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2019 DIGILAW 915 (JHR)

Sibran Chik v. State of Jharkhand

2019-04-24

H.C.MISHRA, S.K.DWIVEDI

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JUDGMENT : Heard learned amicus curiae for the appellant and the learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgement of conviction and Order of sentence dated 28.02.2012, passed by the learned Sessions Judge, Simdega, in S.T. No. 79 of 2002, 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 rigorous imprisonment for life and fine of Rs.5,000/-, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Bhuneshwar Chik, the brother of the deceased Jatru Chik, given on 9.5.2002 at 8:15 hours, at village Kurudeg, P.S. Kurudeg, District Simdega, wherein he has stated that his deceased brother was working as a choukidar, and on 8.5.2002, both of them had gone to the place of their relative Ramdayal Chik, on the occasion of the marriage of his son. There was a feast at about 8:00 P.M. in the night, and all of them were taking their meal. The accused persons Gulan Chik and Sibran Chik started assaulting his brother Jatru Chik by fists and kicks. The people present there tried to save him, but both the accused persons badly assaulted his brother by fists and kicks, due to which he became unconscious. Thereafter informant was bringing his brother to Simdega for treatment, but he died in the way. Claiming, that his brother had died due to the assaults made by both the accused, the fardbeyan was given by the informant, on the basis of which, Kurudeg P.S. Case No. 12 of 2002, corresponding to G.R. No. 85 of 2002, was instituted against both the accused persons, for the offence under Sections 302/34 of the Indian Penal Code, and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under Section 302 of the Indian Penal Code. It appears that the accused Gulan Chik @ Ramesh Chik had faced the trial till the last witness was examined in the case, but thereafter he absconded and the case of the present appellant was separated. It appears that the accused Gulan Chik @ Ramesh Chik had faced the trial till the last witness was examined in the case, but thereafter he absconded and the case of the present appellant was separated. In course of trial, 12 witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. has not been examined in the case, and one material witness P.W.-8 Bharat Chik has turned hostile, and has not supported the prosecution case at all. 5. P.W.-7 Bhuneshwar Singh is the informant in the case and the brother of the deceased. He has supported the prosecution case stating that the occurrence had taken place on 8.5.2002, when they had gone to the house of Ramdayal Chik on the occasion of the marriage of his son. The marriage ceremony concluded in the day and in the night at about 8:00 P.M., there was a feast. He has stated that in course of feast both the accused persons Gulan Chik and Sibran Chik started assaulting his brother Jatru Chik by fists and kicks, due to which he became unconscious. He brought his brother to Kurudeg Hospital, from where he was referred to higher hospital. While he was bringing his brother to Simdega, his brother died in the way, and thereafter they returned back. This witness has admitted in his cross-examination that there was no enmity between the deceased and the accused from before. He has stated that he had given the fardbeyan to the police on the very next day, on which he has proved his signature and the signature of one witness, which were marked as Exhibits 1 and 1/2 respectively. He has identified the accused persons present in the Court. 6. P.W.-1 Dukhni Devi, P.W.-2 Shivkumar Chik Baraik, P.W.-3 Ram Dayal Chik, P.W.-4 Ajit Chik, P.W.-5 Sudho Chik, P.W.-6 Hiramani Devi, P.W.-10 Ranjeet Chik, P.W.-11 Shambhu Negi and P.W.-12 Kamal Chik, all are the eye witnesses to the occurrence and they were present in the feast. P.W.-2 Shivkumar Chik Baraik is also a witness to the inquest report and he has identified his signature on the inquest report, which was marked Exhibit-1. P.W.-3 Ram Dayal Chik was the host and P.W.-4 Ajit Chik is his son, whose marriage was held on that day. P.W.-2 Shivkumar Chik Baraik is also a witness to the inquest report and he has identified his signature on the inquest report, which was marked Exhibit-1. P.W.-3 Ram Dayal Chik was the host and P.W.-4 Ajit Chik is his son, whose marriage was held on that day. All these witnesses have stated that during the feast there was quarrel, in which both the accused persons had assaulted the deceased by fists and kicks, due to which he became unconscious, and while being taken to hospital he died in the way. All these witnesses, except P.W.-5 Sudho Chik, P.W.-10 Ranjeet Chik, P.W.-11 Shambhu Negi and P.W.-12 Kamal Chik, have stated that the present appellant had scaled over the chest of the deceased pressing his chest by boot, but their attention was drawn towards this statement given before the police and they have claimed to have given such statement before the police also. Since the I.O., has not been examined in the case, in the interest of justice, we have looked into the case diary, and we find that none of these witnesses had stated before the police that this accused had scaled over the chest of the deceased, pressing the chest by boot. Be that as it may, the fact remains that all the witnesses had stated before the police also, that the deceased was assaulted by kicks by both the accused persons. All these witnesses have identified the accused in the Court. 7. P.W.-9 Dr. K.D. Choudhary had conducted the post-mortem examination on the dead body of the deceased on 9.5.2002, and had found the following injuries on the dead body:- External injuries: (i) Lacerated injury 1”x ½ “x scalp deep over the left parietal region of head, (ii) Abrasion 1 ½ “ x 1” over the left elbow on the exterior surface, (iii) Small abrasion present in all fingers of both legs, (iv)Three intercostal ribs (8,9 and 10th) were fractured, but there was no injury over the skin corresponding to those ribs. Internal Examination: Brain and meninges were pale, larynx, trachea and lungs-Pale. Heart was contracted and the chambers were empty. Large vessels were collapsed. Spleen and kidney were pale. Urinary bladder was full of urine. The abdominal cavity was full of blood due to rupture of liver. The stomach containing undigested rice and plenty of alcohol. Internal Examination: Brain and meninges were pale, larynx, trachea and lungs-Pale. Heart was contracted and the chambers were empty. Large vessels were collapsed. Spleen and kidney were pale. Urinary bladder was full of urine. The abdominal cavity was full of blood due to rupture of liver. The stomach containing undigested rice and plenty of alcohol. This witness has stated that the injuries were ante-mortem in nature, and were caused by hard and blunt object. He has also stated that the death was caused due to the haemorrhage and shock and the abdominal bleeding due to the rapture of liver. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-2. 8. 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 materials on record, the appellant has been convicted and sentenced by the Trial Court below as aforesaid. 9. Learned amicus curiae for 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, from the evidence on record it is apparent that there was quarrel in a feast, when it is alleged that both the accused persons had assaulted the deceased by fists and kicks. It is submitted by learned amicus curiae that there is nothing in the evidence to show that the deceased was assaulted with the intention or knowledge to cause his death, and accordingly, the offence cannot be said to be made out under Section 302 of the Indian Penal Code. Learned amicus curiae pointed out that the evidence of P.W.-9 Dr. K.D. Choudhary, and the post-mortem report proved by him as Exhibit-2, would show that the deceased had died due to the rupture of liver, and since plenty of alcohol was also found in his stomach, it is apparent that the deceased might be suffering from some liver decease, due to which it got ruptured due to the assaults. The appellant cannot be attributed with the knowledge or intention of causing the death of the deceased, and in any event, the offence, if any, is made out only under Section 325 of the Indian Penal Code. The appellant cannot be attributed with the knowledge or intention of causing the death of the deceased, and in any event, the offence, if any, is made out only under Section 325 of the Indian Penal Code. It is submitted by learned counsel that the appellant has remained in custody for more than seven years, and has been sufficiently punished for the said offence. 10. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the evidence of the witnesses clearly show that the deceased had been assaulted mercilessly by both the accused persons by fists and kicks, which ultimately resulted in the death of the deceased, and accordingly, the offence is clearly made out under Section 302 of the Indian Penal Code. The ocular evidence of the witnesses is fully corroborated by the medical evidence of P.W.-9 Dr. K.D. Choudhary, and the post-mortem report proved by him as Exhibit-2. As such, there is no illegality in the impugned Judgement of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 11. Having heard learned counsels for both the sides and upon going through the materials on record, we find that the evidence of all the witnesses, including the informant, show that the deceased was being assaulted by fists and kicks by the two accused persons, including this appellant. Though some witnesses have stated that this appellant had scaled over the chest of the deceased when he fell down, and pressed him with boots, but the fact remains that the attention of these witnesses were drawn towards this statement made before the I.O., and that I.O. has not been examined in the case from whom the contradiction could be taken. As stated earlier, we have looked into the case diary, in which there is no such statement. As such this part of the evidence of the witnesses that the accused had scaled over the chest of the deceased, cannot be relied upon. The fact however, remains that there is evidence against this accused also, to have assaulted the deceased by kicks and the evidence on record shows that due to such assaults, apart from the other injuries on the dead body, three ribs of the deceased were fractured and the liver of the deceased was also ruptured, resulting in filling of the blood in the abdominal cavity. The fact also remains that the Doctor had found plenty of alcohol in the stomach of the deceased, and it cannot be ruled out that the deceased must be suffering from some alcoholic liver decease, due to which, the liver got ruptured easily. In such a situation the accused could not be saddled to have assaulted the deceased, either with the intention to cause his death or with the knowledge to cause his death, and in that view of the matter, the offence can be said to be made out only under Section 325 of the Indian Penal Code, and not under Section 302 of the Indian Penal Code. The record shows that the appellant was granted bail by order dated 20.6.2012, but the report received from the Court concerned, shows that the appellant is still in custody undergoing the sentence. It is submitted by learned amicus curiae that the appellant has remained in custody for more than seven years by now. 12. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 28.02.2012, passed by the learned Sessions Judge, Simdega, in S.T. No. 79 of 2002, convicting and sentencing the appellant, Sibran Chik, for the offence under Sections 302 of the Indian Penal Code, cannot be sustained in the eyes of law. As such, the Judgment of conviction and Order of sentence of the appellant, are hereby, modified to the effect that the appellant, Sibran Chik, is hereby, convicted for the offence under Section 325 of the Indian Penal Code, and sentenced to Rigorous Imprisonment for six years with fine of Rs.5,000/- for the said offence. In default of payment of fine, he shall have to undergo simple imprisonment for six months. 13. It is accordingly, directed that if the appellant Sibran Chik, who is in custody, has completed his sentence, as aforesaid, he shall be released and set at liberty forthwith, if his detention is not required in any other case. 14. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae, Sri Yogesh Modi. We accordingly, direct the Secretary, Jharkhand High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgement be sent to the Secretary, Jharkhand High Court Legal Services Committee, Ranchi, for the needful. 15. We accordingly, direct the Secretary, Jharkhand High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgement be sent to the Secretary, Jharkhand High Court Legal Services Committee, Ranchi, for the needful. 15. This appeal is accordingly, dismissed, with the modification in the 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.