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2019 DIGILAW 1005 (JHR)

Dhono Baipai @ Dhano Baipai v. State Of Jharkhand

2019-05-08

H.C.MISHRA, SANJAY KUMAR DWIVEDI

body2019
JUDGMENT 1. Heard learned amicus curiae for the appellant and the learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 20th February 2007 and Order of sentence dated 23.02.2007, passed by the learned Additional Sessions Judge, F.T.C.-II, Seraikella, in Sessions Trial No.144 of 2005, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life with fine of Rs.2,000/-, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Balima Hembram, the wife of the deceased Makhan Hembram, recorded at her house, situated in village Rampur, P.S. Kharsawan, District Seraikella, on 03.06.2005 at about 8:15 A.M. in the morning, wherein she has stated that on the previous day, one Durga Hansda, the brother-in-law of her deceased husband had visited their house and the deceased had asked her to make proper arrangements for his fooding. In the previous night at about 9:00 P.M., when they were taking food at the roof of their house, she was being asked in loud voice by her husband for preparing good food for his brother-in-law. The accused Dhano Baipai, who is her neighbour, was also having some altercation with his family members in his house. Since her husband was speaking in loud voice, the accused Dhano Baipai thought that he was being abused by her husband, whereupon, he came to the road near her house and challenged her husband stating that he was abusing the accused in filthy languages. Though her husband told him that he was not abusing him, but Dhano Baipai shot an arrow upon her husband, which pierced his chest and he died at the spot. Claiming that the accused had committed the murder of her husband, the fardbeyan was given by the informant, on the basis of which, Kharsawan P.S Case No.20 of 2005, corresponding to G.R No.465 of 2005, was instituted for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 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, seven witnesses were examined by the prosecution, including the I.O, and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-7 Samu Hembram, has turned hostile and he has not supported the prosecution case at all. 5. P.W.-1 Balima Hembram is the informant in the case and the wife of the deceased. Though she is the informant in the case, but she has stated that the case was lodged by Karan Singh Hembram, the elder brother of her husband. She has stated that her husband was murdered about 8 to 9 months ago, at about 9:00 P.M., in the night. One guest had arrived at her house and she was being scolded by her husband for giving proper food to the guest. She has stated that after taking food, her husband came to the courtyard when the accused asked him as to why he was abusing him in filthy languages, and her husband told him that he was scolding his wife. Whereupon, the accused shot the arrow on her husband. The first arrow missed, and he shot second arrow, which hit her husband, due to which, he died. She has stated that Karan Singh Hembram informed the police, which arrived on the next day at about 8:00 A.M., and recorded her fardbeyan, on which, she had put her thumb impression. She has identified the accused in the Court. In her cross-examination, she has again reiterated that the case was instituted by the elder brother of her husband. She has also stated that the occurrence had taken place at about 9:00 P.M., at the roof of her house, when the accused had shot the arrow. At that time, the accused was in the courtyard of his own house. She has stated that she had seen the accused, shooting the arrow upon her husband. She has denied the suggestion to have falsely implicated the accused. 6. At that time, the accused was in the courtyard of his own house. She has stated that she had seen the accused, shooting the arrow upon her husband. She has denied the suggestion to have falsely implicated the accused. 6. P.W.-2 Karan Singh Hembram, and P.W.-4 Mongro Hembram are the hearsay witnesses to the occurrence, who were informed about the occurrence by the wife of the deceased. P.W.-2 Karan Singh Hembram is also a witness to the inquest report of the dead body, along with P.W.-3 Kushal Hembram, and they have identified their signatures on the inquest report, which were marked Exhibits-1 and 1/1 respectively. P.W.-3 Kushal Hembram has stated nothing about the occurrence. 7. P.W.-6 Dr. Pranav Kumar had conducted the post-mortem examination on the dead body of the deceased on 03.06.2005, and had found the following injuries on the dead body :- Head of an arrow was inside the left side of chest between 5th and 6th inter coastal space below the nipple. Length of injury 3" x 1/2" x 5". Penetrated the chest wall, left lung, pericardium, left pulmonary artery and heart. Wound was bleeding. Lungs - Left lung was pierced. Heart was punctured. Left pulmonary artery punctured. Stomach - Undigested food particles were found. Liver, spleen, kidney urogenital system were intact. He has stated that the injuries were ante-mortem in nature. Death was caused due to the hemorrhage and shock as a result of the Injury. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 8. P.W.-5 Kamal Narayan Singh is the I.O of the case. This witness has stated that on 03.06.2005, he was posted as Officer-Incharge of Kharsawan Police Station. He was informed that the occurrence had taken place at village Rampur, in which, one person was killed, whereupon, he went to the place of occurrence and recorded the fardbeyan of Balima Hembram. He also prepared the inquest report of the dead body and thereafter, he inspected the place of occurrence. He has stated that the place of occurrence is the house of the deceased, constructed under the ''Indira Awas Yojna'', situated by the side of P.C.C. road. He was informed that the deceased was assaulted by arrow while he was on his roof. He received the post-mortem report and after completing the investigation, he submitted the charge-sheet. He has stated that the place of occurrence is the house of the deceased, constructed under the ''Indira Awas Yojna'', situated by the side of P.C.C. road. He was informed that the deceased was assaulted by arrow while he was on his roof. He received the post-mortem report and after completing the investigation, he submitted the charge-sheet. He has stated that the accused had surrendered in the Court. In his cross-examination, this witness has stated that he had recorded the statements of the informant and the witnesses on the same day. He has also stated that the arrow was still embedded in the chest of the deceased and there were bloodstains on the roof also. He has also stated that the house of the accused is at a distance of 10 yards from the house of the deceased. He has denied the suggestion of making faulty investigation in the case. 9. The statement of the accused was recorded under Section 313 of the Cr.P.C, wherein, he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial Court below, for the offence, as aforesaid. 10. Learned amicus curiae appearing on behalf of the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as the occurrence had taken place in the night at about 9:00 P.M., and according to the FIR, the accused had shot the arrow from near the road, which hit the deceased at the roof of the house. As such, there was no proper source of light to identify the accused on the road. Learned counsel has also submitted that in any event, the informant P.W.-1 Balima Hembram is the only eyewitness to the occurrence, but she has given the contradictory statements, as in her examination-in-chief, she has stated that the occurrence had taken place when the deceased came out in his courtyard after taking meal, but again she has stated in her cross-examination that the deceased was assaulted on the roof of the house. At one place she has stated that the accused had shot the arrow from the road, whereas at the other, she has stated that the accused had shot the arrow from his own courtyard. She has also stated that she had not informed the police. Learned counsel further submitted that even the evidence of the I.O., would show that he had not proved any necessary document in the case, such as the F.I.R, inquest report etc. Learned Amicus Curiae accordingly, submitted that since no other witness has supported the case as eyewitness to the occurrence, this is a case in which the appellant ought to have been given at least the benefits of doubt. 11. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-1 Balima Hembram is the eyewitness to the occurrence and she has fully supported the prosecution case, stating that it was this accused who had shot the arrow upon her deceased husband. The arrow was found embedded in the chest of the deceased by the I.O., and even the evidence of P.W.-6 Dr. Pranav Kumar shows that the arrow was still embedded in the chest. Learned counsel submitted that the arrow had pierced the left lung and left pulmonary artery and the heart, and as such, the offence is clearly made out against the accused under Section 302 of the Indian Penal Code. Learned counsel for the State accordingly, submitted that 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. 12. Having heard the learned counsels for both the sides and upon going through the evidence on record, we find that P.W.-1 Balima Hembram, who is the wife of the deceased, has fully supported the prosecution case. Admittedly, the accused is the neighbour of the deceased and according to the F.I.R, the house of the accused was situated adjacent to the house of the informant. Even the I.O. has stated that the distance between the two houses is only ten yards. Thus, even though, the occurrence had taken place in the night at about 9:00 P.M., there can be no doubt about the identification of the accused by the informant, when the assault was followed by some altercation between the deceased and the accused. Even the I.O. has stated that the distance between the two houses is only ten yards. Thus, even though, the occurrence had taken place in the night at about 9:00 P.M., there can be no doubt about the identification of the accused by the informant, when the assault was followed by some altercation between the deceased and the accused. Though there are some discrepancies in the evidence of the informant, but taking into consideration the fact that she is an illiterate village lady, these discrepancies are only to be ignored. The fact, however, remains that even in the FIR, it is stated that at the time of occurrence, the deceased was shouting upon his wife, due to which, the accused was under the impression that he was abusing the accused in filthy languages, and even in her evidence, P.W.-1 Balima Hembram has stated that since she was being scolded by her husband, the accused thought that her husband was abusing him, and he challenged him as to why he was abusing him in the filthy languages, and had shot the arrow, piercing the chest of the deceased, which proved fatal. The ocular evidence of this witness is fully corroborated by the medical evidence of P.W.-6 Dr. Pranav Kumar, who had found the arrow pierced in the chest of the deceased, piercing the left lung and left pulmonary artery and heart, and the injuries were sufficient in the ordinary course of nature to cause the death of the deceased. However, the evidence of P.W.-1 Balima Hembram itself shows that the accused was under the grave and sudden provocation, though mistaken one, that the deceased was abusing him in filthy languages. 13. In the facts of this case, we are of the considered view that the case of the appellant shall come within the Explanation-1 to Section 300 of the Indian Penal Code, and the offence, shall be made out under Section 304 Part-1 of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. In the facts of this case, we find that the interest of justice would be served, if the appellant is sentenced to undergo R.I. for ten years with fine for the offence under Section 304 Part-1 of the Indian Penal Code. In the facts of this case, we find that the interest of justice would be served, if the appellant is sentenced to undergo R.I. for ten years with fine for the offence under Section 304 Part-1 of the Indian Penal Code. The Lower Court Record shows that the appellant is in custody in the present case since 06.06.2005, and has remained in custody throughout, and as such, he has remained in custody for more than ten years, and has served the aforesaid sentence. 14. For the forgoing reasons, the impugned Judgment of conviction dated 20th February 2007 and Order of sentence dated 23.02.2007, passed by the learned Additional Sessions Judge, F.T.C.-II, Seraikella, in Sessions Trial No.144 of 2005, are hereby, modified to the extent that the appellant is convicted for the offence under Section 304 Part-I of the Indian Penal Code, instead of Section 302 of the Indian penal Code, and he is sentenced to undergo R.I. for ten years with fine of Rs.2000/- as imposed by the Trial Court below. In default of payment of the fine, the appellant shall have to undergo S.I. for two months. Since the appellant Dhono Baipai @ Dhano Baipai has already served his sentence, he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. We find that P.W.-1 Balima Hembram, the wife of the deceased is the victim of the crime, who has lost her husband in the occurrence, and she is entitled to be duly 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 up the matter with the concerned District Legal Services Authority, so that she may be duly compensated 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. 16. Before parting with this Judgment, we wish to record that we have been given able assistance by the learned amicus curiae, Sri Rajesh Kumar Dubey, and we 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. 17. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi for the needful. 17. This appeal is accordingly, dismissed 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 the copy of this Judgment.