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2019 DIGILAW 1406 (JHR)

Tonkaram Yadav v. State of Jharkhand

2019-08-08

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The sole appellant has faced the trial on the charge of committing murder of Budhuram Yadav, the husband of the informant. 2. The learned Sessions Judge has convicted the appellant under section 302 I.P.C and sentenced him to R.I for life for the said offence in S.T No. 13 of 1998. 3. During the trial the prosecution has examined 7 witnesses; the informant-Jaimati Devi is P.W 5 and her son, namely, Anirudh Ram Yadav-P.W 1, her nephew, namely, Narayan Ram Yadav-P.W 2, her daughter-in-law, namely, Tara Devi-P.W 3 and the daughter, namely, Padma Kumari-P.W 4 have also been examined during the trial. 4. Dr. Ramsewak Sahu-P.W 7 who has conducted the post-mortem examination has observed two abrasions and two stitched wound on Budhuram Yadav. According to the doctor, the injuries were ante-mortem in nature and were caused by hard and blunt substance, such as, Gainta. The doctor has opined that the death has been caused due to head injury. 5. In her fard-beyan, the informant has stated that on 05.06.1997 at about 10 a.m. the appellant was digging earth for laying foundation adjacent to boundary of her house. Her husband, namely, Budhuram Yadav objected to digging earth by the appellant which led to an altercation between them. The informant has stated that in course of altercation the appellant gave one Hoe (Kudal) blow on the head of her husband. When she raised hullah, her son, nephew and father-in-law came there, however, the accused fled away. Her husband was taken to the Sub-Divisional Hospital, Simdega where he was treated. On the basis of her fard-beyan, Simdega P.S Case No.69 of 1997 was registered against the appellant under section 325 I.P.C. 6. Subsequently, Budhuram Yadav was shifted to RMCH, Ranchi for treatment where he died on 10.06.1997 and, accordingly, offence under section 302 I.P.C was added in the report. 7. In her examination-in-chief, the informant has narrated the incident as has been told by her to the police on 05.06.1997. During her cross-examination she has deposed that the accused-appellant struck one Gainta blow on the head of her husband. The son of the deceased, namely, Anirudh Ram Yadav-P.W 1, and the nephew, namely, Narayan Ram Yadav-P.W 2 had reached the place of occurrence on hearing cries of the informant-Jaimati Devi. During her cross-examination she has deposed that the accused-appellant struck one Gainta blow on the head of her husband. The son of the deceased, namely, Anirudh Ram Yadav-P.W 1, and the nephew, namely, Narayan Ram Yadav-P.W 2 had reached the place of occurrence on hearing cries of the informant-Jaimati Devi. The informant has stated in her fard-beyan that her son and nephew along with her father-in-law reached the place of occurrence after she raised hullah. On such evidence, we find that P.W 1 and P.W 2 are not eye-witnesses. The daughter and daughter-in-law of the informant both are also not eye-witnesses. The father-in-law of the informant, who according to her has reached the place of occurrence on hearing cries, has not been examined during the trial. The investigating officer did not find blood-stained soil at the place of occurrence and he has not seized the clothes of the deceased and other incriminating materials from the place of occurrence. 8. The learned Sessions Judge has held that the medical evidence shows that Budhuram Yadav died due to head injury, which was caused by hard and blunt substance, such as, Gainta, and therefore the appellant is liable to be convicted and punished under section 302 I.P.C. 9. We find that the approach of the learned Sessions Judge on this issue was erroneous. According to the prosecution, the appellant was present at the place of occurrence before Budhuram Yadav arrived there and raised objection to digging of earth by him. The informant says that an altercation started between the appellant and her husband. This evidence eliminates possibility of premeditation. It is the consistent case of the prosecution that one Hoe blow was given by the appellant to Budhuram Yadav. There is some controversy about the weapon used by the appellant; in her fard-beyan the informant says that it was Hoe (Kudal), whereas in her cross-examination she says that it was Gainta. It is also pertinent to record that 18 days after the occurrence the investigating officer has allegedly recovered the Gainta at the instance of the appellant. 10. In the above facts, we hold that the prosecution has failed to establish the charge under section 302 I.P.C against the appellant and, accordingly, his conviction for the said offence is set-aside. 11. It is also pertinent to record that 18 days after the occurrence the investigating officer has allegedly recovered the Gainta at the instance of the appellant. 10. In the above facts, we hold that the prosecution has failed to establish the charge under section 302 I.P.C against the appellant and, accordingly, his conviction for the said offence is set-aside. 11. We also find that in the aforesaid state of evidence it cannot be inferred that the appellant had requisite intention or knowledge to cause death of Budhuram Yadav. No doubt the appellant has assaulted Budhuram Yadav and the injury found on him was grievous in nature; initially, a First Information Report was lodged for the offence under section 325 I.P.C, the death of Budhuram Yadav about 5 days after he was assaulted by the appellant becomes relevant for deciding the nature of offence committed by the appellant. 12. On the basis of the prosecution's evidence, the appellant is convicted under section 325 I.P.C. 13. On the question of sentence, we are of the opinion that punishment of R.I for Five years should be inflicted upon the appellant, but considering the fact that 22 years have passed since the appellant was put on trial and he has undergone imprisonment of about 4 years and 4 months, he is sentenced to imprisonment already undergone by him with fine of Rs. 10,000/- and in default of payment of fine he shall further undergo S.I for one month. 14. On payment of fine of Rs. 10,000/- the appellant, namely, Tonkaram Yadav @ Tonkadhar Gope, who is on bail, would stand discharged of liability of the bail-bonds furnished by him. 15. Accordingly, Criminal Appeal (D.B) No. 210 of 2001 is partly allowed. 16. We appreciate the efforts of Mr. Rajesh Kumar Dubey, (Retd. P.D.J) the learned Amicus. 17. The assistance rendered by Mr. Pranay Kumar Jaiswal, the learned A.P.P is also appreciated. 18. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills as per the Notification dated 23.11.2017. 19. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 20. Let lower-court records be sent to the court concerned forthwith.