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2019 DIGILAW 661 (JHR)

Nagendra Prasad Sonar v. State of Jharkhand

2019-03-07

RAJESH SHANKAR

body2019
JUDGMENT : The present criminal appeal has been preferred against the judgment of conviction and the order of sentence dated 29.11.2003 & 02.12.2003 respectively passed by the learned Additional Sessions Judge, F.T.C-VI, Hazaribagh in S.T. No. 218/92 whereby appellant Nagendra Prasad Sonar has been convicted under Section 304 Part-I of the IPC and appellant Yamuna Sonar has been convicted under Section 304 Part-I read with Sections 34/114 of the IPC and both the appellants have been sentenced to undergo rigorous imprisonment for six years with a fine of Rs.5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for further six months. 2. The prosecution story in brief, as stated in the fardbeyan of the informant (Kalipodo Sao Halwai) recorded on 13.05.1991 at about 17.30 Hrs. at Silver Zublee Hospital, Rajrappa is that on 13.05.1991 at about 5 PM, he along with his uncle Sitaram Halwai were at the vegetable shop of Jhari Mahto. On hearing ‘Hulla’, they came on road and saw that accused Nagendra Prasad Sonar had caught hold the ‘Ganji’ of his younger brother Bajrang Sonar (deceased) on the road in front of his shop and was threatening to kill him. In the meantime, accused Yamuna Sonar came there with a sword in his hand and handed over the same to accused Nagendra Prasad Sonar saying that ‘Sale Ko Jan Se Mar Do’. Thereafter, accused Nagendra Prasad Sonar pierced the sword in the chest of Bajrang Sonar due to which he fell down on the ground and was struggling for his life. Accused Nagendra Prasad Sonar again assaulted his brother with the sword causing injury on his left hand. Accused Madan Sonar holding a ‘Pharsa’, accused Sanjay Sonar holding a ‘Bhala’ and accused Mahendra Sonar holding a ‘Lathi’ in their hands came there and started abusing the informant party. Thereafter, co-accused Chandar Sonar and Kishori Sonar came there and told that ‘Theek Kiya, Aur Mar Karo’. In the meantime, Yugal Lahiri, Nand Kishore Prasad Gupta, Shankar Gupta and other villagers reached the place of occurrence and pacified the quarrel. In course of quarrel, Sitaram Halwai (the uncle of the informant) snatched the ‘Pharsa’ from the hands of accused Madan Sonar. Thereafter, the informant took his brother (Bajrang Sonar) to Silver Zublee Hospital, Rajrappa in a ‘Jeep’ where the doctor declared him dead. In course of quarrel, Sitaram Halwai (the uncle of the informant) snatched the ‘Pharsa’ from the hands of accused Madan Sonar. Thereafter, the informant took his brother (Bajrang Sonar) to Silver Zublee Hospital, Rajrappa in a ‘Jeep’ where the doctor declared him dead. It has been alleged by the informant that the motive behind the alleged occurrence is that in the year 1984, accused Yamuna Sonar had constructed a shop on the land of the informant. It was agreed that the cost of construction of the shop would be deducted from the monthly rent of the shop and since then accused Yamuna Sonar was deducting the money from the monthly rent and after adjustment of entire cost of construction, the informant had demanded the rent 15 days prior to the alleged occurrence on which accused Yamuna Sonar had threatened him and since then they had enmity with him due to which all of them killed his brother. 3. On the basis of the fardbeyan of the informant, Ramgarh (Project) P.S. Case No. 112 of 1991 dated 13.05.1991 was lodged under Sections 302/34 of the IPC against seven accused persons including the appellants. After investigation, the police submitted charge sheet against all seven accused persons. Cognizance was taken on 22.08.1991 against them under Sections 302/34 & 114 of the IPC. Out of seven accused persons, one was absconding and as such the case of six accused persons was committed to the Court of Session for trial. Thereafter, the charges were framed on 24.07.1999 against the six accused persons including the appellants under Sections 302/34 & 114 of the IPC. The statements of the accused persons were recorded on 04.09.2002 under Section 313 of the Cr.P.C in which they denied the allegations levelled against them. 4. In order to substantiate the charges framed against the appellants, the prosecution has examined altogether seven witnesses. P.W.1-Nand Kishore Prasad Gupta has been declared hostile by the prosecution. P.W.2-Shankar Gupta has been declared hostile by the prosecution. P.W.3-Sitaram Halwai is the uncle of the deceased. P.W.4-Jhari Mahto has been declared hostile by the prosecution. P.W.5-Jagarnath Sao is the father of the deceased. P.W.6-Kalipado Sao @ Halwai is the informant and the brother of the deceased. P.W.7-Dr. Nidhish Saran had conducted the postmortem examination on the dead body of the deceased and proved the postmortem report. Defence has also examined four witnesses, who are D.W.1-Dr. P.W.4-Jhari Mahto has been declared hostile by the prosecution. P.W.5-Jagarnath Sao is the father of the deceased. P.W.6-Kalipado Sao @ Halwai is the informant and the brother of the deceased. P.W.7-Dr. Nidhish Saran had conducted the postmortem examination on the dead body of the deceased and proved the postmortem report. Defence has also examined four witnesses, who are D.W.1-Dr. Sanjay Kumar Subodh, D.W.2-Jatan Sharma, D.W.3-Moti Ram and D.W.4-Dr. Basant Kumar Mishra. 5. Learned Trial Court, placing reliance on the evidences available on record, acquitted four accused persons, however, held the appellants guilty of the alleged offences and thus convicted and sentenced them as indicated hereinabove. 6. The learned Sr. counsel for the appellants has assailed the impugned judgment of conviction and the order of sentence on the ground that though in the FIR, the motive was projected to be non-payment of the rent of the shop, however, during examination, P.W.6 has deposed that he had not stated the said fact before the police. It is further submitted that no case of unlawful assembly or any common intention was made out in the FIR and it never existed even before and in such circumstance, the learned Trial Court came to a conclusion that the witnesses are not honest and trustworthy. Despite such observation, the appellants have been convicted. It is clear from the evidence led before the learned Trial Court that appellant Yamuna Sonar had also sustained grievous injury on his person and had apprehension of being killed and in such circumstance, he had the right of private defence having regard to the provisions as contained in Section 100 of the IPC. It is further submitted that the case, as made out in the FIR, is that one of the accused persons was alleged to have caught hold of the ‘Ganji’ of the deceased and at that time he was empty handed and it was the other accused, who had brought the sword and had given it to him and then he had assaulted the deceased. It is thus obvious that by that time one of the accused persons had already received injury on his person. In such circumstance, it is submitted that no offence whatsoever has been committed by the appellants and their conviction under Section 304 Part-I of the IPC is bad both in law as well as on facts and the same is liable to be set aside. In such circumstance, it is submitted that no offence whatsoever has been committed by the appellants and their conviction under Section 304 Part-I of the IPC is bad both in law as well as on facts and the same is liable to be set aside. It is further submitted that on the one hand, the learned Trial Court has held that major portion of the prosecution story is not reliable and on the other hand, the appellants have been held guilty of the offences under Section 304 Part-I of the IPC and thus both the findings are contradictory to each other. The appellants had also sustained grievous injuries on their persons due to the assaults made to them at the time of the alleged occurrence. However, the said aspect has not been explained by the prosecution, rather the same has been denied, which goes to show unfairness on the part of the prosecution. It is also submitted that the independent witnesses have been declared hostile and the prosecution witnesses are highly interested and as such their evidences were required to be analyzed by the learned Trial Court with great caution. 7. On the contrary, while supporting the impugned judgment of conviction and the order of sentence, Mr. A. K. Sahani, learned counsel for the informant, submits that though the charge was framed under Sections 302/34 of the IPC against the appellants, however, after appreciating the evidences led during the trial, the learned Trial Court has passed the impugned judgment of conviction and the order of sentence under Section 304 Part-I read with Sections 34 & 114 of the IPC and hence the same needs no interference by this Court. It is further submitted that the prosecution witnesses have consistently supported the factum of commission of the alleged offence by the appellants. It is also submitted that all the accused persons assembled with a common intention armed with weapons for commission of the alleged offence and thus Section 34 of the IPC has rightly been applied by the learned Court below while convicting and sentencing the appellants. 8. Heard learned counsel for the parties and perused the L.C.R. To appreciate the contentions of learned counsel for the parties, I have perused the evidence of the witnesses adduced before the learned Trial Court from both the sides. Out of seven prosecution witnesses, P.Ws. 8. Heard learned counsel for the parties and perused the L.C.R. To appreciate the contentions of learned counsel for the parties, I have perused the evidence of the witnesses adduced before the learned Trial Court from both the sides. Out of seven prosecution witnesses, P.Ws. 1, 2 & 4 have been declared hostile by the prosecution. 9. P.W.3 is the uncle of the informant, who has supported the prosecution case and has claimed to be an eye-witness to the alleged occurrence. He has deposed that at the time of the alleged occurrence, he along with the informant was at the vegetable shop of P.W.4. Suddenly they heard the noise of quarrel and saw appellant Nagendra Prasad Sonar catching hold of the deceased and appellant Yamuna Sonar handed over a sword to appellant Nagendra Prasad Sonar and told him to kill the deceased whereupon, appellant Nagendra Prasad Sonar pierced the sword in the left side of the chest of the deceased as a result of which he died. He further deposed that the alleged occurrence took place due to land dispute. 10. P.W.5 is the father of the deceased. He has deposed that when he along with his son (deceased) was in the shop, seven accused persons came there and appellant Yamuna Sonar handed over a sword to appellant Nagendra Prasad Sonar and told him to kill them, upon which appellant Nagendra Prasad Sonar assaulted the deceased on his chest with the sword due to which he fell down on the ground and died. He further deposed that there was land dispute from before between the parties. 11. P.W.6 is the informant of the case. He has deposed that on 13.05.1991 at about 5.00 P.M, he along with his uncle-P.W.3 were at the vegetable shop and suddenly he heard the noise of quarrel and saw that in front of his shop, all seven accused persons were present with ‘Lathi’ and ‘Danda’. Appellant Nagendra Prasad Sonar caught the ‘Ganji’ of the deceased and was threatening him. In the meantime, appellant Yamuna Sonar handed over a sword to appellant Nagendra Prasad Sonar by which appellant Nagendra Prasad Sonar assaulted his brother (the deceased) on his chest due to which he fell down on the ground and then appellant Nagendra Prasad Sonar again assaulted the deceased on his right shoulder due to which he died on the spot. In the meantime, appellant Yamuna Sonar handed over a sword to appellant Nagendra Prasad Sonar by which appellant Nagendra Prasad Sonar assaulted his brother (the deceased) on his chest due to which he fell down on the ground and then appellant Nagendra Prasad Sonar again assaulted the deceased on his right shoulder due to which he died on the spot. P.W.6 has further deposed that there was land dispute between the parties and about six months prior to the alleged occurrence, the appellants were advised to move the Civil Court, however, they did not move the Civil Court and committed murder of the deceased. 12. P.W.7 is the doctor who had conducted the post-mortem examination on the dead body of the deceased and proved the post-mortem report as Ext.4. He found one penetrating incised wound on the left side of the chest of the deceased. 13. D.W.1 is the doctor, who had examined appellant Nagendra Prasad Sonar at jail and had found grievous as well as simple injuries on his person. D.W.4 is also the doctor, who had examined appellant Nagendra Kumar Sonar at Silver Jubliee Hospital, Rajrappa Area and found simple as well as grievous injuries on his person. D.W.2 has proved the registered sale deed and rent receipt and D.W.3 has proved the fardbeyan of the counter case lodged by the accused side. 14. The learned Sr. counsel for the appellants puts much emphasis on his argument that even if the alleged occurrence is treated to be true, appellant Nagendra Prasad Sonar had also sustained grievous injuries on his person and as such his right of private defence extends to causing death of the aggressor. 15. On perusal of the evidences led by the parties, it appears that undoubtedly sudden quarrel had taken place between the deceased and his companions on the one side and the appellants and their companions on the other side and for the said occurrence, both the parties had lodged case and counter case against each other. So far as the injuries caused to appellant Nagendra Prasad Sonar are concerned, it appears from the deposition of D.W.4 that injury No.2 ‘fracture of radius bone (distal 1/3) of left side’ is grievous in nature. During cross-examination, the doctor deposed that such injury may be caused by fall on rock. So far as the injuries caused to appellant Nagendra Prasad Sonar are concerned, it appears from the deposition of D.W.4 that injury No.2 ‘fracture of radius bone (distal 1/3) of left side’ is grievous in nature. During cross-examination, the doctor deposed that such injury may be caused by fall on rock. On perusal of the fardbeyan of the counter case, it appears that appellant Nagendra Prasad Sonar had himself admitted that when he was going to pacify the quarrel, he fell down on the ground and under such circumstance, there is some doubt if the grievous injury so caused to appellant Nagendra Prasad Sonar was inflicted during the alleged occurrence. 16. In the case of Jumman Vs. State of Punjab, reported in AIR 1957 SC 469 , the Hon’ble Supreme Court has held as under:- “22. In such a case where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, would it be correct to assume private defence for both sides? We are of the view that such a situation does not permit of the plea of private defence on either side and would be a case of sudden fight and conflict and has to be dealt with under Section 300 IPC, Exception 4. 23. The matter has to be viewed in this way. It is clear that there was no premeditation and therefore when the contending factions met accidentally and attacked each other, the conflict resulted in a sudden fight, in the heat of passions, upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. On the finding that both the parties had armed, there was no undue advantage taken by either. Hence Exception 4 to Section 300 IPC applies with the result that the offence is under Section 304 (Part I) of the Indian Penal Code.” 17. In the present case, so far as the involvement of the appellants in the alleged occurrence is concerned, the prosecution witnesses especially P.Ws. 3, 5 & 6 have consistently deposed that appellant Yamuna Sonar came with a sword and handed over to appellant Nagendra Prasad Sonar, who pierced the same in the left side of the chest of the deceased as a result of which he died. 18. 3, 5 & 6 have consistently deposed that appellant Yamuna Sonar came with a sword and handed over to appellant Nagendra Prasad Sonar, who pierced the same in the left side of the chest of the deceased as a result of which he died. 18. While assailing the impugned judgment of conviction and the order of sentence, the learned Sr. counsel for the appellants submits that the learned Court below has itself found several inconsistencies in the deposition of the prosecution witnesses and as such the impugned judgment of conviction and the order of sentence is bad in law. In my opinion, though the learned Trial Court found some inconsistencies in the statements of the prosecution witnesses, however, so far as the role of the appellants in causing the death of the deceased is concerned, the statements of the prosecution witnesses are consistent and from the entire evidence, it transpires that the alleged occurrence took place due to sudden fight between both the sides. However, careful consideration of the evidences led during the trial, it is not a fit case to give benefit of private defence to the appellants under Exception 4 to Section 300 of IPC. As such, the appellants have rightly been found guilty of committing offences under Section 304 Part-I read with Section 34 IPC and also Section 114 IPC by the learned Trial Court. 19. In the result, I do not find any merit in the present appeal and the same is accordingly dismissed. The bail granted to the appellants is hereby cancelled and they are directed to surrender before the learned Court below for serving the remaining period of sentence.