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2019 DIGILAW 866 (JHR)

Sanat Mandal v. State Of Jharkhand

2019-04-11

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard learned counsel Mrs. Vandana Singh, appointed by JHALSA to represent the appellant and learned Additional Public Prosecutor Mr. Ravi Prakash. 2. This appellant has faced conviction in connection with Sessions Trial No. 310/2010 /77/2013 arising out of Pathargama (Basantrai) P.S. Case No. 65/2010 corresponding to G.R. No. 487/2010 under section 302 of the Indian Penal Code and is undergoing incarceration since 02.05.2010 vide impugned judgment of conviction dated 29.11.2013 and order of sentence dated 06.12.2013 rendered by the learned District and Additional Sessions Judge-II, Godda. 3. As per the fardbeyan of the informant Ashtami Kumari aged 18 years, daughter of the deceased Keshav Tatwa recorded by ASI S. Sawaiyan in village Pachua kita at her house at 8.30 am on 01.05.2010, her father was sleeping on the previous night along with the accused Sanat Mandal, cousin of the informant, who had come to attend the shradh on the death of son of the agnate Kameshwar Tatwa namely Lalu Tatwa who died due to snake bite. At 10.00 in the night when she went from her old house to the new house, where both of them were sleeping, in order to provide water to cattle, she saw the accused Sanat Mandal assaulting the father of the informant with a garasha on the head. She raised a brawl, on which he starting fleeing. Some people assembled there and took her father to the doctor and some of them chased Sanat Mandal who was caught and kept apprehended. Since the treatment at the local Godda hospital was not good enough, he was taken to Bhagalpur for treatment. According to the informant, her father was in unconscious state and therefore, could not give his statement. 4. Upon these allegations, case was instituted under sections 324/307 of the Indian Penal Code against the sole accused Sanat Mandal vide Pathargama. (Basantrai) P.S Case No. 65/2010 dated 01.05.2010 at 17.30. hours. During course of treatment, injured died. After conclusion of the investigation, charge sheet bearing no. 32/2010 dated 23.07.2010 under section 302 of the Indian Penal Code was submitted against the sole accused. Cognizance was taken and case was committed to the Court of learned Session Judge where charges were framed under section 302 of the Indian Penal Code on 29.11.2010. On being read over and explained to the accused in Hindi, he pleaded not guilty and claimed to be tried. 5. Cognizance was taken and case was committed to the Court of learned Session Judge where charges were framed under section 302 of the Indian Penal Code on 29.11.2010. On being read over and explained to the accused in Hindi, he pleaded not guilty and claimed to be tried. 5. Prosecution adduced nine witnesses in support of its case, named as under: P.W.1: Harendra Mandal P.W.2: Kailash Mandal P.W.3: Bhubneshwar Tatwa P.W.4: Muni Lal Tatwa P.W.5: Md. Iqbal P.W.6: Phuko Devi P.W.7: Sudhir Kumar Verma P.W.8: Ashtami Kumari P.W.9: Sidheshwar Savaiya It also adduced certain documentary evidence up to Ext.4, as under: Ext.1: Fardbeyan proved by P.W.7 Ext.1/1: Forwarding endorsement of Fardbeyan, proved by P.W.7 Ext. 1/2: Case Registration endorsement of Fardbeyan proved by P.W.7 Ext.2: Carbon copy of inquest report proved by P.W.9 Ext.3: Formal FIR proved by P.W.9 Ext.4: Postmortem report. Ext-4 is the postmortem report of the deceased admitted on 20.04.2012 without objection from the accused. Rest of the documents were also admitted without objection. 6. After closure of the prosecution evidence, accused in his statement under section 313 of the Cr.PC denied his involvement in the offence and pleaded himself to be innocent. 7. Learned Trial Court thereafter considered the evidence on record and also took into account the submissions of the parties and convicted the accused for the charge under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life with a fine of Rs. 1,000/-, in default whereof, to further undergo S.I. For three months. 8. Learned counsel Mrs. Vandana Singh, in order to assail the impugned findings, inter-alia has made the following submissions: According to her, the prosecution case has not been proved to the hilt and beyond reasonable doubt to sustain the conviction. The victim died after four days. The doctor who conducted postmortem on the dead body of the deceased Keshav Tatwa, was not adduced by the prosecution and as such, the postmortem report has not been brought on record in a legal manner. Accused has suffered prejudice due to non-examination of the medical officer. The postmortem report, in itself, shows that the injured was treated earlier and had stitched wounds. The opinion of the doctor conducting the postmortem indicates that hard and blunt substance was used for committing the offence. Accused has suffered prejudice due to non-examination of the medical officer. The postmortem report, in itself, shows that the injured was treated earlier and had stitched wounds. The opinion of the doctor conducting the postmortem indicates that hard and blunt substance was used for committing the offence. As per the informant (P.W.8), the deceased was attacked by garasha (sharp cutting weapon) by the accused/appellant. The medical evidence therefore overrules the ocular evidence. As such, the case of the prosecution should fail. Learned counsel for the appellant relies upon the ratio rendered in the case of Mahavir Singh versus State of Madhya Pradesh [ (2016) 10 SCC 220 ]. She further submits that since the medical evidence has not been brought on record in a proper manner, the prosecution has failed to prove that the death was caused as a consequence of the assault allegedly inflicted by the appellant. It is further argued that no witnesses except the informant have stated that the accused was apprehended by the villagers. The Arrest Memo has also not been produced to justify the apprehension of the accused by the villagers just after the incidence. As a matter of fact, the accused was arrested later on and produced in the Court on 02.05.2010. Statement of other prosecution witnesses in particular P.W.4-Muni Lal Tatwa, P.W.5-Md. Iqbal and P.W.6-Phuko Devi, widow of the deceased attributes knowledge from the mouth of the victim, though P.W.8, informant has categorically stated that her father was not conscious. As such, these prosecution witnesses contradict the informants story about manner of occurrence. The prosecution has not been able to show any motive behind the occurrence and there is no case of land dispute or enmity from before. The appellant had come to attend the Shradh ceremony of the son of the agnate of the informant and was sleeping by the side of the victim Keshav Tatwa, which indicates that there was good relationship between the accused and the informant party. Since the death had occurred after four days, it cannot be attributed to the assault allegedly committed by the appellant. Thus, the intention to cause death is not made out and the accused/appellant is entitled to the benefit of doubt. Therefore, the appeal should be allowed by setting aside the judgment of conviction and order of sentence. 10. Learned counsel for the State Mr. Thus, the intention to cause death is not made out and the accused/appellant is entitled to the benefit of doubt. Therefore, the appeal should be allowed by setting aside the judgment of conviction and order of sentence. 10. Learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor has argued in support of the conviction rendered by the learned Trial Court. It is submitted that they are based upon due consideration of the entire materials brought by the prosecution. Informant is an eye witness aged 18 years old girl whose narration of the incidence in the fardbeyan finds due support during her testimony in the trial. The time of occurrence, place of occurrence and manner of occurrence, all have been adequately proved through Astami Kumari (P.W.8) alone, though other prosecution witnesses who have also rushed to the place of occurrence such as Muni Lal Tatwa (P.W.4), Md. Eqbal (P.W.5) and Phuko Devi (P.W.6), widow of the deceased, have corroborated the same. The medical evidence has been duly brought on record without any objection from the accused and admitted in evidence. Therefore, it is not open for the appellant to object to it being considered as admissible evidence to prove the prosecution case. The victim though died after four days but was never discharged from the hospital. No suggestion have been made by the defence either to show that death was not as a result of serious injuries inflicted on the vital part of the body of the victim i.e, head by sharp cutting weapon like garasa and not for any other reason such as infection, septicemia, etc. Therefore, the causation and effect of the assault both have been adequately proved. The accused bore an intention to inflict injury knowing it to be likely to cause death and injury proved were sufficient to cause death in ordinary circumstances. As such, the case of prosecution falls under Section 300 thirdly of the I.P.C. Minor inconsistency in the statement of the prosecution witnesses should not affect the core of the prosecution case. Merely because the weapon of assault has not been seized by the Investigating Officer, the accused cannot derive benefit due to such faulty investigation. As such, the case of prosecution falls under Section 300 thirdly of the I.P.C. Minor inconsistency in the statement of the prosecution witnesses should not affect the core of the prosecution case. Merely because the weapon of assault has not been seized by the Investigating Officer, the accused cannot derive benefit due to such faulty investigation. The case hinges on direct evidence i.e., testimony of Astami Kumari (P.W.8), an eye witness and since all the ingredients of the offence stand duly established, there is no element of doubt left to interfere in the impugned judgment of conviction. The appeal is therefore fit to be dismissed being devoid of merit. 11. We have considered the submission of learned counsel Mrs. Vandana Singh, Amicus Curiae appointed by JHALSA and learned Additional Public Prosecutor Mr. Ravi Prakash and also perused the entire materials on record including the fardbeyan; framing of the charge; evidence of nine prosecution witnesses; four prosecution exhibits; statement of the accused recorded under Section 313 Cr.P.C. We have also gone through the impugned judgment of conviction and order of sentence. 12. Upon careful scanning of the prosecution evidence in entirety, it appears that Informant Astami Kumari (P.W.8), aged 18 years is the person who put the law into motion and projected herself as an eye witness. As per her deposition, the incidence occurred at 10.00 in the night while she had gone to provide starch of rice to the cattle in the new house adjacent to the old house. She saw the accused Sanat Mandal assaulting her father on the head with a garasa. When she raised brawl, accused Sanat Mandal fled away towards north. By that time, nearby villagers assembled there. Her father was bleeding from head. He was taken to Godda Sadar Hospital and thereafter referred to Bhagalpur Hospital from where he was referred to Patna Hospital for better treatment. He died while undergoing treatment at Patna after four days. She has identified her signature on the fardbeyan which has proved and marked as Ext.1. In her cross examination she has stated that the accused was her cousin and was sleeping on an adjacent cot besides her father in the new house. They had earlier also slept like that. There were 4-5 cattle tied there and after sunset and milching of the cattle she had gone to offer them starch made out of rice. In her cross examination she has stated that the accused was her cousin and was sleeping on an adjacent cot besides her father in the new house. They had earlier also slept like that. There were 4-5 cattle tied there and after sunset and milching of the cattle she had gone to offer them starch made out of rice. The incidence occurred on a moonlit night. Her father was sleeping at a distance of 2-4 hands from the place where cattle was tied. No one else had gone along with her. She has denied that there was any previous enmity or quarrel with the accused. She denied that her father had got injured due to fall on the cattle pit. From her testimony, we find that she has duly supported the prosecution case. 13. Though, learned counsel for the appellant has taken a plea that the Doctor who conducted the post mortem was not adduced as prosecution witness, but we find that the post mortem report was brought on record and admitted without any objection on 20.04.2012. As such, it has been taken into consideration by the learned Trial Court while recording its findings. The post mortem report inter alia gives the following description of the injuries apart from the opinion relating to cause of death quoted hereunder: "(A) Stitched wound: (I) (L) frontal & (L) eyebrow to (L) parietal (10 cm), (2) (L) parietal to (L) occipital (13 cm), (3) (L) temporal, parietal to occipital regions (8 cm) (B) On further dissection: Head: scalp internally massively contused all over with underlying comminuted fracture in (L) temporal & parietal (17cm x 10cm) regions. Extradural haemorrhage all over. Brain contused all over & lacerated at places. Lacerated brain tissues exuding out through stitched wound. Neck: Respiratory tract pale. Chest: Lungs congested, heart full. Abdomen: stomach pale, has watery fluid (20 ml). All other viscera pale. Bladder empty. Rest NAD. (C) Opinion: I. Injuries are ante mortem. Opinion regarding stitched wound to be had from the doctor who attended earlier. Other injuries are caused by hard and blunt fersa. (2) Death is due to above noted injuries. (3) TSD: - 03 to 18 hours (appox) since P.M. Exam." 14. All other viscera pale. Bladder empty. Rest NAD. (C) Opinion: I. Injuries are ante mortem. Opinion regarding stitched wound to be had from the doctor who attended earlier. Other injuries are caused by hard and blunt fersa. (2) Death is due to above noted injuries. (3) TSD: - 03 to 18 hours (appox) since P.M. Exam." 14. From perusal of the post mortem report, it is evident that the deceased had suffered injuries on his scalp which led to massive internal contusion all over with underlying comminuted fracture in left temporal and parietal (17 x 10 cm) regions. There was extradural haemorrhage all over. The brain was contused all over and lacerated at places. The post mortem report has been marked as Ext.4. 15. From the evidence on record, we find that Harendra Mandal (P.W.1) was declared hostile. Keshaw Mandal (P.W.2) is a hearsay witness who had arrived at the place of occurrence upon hearing brawl. He has stated that the victim died during treatment at Patna. He also identified the accused. He had reached the place of occurrence after 10 minutes and the deceased was not in a position to speak. He has not seen the occurrence. Bhuneshwar Tatwa (P.W.3) is also a hearsay witness. He has stated that the deceased was his relative and so is the accused. He had reached the place of occurrence on hearing hulla (brawl) from the informant, daughter of the deceased. He has described the place of occurrence stating that his house was north to the place of occurrence. Muni Lal Tatwa (P.W.4) claims to have reached the place of occurrence on hearing brawl from the informant, but he has also stated in his chief that the victim had told him that Sanat Mandal has assaulted him. Thereafter, he was taken for treatment up to Patna. However, he has denied that the Police had recorded his statement that victim had narrated to him that Sanat Mandal had assaulted him. Md. Eqbal (P.W.5) who claims to have reached the place of occurrence on hearing brawl, claims to have seen the victim being assaulted. His house is at a distance of 10 yards from that of the victim. This witness has also claimed to have been told by the victim that he was assaulted, but this prosecution witness also denied that he has narrated so to the Police. His house is at a distance of 10 yards from that of the victim. This witness has also claimed to have been told by the victim that he was assaulted, but this prosecution witness also denied that he has narrated so to the Police. According to him he has reached the place of occurrence after hearing brawl. Phuko Devi (P.W.6) is the widow of the deceased. In the material part of her deposition, she has supported the case set up by the informant. She claims to have reached the place of occurrence upon hearing hulla from her daughter Astami Kumari (P.W.8). She however has also stated that she had seen her husband sitting there with hands on his head and on being asked, informed her that Sanat Mandal had assaulted him with garasa. She has further stated that the victim died during treatment at Patna after two days. Her statement was recorded by the Police after she reached from Patna. She has house at two places. She was having food at the time of incidence in her other house. In her cross examination, she has denied the fact that victim had told her what was narrated to the Police. Sanat Mandal is her nephew. Sudhir Kumar Verma (P.W.7) has conducted the investigation in the instant case and also submitted charge-sheet on 23.07.2010. The fardbeyan of the informant Astami Kumari was recorded by the ASI Sidheshwar Sebaiya in his handwriting. The signature of the informant on the same has been proved and marked as Ext. 1; forwarding thereupon has been proved and marked as Ext.1/1; endorsement on the fardbeyan in the handwriting of Anup V.P. has been proved and marked as Ext. . In his cross examination, he has denied that Ext.-1 was recorded in his presence. He has denied having seized any material during investigation. The inquest report which has been proved and marked as Ext. 2 shows that it was prepared on 04.05.2010 at 11.00 a.m. at Rajeshwar Hospital, Patna. 16. Analysis of the evidence on record in such manner leads us to the conclusion that prosecution witness no. 8 is a truthful and reliable witness who has duly supported the prosecution case. The victim had suffered serious injury on the head which the informant claimed to have been inflicted by the accused Sanat Mandal by means of garasa. 16. Analysis of the evidence on record in such manner leads us to the conclusion that prosecution witness no. 8 is a truthful and reliable witness who has duly supported the prosecution case. The victim had suffered serious injury on the head which the informant claimed to have been inflicted by the accused Sanat Mandal by means of garasa. As such, the injuries were found on the vital part of the body i.e, head. The victim had undergone treatment at Godda Hospital, thereafter at Bhagalpur Hospital and subsequently referred to Patna Hospital where he died after 4 days. As per the post mortem report, death was caused due to injuries mentioned therein. Since some of the injuries have already been stitched, the Doctor who conducted the post mortem examination, refrained from expressing any opinion about the stitched wound. However, on dissection, he found massive internal contusion at the scalp all over with underlying comminuted fracture in left temporal and parietal (17 x 10 cm) regions. There was extradural haemorrhage all over. The brain was contused all over and lacerated at places. Lacerated brain tissues were exuding out through stitched wound. In the opinion of the doctor, these injuries were sufficient to cause death. Injury found on the body of the deceased which lead to his death duly corroborates the testimony of the informant Astami Kumari (P.W.8) since as per her statement, appellant Sanat Mandal had assaulted on the head of the deceased who could not recover from the assault even after treatment at Bhagalpur and finally at Patna. It is thus evident that the injuries inflicted by the accused were the cause of death and they were of such nature which were sufficient in the ordinary course of nature to cause death. 17. The ingredients of section 300 thirdly of the I.P.C. therefore duly stand corroborated by the prosecution evidence namely (i) the existence of injuries have been proved by the prosecution (ii) the nature of the injuries have also been proved by the prosecution as being on the part of the head (iii) it has also been proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Fourthly, it has been proved that the injury described above were sufficient in the ordinary course of nature to cause death. In view of the reasons and the findings recorded herein above, appellant cannot escape conviction. [See: AIR 1958 SC 465 , Virsa Singh Versus State of Punjab and (2007) 15 SCC 327 , Sellappan versus State of Tamil Nadu] 18. Upon due consideration of the submission of the rival parties, we do not find any error in appreciation of the evidence by the learned trial court either to interfere in the judgment of conviction and order of sentence. As such the appeal is dismissed being devoid of merits. Let the Lower Court Record be sent down to the Court below forthwith along with copy of the judgment. 19. Before parting, we record our appreciation to the able assistance rendered by learned counsel Mrs. Vandana Singh appointed by JHALSA to represent the appellant during hearing of this case. The Member Secretary, JHALSA would bear her admissible legal remuneration on production of the certified copy of the judgment along with an application within a period of four weeks therefrom.