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2019 DIGILAW 873 (JHR)

Madan Ravidas v. State of Jharkhand

2019-04-12

RATNAKER BHENGRA

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JUDGMENT : RATNAKER BHENGRA, J. 1. When the matter was called out, learned counsel for the appellants as well as learned counsel for the State submitted that one of the appellants namely Madan Ravidas had passed away. Learned counsel for the appellants also submitted a photocopy of death certificate of the deceased which is taken on board. Hence, appeal of appellant Madan Ravidas stands abated. 2. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 8.4.2003 & 9.4.2003 respectively passed by the 1st Additional Sessions Judge, Pakur in connection with Sessions Case No. 260 of 1997 arising out of Pakur (T) P.S. Case no. 198 of 1996, G.R. no. 387 of 1996 whereby and whereunder appellants were convicted u/s 304 Part II/34 of the IPC and sentenced to undergo R.I. for seven years under section 304 Part II of the Indian Penal code. 3. The case of the prosecution as per fardbeyan of the informant Tuni Ravidas PW-5 is that on 3.10.1996 at about 8 p.m. when she was cooking food in her house her brother Gujra Ravidas was saying filthy words in his courtyard as some one had stolen his money from his house. On hearing people from the neighbourhood namely Madan Ravidas, Mohan Ravidas and Kisto Ravidas came there and assaulted Gujra Ravidas. On hearing alarm she went there and saw that the accused persons Madan Ravidas, Mohan Ravidas and Kisto Ravidas were slapping his brother Gujra Ravidas. She restrained the accused persons but no heed was given by the accused appellants. Madan Ravidas and Mohan Ravidas were saying to kill Gujra Ravidas. Thereafter Kisto Ravidas pressed his chest with lathi as a result of which he fell down and became unconscious. Thereafter accused persons fled away. Kotal Ravidas, Parmeshwar Ravidas and Samchandra Ravidas all took away Gujra Ravidas to his house and massaged oil on his body to keep the body warm but Gujra Ravidas died. 4. On the basis of above fardbeyan of informant Pakur (T) P.S. case No. 198 of 1996 was registered u/s 302/34 IPC. After completion of investigation, charge-sheet was submitted against the accused persons for the offence U/Ss. 302/34 of the IPC. 4. On the basis of above fardbeyan of informant Pakur (T) P.S. case No. 198 of 1996 was registered u/s 302/34 IPC. After completion of investigation, charge-sheet was submitted against the accused persons for the offence U/Ss. 302/34 of the IPC. Cognizance was taken and the case was committed to the court of Sessions and thereafter charges were framed against the accused persons U/Ss.302/34 of the IPC to which they pleaded not guilty and claimed to be tried. Prosecution in order to prove its case has examined altogether six witnesses and on conclusion of trial the appellants were convicted and sentenced as aforesaid. Hence, this appeal. 5. P.W.-5 is Tuni Ravidas, the informant of this case and sister of the deceased. She deposed that two years ago on Thursday at about 7 p.m. she was in her house. On hearing hulla of Mohan and Madan she went to the house of her brother Gujra Ravidas. There she saw that Mohan Ravidas and Madan Ravidas were slapping her brother. Thereafter Kisto Ravidas exerted pressure with lathi on the chest of her brother Gujra Ravidas as a result he fell down. She took her brother in the house and tried to warm up his body by rubbing oil but Gujra Ravidas died. She further deposed that in the next morning the police came and thereafter fardbeyan was recorded by Daroga Jee, who read over the same, and she finding it true put her thumb impression upon it. She had identified three accused persons in the Court. In her cross-examination she deposed that she massaged oil for three to four hours but inspite of her best efforts her brother died. 6. PW-3 Kotal Ravidas deposed that on the day of occurrence he was in his house. He heard hulla of his maternal uncle Gujra Ravidas and went to his house. There he saw accused persons Mohan Ravidas, Madan Ravidas and Kisto Ravidas assaulting Gujra Ravidas. Kisto Ravidas exerted pressure with lathi on the chest of Gujra Ravidas as a result of which he fell down and thereafter he died. Thereafter, the accused persons fled away. Gujra Ravidas was carried to his house and his body was massaged by oil but he died. In his cross-examination he deposed that his house is ten-twenty hands away from the house of Gujra Ravidas. 7. Thereafter, the accused persons fled away. Gujra Ravidas was carried to his house and his body was massaged by oil but he died. In his cross-examination he deposed that his house is ten-twenty hands away from the house of Gujra Ravidas. 7. P.W.-4 Samchandra Ravidas is minor son of deceased aged about 8 years at the time of giving evidence. He deposed that on the day of occurrence he was in his house. Then accused persons Madan Ravidas, Mohan Ravidas and Kisto Ravidas came to his house and said filthy words to his father. Madan and Mohan started slapping his father and the accused Kisto Ravidas exerted pressure by lathi on the chest of his father causing his death, 8. PW-1 Budhan Ravidas and PW-2 Hare Ram Ravidas are hearsay witnesses and PW-6 David Murmu is a formal witness who proved formal FIR marked as Ext.2. ARGUMENTS ON BEHALF OF APPELLANTS: 9. Learned counsel for the appellants argued that though PW-2 Hare Ram Ravidas is a hearsay witness however, he had seen the body of the deceased and deposed that he did not see any mark of injury on the body which indicates that there was no major assault on the body because intention was not there to commit any harm to the deceased. The occurrence was the result of arguments relating to allegations of theft which was being made in the vicinity. Therefore, there was provocation on the part of the deceased. The absence of injuries demonstrates no major assault and only slaps were made. The weapons used by one of the appellants namely Kisto was a lathi which is not a dangerous weapon. From the evidence of PW-2 it also revealed that the deceased used to drink often and therefore his body was weakened and his death can rather be attributed to his weakened body because of drinking. Learned counsel also argued that no doctor has been examined and that prejudiced the case of the appellants because he would have been the appropriate person to throw more light on the post-mortem report. Learned counsel further argued that from the post-mortem report it is crystal clear that the doctor had not expressed any opinion regarding cause of death. Three persons are alleged to be involved in the crime in this case which has somehow resulted in the death of the deceased. Learned counsel further argued that from the post-mortem report it is crystal clear that the doctor had not expressed any opinion regarding cause of death. Three persons are alleged to be involved in the crime in this case which has somehow resulted in the death of the deceased. He further submitted that as the doctor had not been examined in this case to prove post mortem examination then it would difficult to pin point the cause of death but three persons have been sentenced to undergo R.I. for seven years who had no intention to commit such type of offence. Learned counsel further submitted that had there been any such intention they would have come with sharp cutting weapons which are commonly found in the villages. Learned counsel further argued that investigating officer had also not been examined in this case which also prejudiced the case of the appellants. 10. Learned counsel has referred to and relied upon the judgment of Punjab and Haryana High Court, in case of Dev Singh and Others Vs. State of Punjab reported in 2000 C.R.I. L.J. 347 wherein conviction was under section 304 Part II of IPC and benefit was given to an 80 years old person, sentencing him to period already undergone for meeting the ends of justice. Learned counsel for the appellants lastly submitted, without admitting the guilt of the appellants that occurrence is of 1996 and more than twenty years have passed and appellants have faced the rigours and vigours of trial and these mitigating circumstances shall be kept in mind while deciding the case. ARGUMENTS ON BEHALF OF STATE: 11. Learned counsel for the State on the other hand argued that the evidences of three eye witnesses are sufficient to pin point the guilt of the appellants. There is no need of examination of doctor or even the investigating officer, particularly when the post mortem report had also been brought on record. Even though, there is no definite cause of death, death has taken place. Learned counsel has also argued that in any way there are three witnesses who are eye witnesses to the occurrence and their evidences are reliable and trustworthy and thus, there is no reason to disbelieve their evidence. Even though, there is no definite cause of death, death has taken place. Learned counsel has also argued that in any way there are three witnesses who are eye witnesses to the occurrence and their evidences are reliable and trustworthy and thus, there is no reason to disbelieve their evidence. Particularly, when their evidences are the only explanation for the cause of death that has resulted and therefore, the offence of 304 Part II I.P.C. is adequately explained by the evidences of these three witnesses i.e. PW-5 Tuni Ravidas, the informant of this case, P.W.-4 Samchandra Ravidas who is a minor witness and son of deceased and also PW-3 Kotal Ravidas who lived only twenty hands away from the place of occurrence. Learned counsel has pointed out that first and foremost it is apparent from the evidence of the informant who was the next door neighbor of the deceased and thus she was able to heard the commotion taking place and then she immediately rushed there and able to see that three accused persons were slapping her brother and Kisto assaulted her brother with lathi. She had narrated the same thing in her fardbeyan and evidence and thus, there is no reason to disbelieve her evidence. Learned counsel also pointed out the evidence of PW-4 who is the child witness aged about eight years at the time of his giving evidence and pointed out that the Court had tested him about his ability to give evidence and finding him to be able to give evidence had taken his evidence and only because he was the son of the deceased , he should not be disbelieved. However, he is the child witness which needs to be considered. He had corroborated the prosecution case as well as the evidence of informant PW-5. PW-3 Kotal Ravidas also corroborated the evidence of PW-5 and PW-4. Counsel also reiterated that there is also the fardbeyan wherein it is apparent that the accused appellants herein had intention to inflict injuries on the deceased. They were saying that they will kill him and thus deceased started screaming and also seeking help from others to save him and thereafter he died. Hence, the learned court below rightly convicted and sentenced the aforesaid appellants. FINDINGS: 12. They were saying that they will kill him and thus deceased started screaming and also seeking help from others to save him and thereafter he died. Hence, the learned court below rightly convicted and sentenced the aforesaid appellants. FINDINGS: 12. Having heard both counsel and having gone through the records of the case and the evidences and in the facts and circumstances, it is noted that this is a case in which no doctor has been examined and even the investigating officer has not been examined, though it is a case in which there is conviction under section 304 Part II/34 IPC with a sentence of R.I. for seven years. Conviction has been based essentially on the evidence of three crucial witnesses who are PW-5 Tuni Ravidas and she is the informant of the case, PW-3 is Kotal Ravidas and the deceased was his maternal uncle and PW-4 Samchandra Ravidas a minor son of the deceased aged about 8 years at the time of giving of evidence. What is important to note in the case is that the death has occurred and conviction has taken place u/s 304 Part II/34 of the Indian Penal Code and therefore it is important to come to finding as to how the death has occurred, there has to be an explanation for the death of the deceased. 13. In fardbeyan the informant Turi Ravidas, PW-5 stated therein that on 3.10.1996 at about 8 p.m. when she was cooking in the house at the same time her brother Gujra Ravidas was saying filthy words in his courtyard in relation to some money being stolen from his house and then the three aforesaid appellants arrived there. She rushed to the place of occurrence and saw all the three appellants slapping Gujra Ravidas. She said the appellants not to beat his brother. Thereafter, Madan Ravidas and Mohan Ravidas exhorted to kill the deceased and then Kisto Ravidas exerted pressure with lathi on the chest of Gujra Ravidas as a result he fell down and became unconscious and thereafter died. In her deposition PW-5 has more or less to a very great extent supported the case as stated in her fardbeyan particularly regarding the assaults made by Mohan Ravidas and Madan Ravidas slapping her brother initially and then Kisto Ravidas exerted pressure with lathi on the chest of her brother Gujra Ravidas. In her deposition PW-5 has more or less to a very great extent supported the case as stated in her fardbeyan particularly regarding the assaults made by Mohan Ravidas and Madan Ravidas slapping her brother initially and then Kisto Ravidas exerted pressure with lathi on the chest of her brother Gujra Ravidas. PW-3 Kotal Ravidas had also gone to the place of occurrence after hearing the hue and cry of Gujra Ravidas. He had seen the accused persons, all three of them beating Gujra Ravidas and thereafter Kisto Ravidas exerted pressure with lathi on the chest of Gujra Ravidas. In the evidence of PW-4 Shamchandara Ravidas who is a minor son of the deceased and about 8 years at the time of his giving evidence has also deposed that all the three appellants had come to his house and Mohan and Madan started slapping his father and then Kisto Ravidas exerted pressure with lathi on the chest of his father as a result his father died. Though in his cross-examination this child witness or PW-4 said that he learnt about the occurrence from his aunt (fua) i.e. from the informant Tuni Ravidas PW-5. But in suggestion of defence he denied that he didn’t see the occurrence and he gave the evidence as per tutoring given to him. Hence, his denial of suggestion of defence means that he saw the occurrence. In his deposition also he has said that at the time of occurrence he was at this home. 14. Looking at the evidence of witnesses PW-3,Pw-4 and PW-5 it is clear that they have supported the prosecution case regarding the assault and abuses made by all the appellants. All the above three prosecution witnesses unequivocally deposed that appellants firstly slapped the deceased and on the exhortation of Madan Ravidas and Mohan Ravidas, Kisto Ravidas exerted pressure with lathi on the chest of Gujra Ravidas as a result Gujra Ravidas died. 15. The allegations is essentially of abusing, slapping and exerting pressure on the chest of the deceased by one of them. So taken together it seems that there is no dangerous weapon that the appellants were wielding neither they had any intention to kill nor they made repeated attacks on the deceased Gujra Ravidas. 15. The allegations is essentially of abusing, slapping and exerting pressure on the chest of the deceased by one of them. So taken together it seems that there is no dangerous weapon that the appellants were wielding neither they had any intention to kill nor they made repeated attacks on the deceased Gujra Ravidas. However, deceased died on the spot itself and prosecution has been able to explain the causes of death on the basis of evidences of PW-5, PW-4 and PW-3 who are eye witnesses to the occurrence. It can be argued on the other hand also that if the assault was not made then his death would not have occurred. 16. Therefore, basing myself on the evidences of PW-5, PW-4 and PW-3 and in the facts and circumstances this court is of view that the judgment of conviction imposed by the learned trial court below needs to be upheld and requires no interference. 17. Accordingly, the conviction of Mohan Ravidas and Kisto Ravidas stands confirmed and their conviction u/s 304 Part II/34 IPC is sustained and therefore the judgment of conviction dated 8.4.2003 passed by the 1st Additional Session Judge, Pakur in S.C. No. 260 of 1997 is upheld. 18. Learned counsel for the appellants had otherwise also pleaded mitigating circumstances regarding oldness of case and also the oldness of the appellants themselves and also that one of the appellants namely Madan Ravidas had already died, so they had already been sufficiently punished by the rigours and vigours of the trial. 19. Lastly regarding sentencing , I find that judgment of this case was delivered by the learned trial court on 8.4.2003 and on the day of delivery of judgment appellant no. 2 Mohan Ravidas was 54 years old and appellant no.3 Kisto Ravidas was 45 years old. After more than 15 years of passing of judgment by the learned court below Mohan Ravidas and Kisto Ravidas must have been about 70 years and 60 years of age respectively now. Hence, considering the aforesaid mitigating circumstances their sentence dated 9.4.2003 wherein appellants Mohan Ravidas and Kisto Ravidas have been imposed a sentence of 7 years R.I. is reduced to two years S.I. and the period already undergone by them shall be subtracted from the modified sentences of two years. Hence, considering the aforesaid mitigating circumstances their sentence dated 9.4.2003 wherein appellants Mohan Ravidas and Kisto Ravidas have been imposed a sentence of 7 years R.I. is reduced to two years S.I. and the period already undergone by them shall be subtracted from the modified sentences of two years. Appellants bail bonds are cancelled and the concerned or successor court is directed to take steps as per law to procure their arrest to serve out the modified and remaining sentence. 20. Accordingly, the Criminal Appeal is dismissed with upholding of conviction while sentence is modified as aforesaid.