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2018 DIGILAW 2237 (JHR)

Kali Modi v. State of Jharkhand

2018-10-10

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : As both these appeals arise out of the same impugned Judgment, they are heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsels for the State. 3. The appellants are arrived by the impugned Judgment of conviction and Order of sentence dated 20th of December, 2008, passed by the learned Additional Sessions Judge-XIII, Dhanbad, in Sessions Trial No. 280 of 1991, whereby, the appellant Kali Modi has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, and the appellant Jagdish Modi has been found guilty and convicted for the offences under Sections 341 and 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, both the appellants have been sentenced to undergo imprisonment for life and fine of Rs.500/- each, for the offence under Section 302 of the Indian Penal Code, and the appellant Jagdish Modi has also been sentenced to undergo imprisonment for one month for the offence under Section 341 of the Indian Penal Code. Both the sentences of Jagdish Modi were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Ramdhani Mahto, while he was alive, and recorded at Central Hospital, Dumra, P.S. Baghmara, District Dhanbad, on 22.12.1990 at about 9.00 AM, wherein he has stated that the accused Kali Modi had put a gumti in front of his quarter, which was being objected by him. In the morning of 22.12.1990, the informant asked the accused to remove the gumti, whereupon there was altercation between the informant and Kali Modi, his brother Jagdish Modi and Narayan Modi, the father-in-law of Kali Modi, in course of which, Jagdish Modi and Narayan Modi apprehended the informant and Kali Modi assaulted him by knife in his stomach, injuring him, due to which, he fell down. Thereafter, accused persons fled away. The injured was brought to the Central Hospital, Dumra, where his fardbeyan was recorded, on the basis of which, Baghmara (Barora) P.S. Case No. 384 of 1990 corresponding to G.R. No. 1274 of 1990, was instituted for the offences under Sections 341, 324, 307/34 and 506 of the Indian Penal Code, against the named accused persons. In course of treatment, the injured informant died. After investigation the charge sheet was submitted by the police in this case. In course of treatment, the injured informant died. After investigation the charge sheet was submitted by the police in this case. 5. After commitment of the case to the Court of Session, charge was framed against the accuseds Narayan Modi and Jagdish Modi for the offences under Sections 302/34 and 341 of the Indian Penal Code, and against the accused Kali Modi for the offence under Section 302 of the Indian Penal Code, and upon the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. It may be stated that the charge was again altered and framed against all the accused persons for the offences under Sections 302/34 of the Indian Penal Code, to which also, the accuseds pleaded not guilty and claimed to be tried. It may also be stated that in the impugned Judgment it finds mentioned that in course of trial, the accused Narayan Modi died. 6. In course of trial, eight witnesses were examined by the prosecution, including the Doctors, who had conducted the post-mortem examination on the dead body of the deceased and who had examined the deceased while he was alive. The I.O. of the case has not been examined by the prosecution, though, the Police Officer, who had recorded the fardbeyan of the injured informant has been examined. 7. P.W-2 Mahendra Prasad Singh and P.W.-3 Sadhu Lal Barhai have supported the prosecution case as hearsay witnesses to the occurrence, as they had reached the place of occurrence soon after the assault, and they had seen the deceased Ramdhani Mahto in injured condition. Both these witnesses have claimed to have seen the accused Kali Modi fleeing away from the place of occurrence with knife, and they have stated that they were informed by Ram Dhani Mahto, that Kali Modi had assaulted him by knife. P.W.-2 Mahendra Prasad Singh has also stated that Ram Dhani also informed him that Jagdish Modi and Narayan Modi had apprehended him and Kali Modi assaulted him by knife. Both these witnesses had brought the injured informant to the hospital, where he also gave statement before the police, and in course of treatment, he died on the next day. P.W.-2 Mahendra Prasad Singh has identified all the accused in the Court and P.W.-3 Sadhu Lal Barhai has identified Kali Modi in the Court. Both these witnesses had brought the injured informant to the hospital, where he also gave statement before the police, and in course of treatment, he died on the next day. P.W.-2 Mahendra Prasad Singh has identified all the accused in the Court and P.W.-3 Sadhu Lal Barhai has identified Kali Modi in the Court. There is nothing of much importance in cross-examination of these witnesses, though, it has come in the cross-examination of P.W.-2 Mahendra Prasad Singh that Jagdish Modi was apprehended by the people and was handed over to the police. In his cross-examination P.W.-3 Sadhu Lal Barhai has reiterated that the deceased had stated the fact that Kali Modi had assaulted him by knife, both at the place of occurrence and in the Central Hospital. 8. P.W.-5 Ram Bishun Nunia and P.W.-6 Chetlal Mahto, who is son of the deceased, have also supported the prosecution case as hearsay witnesses. They went to the hospital while the deceased was undergoing the treatment and both of them had been informed by the deceased himself, that Kali Modi assaulted him by knife. P.W.-6 Chetlal Mahto has also stated that his father also informed him that at the time of occurrence Jagdish Modi and Narayn Modi had apprehended him and Kali Modi had assaulted him by knife, due to the fact that the informant had asked him to remove the gumti. P.W.-6 Chetlal Mahto has identified all the accused in the Court. 9. P.W.-1 Pawan Mahto had initially supported the prosecution case as an eyewitness to the occurrence, stating that he had seen the quarrel between the parties, which was going on for removing the gumti from the front of the quarter of Ram Dhani Mahto, in course of which, Jagdish Modi and father-in-law of Kali Mahto apprehended Ram Dhani Mahto, and Kali Modi assaulted him by knife in his stomach. This witness has stated that thereafter, Ram Dhani Mahto became unconscious and he was brought to the hospital and in course of treatment, he died. His cross-examination was differed and his cross-examination was made on recall, in which he has not identified the accused Jagdish Modi in the Court. He has also stated that when he reached the place of occurrence, he had seen the deceased Ram Dhani Mahto fallen down with bleeding injuries. 10. P.W.-7 is Dr. His cross-examination was differed and his cross-examination was made on recall, in which he has not identified the accused Jagdish Modi in the Court. He has also stated that when he reached the place of occurrence, he had seen the deceased Ram Dhani Mahto fallen down with bleeding injuries. 10. P.W.-7 is Dr. M.P. Sahi, who had examined the deceased while he was alive and he had found clear incised wound over abdomen just above and right to umbilicus, 1½” long, with bleeding cut visible. He has stated that the injury was caused by sharp cutting weapon, like knife, and he has proved the injury report issued by him, to be in his pen and signature, which was marked as Exhibit-2. In his cross-examination, this witness has stated that the patient was in conscious condition while he was being treated. 11. P.W.-4 Dr. Vinod Kumar had conducted the post-mortem examination on the dead body of the deceased on 24.12.1990, and had found the following injuries on the dead body:- 1. 8 ½” long right prarmedian incision seen on the abdomen with 13 stitches. 2. Stitched wounds ½” long with two stitches and rubber sheet was seen on the right flank of lower part of abdomen. On dissection:- Both sides chambers of the heart were empty. Stomach contained about 1½ oz yellowish fluid only. Stomach and inferior vena cava were found repaired by catgut stitches. Blood and clot were seen in right side of abdominal cavity. Urinary bladder was empty. All the internal organs were pale. This witness has stated that he had also seen the bed head ticket of the deceased, which was produced by the I.O. from Central Hospital, Dhanbad, and after perusal of the operative notes and bed head ticket, he had given the opinion about the cause of death of the deceased, which was due to shock and haemorrhage, as a result of stab injury to the abdomen. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. In his cross-examination, this witness has stated that he had not mentioned about the bed head ticket in the post-mortem report. 12. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. In his cross-examination, this witness has stated that he had not mentioned about the bed head ticket in the post-mortem report. 12. P.W.-8 Dharm Raj Ram is the Police Officer, who had recorded the fardbeyan of the injured informant, while he was alive, on 22.12.1990 at Central Hospital, Dumra, Dhanbad, which he has proved to be in his pen and signature, and the same was marked Exhibit-3. He has also stated that the deceased was conscious at the time of giving fardbeyan. This witness has further stated that he had not made any investigation in the case, rather the same was made by a different Police Officer. In his cross-examination, he has denied the suggestion that the deceased was unconscious and the fardbeyan does not bear the signature of the deceased. 13. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have dined the evidence against them. The defence has proved part of the case diary as Exhibit-A, but the same cannot be taken into consideration. On the basis of the material available on record, the accused-appellants were found guilty, convicted and sentenced by the Trial Court below as aforesaid. 14. Learned counsels for the appellants have submitted that the prosecution has not been able to bring home the charges against the appellants beyond all reasonable doubts, as there is no eyewitness to the occurrence and P.W.-1 Pawan Mahto, who had deposed himself as eyewitness, has clearly stated in his cross-examination that when he reached the place of occurrence, the saw the deceased fallen with the injuries in his abdomen, who was unconscious. It is submitted by learned counsels that the I.O. has not been examined in the case, which has caused serious prejudice to the appellants and even the bed head ticket of the deceased has not been proved. It is also submitted that even the place of occurrence could not be proved in the case due to non-examination of the I.O., who could have proved whether any blood was found at the place of occurrence or not. Learned counsels submitted that the other witnesses are only the hearsay witnesses, and it is a fit case, in which, both the appellants ought to have been given the benefits of doubt. Learned counsels submitted that the other witnesses are only the hearsay witnesses, and it is a fit case, in which, both the appellants ought to have been given the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 15. Learned counsels for the State, on the other hand have opposed the prayer and submitted that P.W.-2 Mahendra Prasad Singh, P.W.-3 Sadhu Lal Barhai, P.W.-5 Ram Bishun Nunia and P.W.-6 Chetlal Mahto, though, are hearsay witnesses, but they had seen the deceased in the injured condition and the deceased himself had informed them that it was the accused Kali Modi, who had assaulted him by knife. P.W.-2 Mahendra Prasad Singh and P.W.-6 Chetlal Mahto have also stated that the deceased had informed them that at the time of occurrence, the accused Jagdish Modi had apprehended him and Kali Modi had assaulted him in his stomach by knife. P.W.-1 Pawan Mahto has also supported the prosecution case as eyewitness to the occurrence. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Dr. Vinod Kumar and P.W.-7 Dr. M.P. Sahi, and the post-mortem report and the injury report proved by them, which clearly show that the stab injury was found on the abdomen of the deceased. Learned counsels have submitted that since the deceased died on the next day, the fardbeyan of the deceased and the statements given before the witnesses are his dying declarations. Learned counsels accordingly, submitted that the prosecution has been able to bring home the charges against the accused appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below, and this appeal is fit to be dismissed. 16. Learned counsels accordingly, submitted that the prosecution has been able to bring home the charges against the accused appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below, and this appeal is fit to be dismissed. 16. Having heard counsels for both the sides and upon going through the record, we find that though the evidence of P.W.-1 Pawan Mahto, being the eyewitness is doubtful, due to his admission in his cross-examination that when he reached the place of occurrence, he had seen the deceased fallen down in injured condition, and he has also stated that the deceased was unconscious, but the fact remains that P.W.-2 Mahendra Prasad Singh, P.W.-3 Sadhu Lal Barhai, P.W.-5 Ram Bishun Nunia and P.W.-6 Chetlal Mahto have clearly stated that they had seen the deceased in the injured condition and the deceased informed them that it was the accused Kali Modi, who had assaulted him by knife, causing injury in his abdomen. P.W.-2 Mahendra Prasad Singh and P.W.-6 Chetlal Mahto have also stated that the deceased had informed them that Jagdish Modi had apprehended him and Kali Modi had assaulted him by knife. The evidence of P.W.-7 Dr. M.P. Sahi and the injury report proved by him show that there was incised wound on the abdomen of the deceased, which could be caused by knife, and it has come in the cross-examination of this witness that at the time of examination, patient was conscious. Even P.W.-8 Dharm Raj Ram, the Police Officer, who had recorded the fardbeyan of the deceased has stated that the deceased was conscious when he had given his fardbeyan. In view of the evidence of P.W.-7 Dr. M.P. Sahi and P.W.-8 Dharm Raj Ram, it is apparent that the deceased was conscious after the occurrence, and while he was undergoing the treatment, and in that view of the matter, there is no question to doubt the evidences of P.W.-2 Mahendra Prasad Singh, P.W.-3 Sadhu Lal Badhai, P.W.-5 Ram Bishun Nunia and P.W.-6 Chetlal Mahto, that they were informed by the deceased himself about the occurrence, naming the accused persons. The evidence of P.W.-4 Vinod Kumar and the post-mortem report proved by him clearly show that the stomach and the inferior vena cava were found ruptured, which were repaired by stitching by catgut stitches, which clearly show that the deceased was assaulted by knife in his stomach, with the intention to cause hid death, and the injury was sufficient in the normal course of nature to cause the death. We are of the considered view that the evidence of the hearsay witnesses, is fully corroborated by the medical evidence on record, i.e., the evidence of P.W.-4 Vinod Kumar and P.W.-7 M.P. Sahi and the post-mortem report and the injury report, proved by them as Exhibits-1 and 2 respectively. Since the deceased died on the next day, the fardbeyan, as also the information given by him to the hearsay witnesses, are also to be treated as the dying declaration of the deceased. On the basis of material available on record, we are of the considered view that the prosecution has been able to prove beyond all reasonable doubts that the murder of the deceased was committed by both the appellants in furtherance of their common intention, in which the appellant Jagdish Modi had apprehended the deceased, and the appellant Kali Modi had assaulted him by knife, causing injury in his abdomen, cutting the internal organs, which proved fatal. We do not find that any such prejudice had been caused to the defence due to non-examination of the I.O., entitling the appellants to acquittal. Thus, the prosecution has been able to bring home the charges against the appellants, beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 17. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 20th of December, 2008, passed by the learned Additional Sessions Judge-XIII, Dhanbad, in Sessions Trial No. 280 of 1991, convicting and sentencing the appellant Kali Modi for the offence under Section 302 of the Indian Penal Code, and the appellant Jagdish Modi for the offences under Sections 302/34 and 341 of the Indian Penal Code, which we hereby, affirm. The appellant Kali Modi is already in custody undergoing the sentence. The appellant Jagdish Modi is on bail. The appellant Kali Modi is already in custody undergoing the sentence. The appellant Jagdish Modi is on bail. His bail is, hereby, cancelled and he is directed to surrender forthwith in the Trial Court below, for serving out the sentence. The Trial Court below is also directed to issue the process forthwith, compelling the surrender/production of the appellant Jagdish Modi for serving out the sentence. 18. We do not find any merit in both these appeals, which are accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.