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2018 DIGILAW 2573 (JHR)

Kali Kisku v. State Of Jharkhand

2018-11-27

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Ranjan Kumar Singh and learned counsel for the State, Mr. Shiv Kumar Sharma, learned Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence both dated 04.03.2004, passed by learned Sessions Judge, Deoghar, in Sessions Case No.148 of 1997, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 304 part II, 147, 341 and 323 of the Indian Penal Code and awarded rigorous imprisonment for seven years for the offence committed and punishable under Sections 304 part II of the Indian Penal Code, rigorous imprisonment for six months for the offence committed and punishable under Section 147 of the Indian Penal Code, rigorous imprisonment for six months for the offence committed and punishable under Section 323 of the Indian Penal Code and simple imprisonment for one month for the offence committed and punishable under Section 341 of the Indian Penal Code and all the sentences are directed to run concurrently. 3. The prosecution case is based upon fardbeyan of Shyam Lal Tudu (P.W.-5), recorded by A.S.I. Arjun Paswan of Chitra police station, Deoghar on 29.03.1997 at about 07:30 A.M., wherein the informant has alleged that yesterday i.e. on 28.03.1997 at about 07:00 P.M., son-in-law of the informant, Shiblal Murmu was quarreling with Jolo Manjhi with respect to a pigeon, near the house of Shiblal Soren. The informant after seeing the quarrel went there to call his son-in-law, Shiblal Murmu, but as soon as the informant reached there Sajni Kisku, daughter of late Tarni Kisku, Gomeshwar @ Gomo Kisku, son of Late Tarni Kisku, Lolo Kisku, wife of Jolo Manjhi, Sade Besra, son-in-law of Sugrum Kisku, Kali Kisku (appellant), son of Ranjan Kisku, Duryo Tudu, son of Pareth Tudu and Madan Kisku, son of Sishu Kisku, all resident of village Sangram Dih, P.S.-Chitra assaulted the informant by means of fists and slaps. Seeing the informant assaulted by the accused persons, the wife of informant, Phulmani Manjhiain and his son, Anil Tudu came for rescue of the informant. It is alleged that informant''s wife was assaulted by Kali Kisku, appellant by means of fat and leg, causing injury and unconsciousness. Seeing the informant assaulted by the accused persons, the wife of informant, Phulmani Manjhiain and his son, Anil Tudu came for rescue of the informant. It is alleged that informant''s wife was assaulted by Kali Kisku, appellant by means of fat and leg, causing injury and unconsciousness. The informant has further alleged that his son was also assaulted by Sajni Kisku, Gomeshwar @ Gomo Kisku, Lolo Kisku, Sade Besra, Duryo Tudu and Madan Kisku. It is further stated by the informant that because of the intervention of the neighbours all the accused persons went their respective houses. The wife of the informant was brought to the house in unconscious stage and due to night they could not get any vehicle to bring her to the hospital and in the morning of 29.03.1997, the informant along with his family members, brought his wife to the police station and gave his statement. 4. On the basis of fardbeyan, police has registered Sarath (Chitra) P.S. Case No. 16 of 1997, dated 29.03.1997, under Sections 147/341/323/307 of the Indian Penal Code against seven named accused persons. 5. After investigation, the police has submitted charge sheet vide charge sheet no.18 of 1997, dated 30.04.1997, under Sections 147/341/323/307/302 of the Indian Penal Code, against all the seven named accused persons. 6. The cognizance of the offence has been taken vide order dated 03.06.1997 and the case has been committed to the court of sessions vide order dated 28.07.1997. 7. The charge has been framed against all the accused persons under Sections 147, 341, 323 and 302/34 of the Indian Penal Code, on 21.06.1999, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, to prove its case, has examined altogether seven witnesses and also adduced documentary evidence as exhibits. Makku Tudu, daughter of the informant, has been examined as P.W.-1, Sonamani Soren, daughter-in-law of the informant, has been examined as P.W.-2, Mistri Hembrom, co-villager, has been examined as P.W.-3, Anil Tudu, son of the informant, injured and eye witness of the case, has been examined as P.W.-4, Shyam Lal Tudu, informant of the case, has been examined as P.W.- 5, Dr. Baliram Prasad Gupta, Medical Officer, has been examined as P.W.-6 and Sarwan Kumar, formal witness being Advocate Clerk, has been examined as P.W.-7. Baliram Prasad Gupta, Medical Officer, has been examined as P.W.-6 and Sarwan Kumar, formal witness being Advocate Clerk, has been examined as P.W.-7. Postmortem report of the deceased, Phulmani Manjhiain, has been proved and marked as exhibit-1, fardbeyan, has been proved and marked as exhibit-2 and formal first information report, has been proved and marked as exhibit-3. 9. After closure of the prosecution evidence, statement of the other accused persons including appellant have been recorded under section 313 Cr.P.C., on 08.01.2004, to which the accused persons including appellant have denied the allegation levelled against them and have stated that they have been falsely implicated in this case. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence. By the same impugned judgment five other accused persons namely, Sajni Kisku, Lolo Kisku, Sade Besra, Madan Kisku and Duryo Tudu @ duryodhan Tudu have been convicted under Sections 147, 341 and 323 of the Indian Penal Code and have been given benefit under Section 3 of Probation of Offender Act and have been released after due admonition. Trial of one of the accused namely, Gomeshwar Kisku have been dropped vide order dated 01.06.2002 as he has died during the trial. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellant Mr. Ranjan Kumar Singh. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as there are material contradictions in the evidence of the prosecution witnesses and learned trial court has passed the impugned judgment without scrutinizing the materials available on record. Learned counsel for the appellant has submitted, that investigating officer has not been examined in this case and it is a case of free fight between the parties on a trivial issue with respect to pigeon between son-in-law of the informant and co-villager, Jolo Manjhi. Learned counsel for the appellant has further submitted, that neither Jolo Manjhi nor son-in-law of the informant, Shiblal Murmu, have been examined in this case. Learned counsel for the appellant has further submitted, that neither Jolo Manjhi nor son-in-law of the informant, Shiblal Murmu, have been examined in this case. Learned counsel for the appellant has further submitted, that assault upon Phulmani Manjhiain, deceased was alleged against Kali Kisku and one Sajni Kisku during the evidence and said Sajni Kisku has already been acquitted by the learned trial court from the charge under Section 302 of the Indian Penal Code. Learned counsel for the appellant has thus submitted, that the conviction of the appellant under Section 304 part II of the Indian Penal Code may be modified to section 323 of the Indian Penal Code as Section 304 part II is attracted when it is proved that even the accused had no intention to cause such bodily injury as was likely to cause death but had knowledge that the injury was likely to cause death. Under the aforesaid circumstances, learned counsel for the appellant has submitted, that the conviction of the appellant may be converted from Section 304 part II Indian Penal Code to under Section 323 of the Indian Penal Code as victim died on the next day of the occurrence, as per the first information report. The victim was not given medical assistance on the date of occurrence rather she was kept in the house and only massaged her, as such it is very difficult to distinguish that death has been caused because of the assault made by the fist and leg or by the massage given to the deceased. 12. Heard, Mr. Shiv Kumar Sharma, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed on the basis of materials available on record. Learned counsel for the State has further submitted, that appellant has assaulted the deceased by fist and leg. Learned counsel for the State has drawn attention of this Court towards the fardbeyan, which has been marked as exhibit-2, showing the allegation that wife of the informant namely, Phulmani Manjhiain alongwith her son, Anil Tudu came for rescue of the informant, Shyam Lal Tudu. The wife of the informant was assaulted by Kali Kisku by fist and leg, causing injury and unconsciousness to the Phulmani Manjhiain. The wife of the informant was assaulted by Kali Kisku by fist and leg, causing injury and unconsciousness to the Phulmani Manjhiain. Learned State counsel has thus submitted, that learned trial court, on the basis of the materials available on record, has rightly convicted the appellant under Section 304 part II, in addition to Sections 147, 341 and 323 of the Indian Penal Code, as such does not warrant any interference with the impugned judgment of conviction and order of sentence. Learned counsel for the State has further submitted, that doctor (Medical Officer), who has conducted the postmortem examining of the dead body of the Phulmani Manjhiain, has been examined as P.W.-6. Dr. Baliram Prasad Gupta (P.W.-6) has found following ante mortem injuries:- (i) Abrasion below right knee in anterior portion " x " red in colour with blood clots, and (ii) Bruise over left front of the chest extending from 9th rib to 2nd rib red in colour. On dissection and on opening of thorax, fracture of 5th, 6th, 7th, 8th and 9th ribs were found on the left side of chest in same line anteriorly and the pleural cavity left side was found full of dark red blood. The left lung was found lacerated corresponding to fracture side of the ribs aforesaid. The cause of death of the deceased was hemorrhage caused by blow on the chest by hard and blunt substance within 18 to 24 hours. The doctor has proved the postmortem report in his handwriting and signature as exhibit-1. Learned counsel for the State has further submitted, that evidence of prosecution witnesses namely, P.W.-1, Makku Tudu, P.W.-2, Sonamani Soren, P.W.-3, Mistri Hambrom, co-villager, P.W.-4, Anil Tudu, injured eye witness and P.W.-5 Shyam Lal Tudu (informant) are consistent to the prosecution case being an eye witness to the occurrence, have also supported the prosecution case. Under the aforesaid circumstances, the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court. 13. Heard, learned counsel for the appellant Mr. Ranjan Kumar Singh and learned counsel for the State, Mr. Shiv Kumar Sharma, learned Additional Public Prosecutor and perused the record i.e. first information report, framing of charge, evidence of seven prosecution witnesses, three prosecution exhibits and the statement of appellant recorded under section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. Ranjan Kumar Singh and learned counsel for the State, Mr. Shiv Kumar Sharma, learned Additional Public Prosecutor and perused the record i.e. first information report, framing of charge, evidence of seven prosecution witnesses, three prosecution exhibits and the statement of appellant recorded under section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This court has perused the first information report. From perusal of the same, it appears that specific allegation of assault has been alleged against Kali Kisku (appellant), who has assaulted wife of informant, Phulmani Manjhiain by means of fat and leg. The corresponding injuries have been found on the person of deceased to the extent that large number of ribs of left side have been fractured, causing damage to the lungs and thus, there was blood clot found in the left thoracic cavity. This Court has scrutinized the evidence of P.W.-1, Makku Tudu, this witness is an eye witness to the occurrence being daughter of the informant. This witness has supported the prosecution case and has also stated that her mother was a healthy lady not suffering from any ailment and she has not sustained any bleeding injury. This witness has further stated that while her mother was brought to hospital, she died in the way and because of the assault, her mother could not speak in the night of occurrence. P.W.-2, Sonamani Soren, daughter-in-law of the informant has stated that accused Sajni Kisku and Kali Kisku have assaulted her mother-in-law, Phulmani Manjhiain by means of fist and leg on her abdomen and chest. This witness was cross-examined but nothing has been elucidated by the defence rather the witness has categorically stated in paragraph 5 of her cross-examination that Phulmani Manjhiain has not sustained any bleeding injury. Mistri Hambrom, P.W.-3 a co-villager and independent witness, has also supported the prosecution case. Anil Tudu, P.W.-4, son of the informant and injured witness of the case, has also supported the prosecution case to the extent that his mother, Phulmani Manjhiain was assaulted by accused persons. Shyam Lal Tudu, informant of the case has been examined as P.W.-5. This witness is also an eye witness to the occurrence and his evidence is in complete consonance with the medical evidence, which has been proved and marked as exhibit-1. Shyam Lal Tudu, informant of the case has been examined as P.W.-5. This witness is also an eye witness to the occurrence and his evidence is in complete consonance with the medical evidence, which has been proved and marked as exhibit-1. Under the aforesaid circumstances, this Court is of the opinion that conviction of the appellant passed by the learned trial court is being upheld and affirmed. So far the sentence awarded to the appellant is concerned, learned counsel for the appellant has submitted, that the occurrence took place in the year, 1997 at that time the appellant was aged about 18 years. For more than 21 years the appellant is facing rigors of trial, as such instead of sentencing him to undergo further custody, it would be desirable that monetary fine may be awarded to the appellant. 14. Learned counsel for the State, Mr. Shiv Kumar Sharma, learned Additional Public Prosecutor, has no objection. 15. This Court has considered this aspect of submission made by the learned counsel for the appellant. After considering such submission, this Court is of the opinion that appellant has served six months of his sentence under custody, as such the remaining period of sentence is modified with fine of Rs. 25,000/- and the appellant is directed to deposit the same before the learned trial court within a period of eight weeks from receipt of notice, issued by the learned trial court. 16. Learned trial court is directed to issue notice to the appellant directing him to deposit sum of Rs.25,000/- within a period of eight weeks from receipt of the notice, failing which the sentence awarded by the learned trial court will remain as it is. After deposit of said money of fine amount, the learned trial court will disburse the same to the informant. In case the informant is not available the same will be disbursed to the legal heirs of deceased after proper verification. 17. In the result, the instant criminal appeal is dismissed with modification in sentence. 18. The appellant, who is on bail, his bail bonds is hereby cancelled to comply the order passed by this Court. In case the informant is not available the same will be disbursed to the legal heirs of deceased after proper verification. 17. In the result, the instant criminal appeal is dismissed with modification in sentence. 18. The appellant, who is on bail, his bail bonds is hereby cancelled to comply the order passed by this Court. No coercive steps shall be taken against the appellant for eight weeks from the receipt of the notice but if the order is not being compiled by the appellant the learned trial court is directed to take all coercive steps for procurement of the appellant to serve out rest of the sentence as directed by the learned trial court. 19. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.