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2021 DIGILAW 1003 (JHR)

Samrat Gope v. State of Jharkhand

2021-12-07

NAVNEET KUMAR

body2021
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 16.12.2003 passed by the Learned Sessions Judge, Seraikella-Kharsawan, in S.T. No.17 of 2003, whereby the accused appellant has been convicted for the offence punishable under Section 323 of the Indian penal code and sentenced to undergo R.I. for one year, though charge was framed under Section 304 of IPC. 2. The allegations against the appellant arose in the wake of the statement dated 12.08.2002 of the informant Anjana Bagti (PW-1) who stated that last Wednesday at night (07.08.2002) that the Dulal Bagti (husband of the informant) came in the house in a drunken condition and slept. She further stated that he remained slept and lying on his bed for 3-4 days like a sick person. He was complaining of pain in chest and ribs. On 11.08.2002, he disclosed that in course of taking alcoholic liquor, the accused Samrat Gope had assaulted him with fists and as a result of which, he was feeling pain. He was taken to Dr. Kavi for treatment by them, who advised him to admit him in a government hospital, to which, he did not became ready and came back to his house and slept away and died at about 6 am in the morning on 12.08.2002. The informant has clearly mentioned in her FIR (Ext-2) that she was not in a position to say as to why the accused had assaulted her husband. 3. On the basis of the aforesaid statement of the informant, the FIR was lodged and a case was registered in Seraikella P.S. against the accused and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance of the offence was taken and the case was committed to the Court of Sessions. The accused has pleaded not guilty to the charge explained to him for the offence punishable under section 304 of IPC to which he denied the allegations levelled against him and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mr. R.C.P. Sah, the learned defence counsel appearing on behalf of the sole appellant and Mr. Saket Kumar, APP appearing on behalf of the State. 5. 4. Heard Mr. R.C.P. Sah, the learned defence counsel appearing on behalf of the sole appellant and Mr. Saket Kumar, APP appearing on behalf of the State. 5. Finding fault in the impugned judgment of conviction and order of sentence, it is contended by the learned defence counsel appearing on behalf of the sole appellant that the judgment of conviction and order of sentence passed by the learned court below is contrary to the facts and circumstances of the case and also contrary to the settled principle of law and the learned court below has failed to appreciate the vital contradictions in the depositions of prosecution witnesses and the trial court should have given the benefit of doubt to the appellant due to lack of evidence and contradictions and as such, the impugned judgment passed by the learned court below is fit to be set-aside. 6. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly convicted the appellant for the offence punishable under section 323 of the Indian Penal Code and awarded the sentence accordingly and there is no merit in the appeal and it is fit to be dismissed. 7. Having heard the parties, perused the records of the case including the Lower Court Records. 8. The charges levelled against the sole accused appellant Samarat Gope is that the wife (informant) of the deceased Dulal Bagti, recorded her statement in the police station, where she alleged that Dulal Bagti (deceased husband) had returned to the house after taking intoxicating liquor and slept on 7.08.2002 and remained in a sleeping state for three to four days and thereafter on 11.08.2002, her husband disclosed that in course of taking liquor, the accused Appellant Samrat Gope had assaulted him with fists, upon which he was feeling pain. Thereafter, the deceased Dulal Bagti was taken to the hospital for treatment, where the doctor had advised him to get himself admitted in government hospital, but he did not ready to go to the hospital and thereafter he died on 12.08.2002 and subsequently the case was instituted by the wife of the deceased namely Anjana Bagti (PW-1) In order to substantiate the case of the prosecution. 9. 9. In support of the prosecution case, altogether nine witnesses have been examined, out of them PW -3 Kishan Kamila, PW – 5 Chandi Prasad Pani and PW – 6 Sukhram Mukhi have been declared hostile and from perusal of their depositions it is evident that the prosecution in the cross-examination could not elicited any significant material to support the charges levelled against the accused. 10. PW – 4 Ghasiram Bagti is a formal witness, who has proved the inquest report, which has been marked as Ext-1 and 1/1. This witness pointedly stated that the wife of Dulal had categorically told this witness that the appellant had assaulted her deceased husband Dulal in ribs where this witness had seen the injuries. In the cross-examination the prosecution did not take out any material to defend himself. 11. PW – 1 Anjana Bagti had stated in her deposition that her husband was drunkard and addicted to alcoholic liquor and he used to take intoxicating liquor daily. On the date of occurrence, i.e. on 07.08.2002, he had gone to take drink at 10 O’ clock in the night and he came back about 3 O’ clock next day in the morning and thereafter he slept. She further stated that he had told that he was not feeling well and there was pain, then he was taken to doctor, who advised him to get him admitted in the hospital, to which, he was not ready and came back to his home from the Doctor and then on 11.08.2002, he had disclosed that the accused-appellant had beaten him with fists, but he did not go to the police station to institute the case. This witness, who is the wife of the deceased, categorically stated that it was told by her deceased husband that he was assaulted by the accused-appellant. 12. PW – 2 Bilanka Bagti stated that the deceased was the son of his brother, who supported the version of PW -1 with slight inconsistency in the mode of assault, where she had stated that the accused had assaulted him by badminton racket. This witness PW – 2 had stated candidly that the deceased Dulal Bagti was a habitual drunkard and on the date of occurrence, he had taken the liquor. This witness PW – 2 had stated candidly that the deceased Dulal Bagti was a habitual drunkard and on the date of occurrence, he had taken the liquor. She further told that after taking liquor on 7.08.2002, he had come to the house and remained lie on the bed for four days and during that period, he was doing of his daily rituals as usual including taking bath, meal and he used to sleep most of the time after taking meal in between. 13. PW – 7 Ganesh Bagti was the son of the deceased Dulal Bagti. He categorically stated in examination in chief that the accused had beaten him with fists when his father had gone to take liquor. He stated that his father was sleeping since last four days before his death, but he was in conscious state and he had stated before his death that he was assaulted by the accused-appellant. This witness also stated that he used to take meal but he did not go for treatment. He was simply lying on the cot. He further stated that he did not enquire about his health. 14. PW – 8 Tarun Kumar was the I.O. of the case, who had recorded the statement (Fardbayan) of the informant, which has been marked as Ext. – 2 and the formal FIR have also been proved by this witness, which has been marked as Ext. -3. This witness has narrated the entire process, by which, the investigation was conducted and from perusal of the testimony, there is no major flaw to disbelieve the testimonies of P.W.1, P.W.2 & P.W.7 who have consistently and uniformly deposed that the deceased had disclosed that the accused-appellant had assaulted the deceased just before his death. The I.O. after completing the investigation submitted the charge-sheet. 15. In the light of the evaluation of the evidences in the aforesaid paragraphs it is established that the accused-appellant had assaulted the deceased by fists (Mucca) in the ribs when the deceased had gone to drink liquor as he was habitual drunkard. Thus the facts remained to take into consideration is that as to whether the deceased died of his assault or not. Accordingly this court proceeds to examine the testimonies of the Doctor who conducted the post-mortem of the deceased to ascertain the cause of death. 16. Thus the facts remained to take into consideration is that as to whether the deceased died of his assault or not. Accordingly this court proceeds to examine the testimonies of the Doctor who conducted the post-mortem of the deceased to ascertain the cause of death. 16. PW – 9 Pradeep Kumar Pati is the doctor in this case, who had conducted the post mortem of the deceased and observed as under:- “(i) Contusion on right chest wall extending up to anterior abdominal wall right side of waist and posteriors up to shoulder region. (ii) Ecihymotis patch on left chest wall (infraxillary and inframenary region) 10”X10” caused by hard and blunt substance. (iii) There was massive pleural effusion (possibly due to tuberculosis) with straw coloured fluid on left side with fibrosis of left lung.” He has proved the post mortem report, which is marked as Ext. – 5. From perusal of the report, it appears that the injury No.1 and 2 have been caused by hard and blunt substance and this is falling in line with consistent and coherent depositions of PW – 1 Anjana Bagti, the informant in this case, PW – 2 Bilank Bagti and PW -7 Ganesh Bhagti, son of the deceased. It is further found from the Post-mortem report Ext.5 that the death was caused due to Pulmonary Tuberculosis. This Doctor witness candidly deposed that the assault had accelerated the disease by which the deceased was suffering such as TB and he opined that the death was caused due to Pulmonary Tuberculosis. Thus the testimony of this witness has established that the deceased was assaulted and after going through the testimonies of P.W.1, P.W.2 and P.W.7, it was the accused-appellant who had assaulted the deceased by fists. 17. It is well founded that since the depositions of PW-1, PW-2 and PW – 7 above named is based on the disclosure statement of the deceased, which is just before his death, that deceased had been assaulted by the accused appellant by fists and therefore this court finds that the learned trial court has rightly appreciated the evidences and found their statements true and accordingly the accused appellant has been rightly held guilty for the offence punishable under Section 323 of the Indian penal code. This Court after appreciating the entire evidences in totality as discussed in the foregoing paragraphs does not find any illegality or deformities in the appreciation of the evidences by the learned trial court. It is also found from the testimonies of the Doctor P.W.9 and the post mortem report, (Ext.-5) that the cause of death is tuberculosis in a very explicit manner and therefore the appreciation of evidence, vis-a-vis testimony of PWs-1, 2 & 7 that he was beaten by fists, crystallise the fact to take into consideration that no doubt, he was a habitual drunkard and used to drink daily, but on the date of occurrence, i.e. on 7.08.2002, when he had gone to take liquor, he was assaulted by this appellant by which injuries were caused to him, but that surely was not the cause of the death rather the assault had just aggravated his several ailments already being suffered by the deceased, and therefore, the learned trial court has rightly held the guilt of the accused-appellant for the offence punishable under Section 323 of the Indian penal code. Accordingly, this Court upholds the conviction of the appellant for the offence punishable under Section 323 of the Indian penal code. 18. Further, on the point of sentence, it has been pointed out by the learned defence counsel that this accused appellant is of about 40 years old and he had been suffering with the trauma and hardships of criminal proceeding since 2002 and therefore no useful purpose would be served to send him to jail again. It is also stated that at the time of occurrence, this accused-appellant had been selling liquor and he had already remained in jail for about one month in this case and therefore he is a poor man also and there is nothing on record to show about his criminal history. 19. In this view of the matter, a lenient view is taken and instead of sentencing him for a term of imprisonment, the sole accused-appellant is sentenced to the period already undergone and further he is sentenced to fine by way of compensation to be paid to the informant (wife of the deceased) by imposing upon the accused appellant a fine of Rs.3000/- (Rupees three thousand only) by way of compensation to be paid to the informant Anjana Bagti. In case of default of the payment of fine by way of compensation to be paid to the informant, the appellant shall suffer imprisonment for one year. Since the accused appellant is on bail, he is given three months time from today to pay fine of Rs.3000/- (Rupees three thousand only) as compensation to be paid to the informant (wife of deceased) Anjana Bagti. Learned trial court concerned shall ensure that the accused-appellant pays the amount, as imposed by this Court and after payment of the same, the Court will ensure that the said amount of Rs.3000/-(Rupees three thousand only) is disbursed to the informant Anjana Bagti as compensation and in case if the said informant is traceless or not found or found dead, the said amount of Rs.3000/- (Rupees three thousand only) shall be paid to her close kith and kin. Learned trial court is further directed to ensure that in case, the amount of fine is not paid, he shall serve the sentence of one year by taking all necessary steps as per the provisions of law to secure his attendance. 20. Accordingly, this appeal is dismissed with modification in order of sentence as above. 21. Let the Lower Court Record be sent back forthwith to the concerned court below for its compliance.