witness who has proved the fardbeyan as Ext.6 and formal F.I.R. as Ext.7. 11. P.W.-13 Shyam Lal Tudu is the I.O. of the case. This witness has stated that on 12.11.2003 he was posted as S.I. at Kathikund Police Station. He was handed over the charge of investigation. He recorded the re-statement of the informant as also the statements of the witnesses. He has given the details of the place of occurrence and has stated that after completing the investigation, he submitted the charge-sheet in the case. 12. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused has denied the evidence against him. On the basis of the evidence on record, the Trial Court below has convicted and sentenced the appellant for the offence under Sections 302 / 34 of the Indian Penal Code. 13. Learned amicus curiae has taken a short point, submitting that even if the evidence of the eye-witnesses is admitted to be true, there is allegation against this appellant of giving one assault by a piece of wood to the deceased, due to which he fell down. The evidence of P.W.-1 Dr. Shiv Shankar Bhagat also shows that apart from an abrasion, there was only one injury on the head of the deceased, which proved fatal. The evidence of P.W.-1 Dr. Shiv Shankar Bhagat also shows that apart from an abrasion, there was only one injury on the head of the deceased, which proved fatal. Learned amicus curiae accordingly, submitted that there is no evidence to show that such assault was made with the intention to cause the death, and in any event, the offence, if any, committed by the appellant, shall fall under Section 304 Part II of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. Learned amicus curiae submitted that the appellant has already remained in custody for about 14 years, and as such, he has already served more than the maximum sentence prescribed for the offence under Section 304 Part II of the Indian Penal Code. 14. Learned counsel for the State though has opposed the prayer, but has very fairly admitted that only evidence against this appellant is that he had assaulted the deceased by lathi, or a piece of wood, and there was only one assault on the dead body of the deceased as is apparent from the evidence of P.W.-1 Dr. Shiv Shankar Bhagat, and the post-mortem report proved by him as Ext.1. 15. Having heard learned counsels for both the sides and upon going through the record, we find that though the eye-witnesses, namely, P.W.-5 Dinesh Dehri, P.W.-8 Poresh Soren and P.W.-10 Surju Murmu have stated that they had seen the present accused also assaulting the deceased, but in the evidence of P.W.-8 Poresh Soren it has come that this accused had assaulted the deceased by a piece of wood, due to which he fell down. There is no allegation of assault after the deceased had fallen down. The evidence of P.W.-1 Dr. Shiv Shankar Bhagat also shows that apart from minor abrasion, there was only one injury on the temporal region of the deceased, which was caused by hard and blunt substance, and was the cause of death of the deceased. We find that since there was only one assault made on the head of the deceased and there was no repetition of blow, there is nothing to show that the accused had assaulted the deceased with the intention to cause his death, and in that view of the matter, the offence, if any, comes within Section 304 Part II of the Indian Penal Code. We also find from the record that the appellant has remained in custody throughout and has served more than the sentence prescribed for the offence under Section 304 Part II of the Indian Penal Code. 16. For the foregoing reasons, the impugned Judgment of conviction dated 29th May, 2007, passed by the learned Sessions Judge, Dumka, in S.C. No. 103 of 2004, convicting the appellant Bijay Dehri, for the offence under Sections 302 / 34 of the Indian Penal Code, is hereby, modified to the extent that the appellant, is hereby, convicted for the offence under Section 304 Part II of the Indian Penal Code. The Order of sentence dated 31st May, 2007, passed by the Trial Court below against this appellant, is accordingly, set aside, and the appellant Bijay Dehri is sentenced to undergo R.I. for ten years for the offence under Section 304 Part II of the Indian Penal Code. Since the appellant Bijay Dehri has already served this sentence, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 17. We find from the record that P.W.-7 Chandramukhi Devi, is the victim of the crime, being the wife of the deceased, who has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned DLSA, so that adequate compensation is paid to this victim at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 18. Before parting with this Judgment, we must record that we have been given able assistance by Miss Amrita Banerjee, learned amicus curiae appointed by this Court for the appellant. We accordingly, direct the Secretary, High Court Legal Services Committee, Ranchi, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 19. This appeal is accordingly, dismissed, with the modification in the conviction and sentence as aforesaid. We accordingly, direct the Secretary, High Court Legal Services Committee, Ranchi, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 19. This appeal is accordingly, 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 of this Judgment.