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2022 DIGILAW 298 (JHR)

Victor Kujur v. State of Jharkhand

2022-03-14

NAVNEET KUMAR

body2022
JUDGMENT : NAVNEET KUMAR, J. 1. This appeal has been preferred against the judgment of conviction dated 09.04.2003 and order of sentence dated 10.04.2003 passed by the learned Additional District & Sessions Judge (F.T.C.), Latehar in Sessions Trial No. 73 of 2002, whereby and where under all the aforesaid appellants have been convicted for the offence punishable under section 304 Part II r/w section 34 of IPC and accordingly both the appellants were sentenced to undergo R.I. for a period of 5 years. 2. It appears form the record that during the pending of the appeal the appellant no. 1 Victor Kujur had expired as evident from the affidavit filed on behalf of the State. Form the perusal of the said affidavit, it appears that the appellant no. 1 Victor Kujur son of Bhauka Kujur had died about 12 years ago and the appellant no. 2 Santosh Kujur was served with a notice for his appearance. The death of the deceased appellant has been certified by the Mukhiya of Hampa Gram Panchayat along with the report of the Officer Incharge of the Mahuwadand Police Station in the district of Latehar. 3. The learned counsel appearing for the appellants submitted that no close or near relative of the deceased appellant no. 1 Victor Kujur, wanted to continue with this appeal and, therefore, it is urged on his behalf to abate this appeal with respect to the deceased appellant Victor Kujur. Accordingly, this appeal gets abated with respect to the deceased appellant no. 1 Victor Kujur and his name is directed to be deleted from the cause tittle of memo of appeal. Now, the sole appellant no. 2 Santosh Kujur is before this Court. 4. The prosecution case arose in the wake of fardbeyan of one Peter Kujur son of late Francis Kujur of village Kurund P.S. Mahuwadand before the Officer-in-Charge, Mahuwadand Police Station on 03.03.2002 at about 10.30 a.m. at the house of John Dikrush Kujur in Kurund village. Briefly stating the allegations by the informant peter Kujur are as under:- The informant Peter Kujur (PW 5) stated that on 01.03.2002 in the evening at about 5.00 p.m. cattle of Victor Kujur being untied started grazing the crop of John Dikrush Kujur. Briefly stating the allegations by the informant peter Kujur are as under:- The informant Peter Kujur (PW 5) stated that on 01.03.2002 in the evening at about 5.00 p.m. cattle of Victor Kujur being untied started grazing the crop of John Dikrush Kujur. Thereupon, the said Dikrush Kujur went to the house of Victor Kujur and complained about the same and asked him to keep his cattle tied as it had been grazing crops from his agricultural field. Thereupon, an altercation took place between both of them and the villagers intervened and subsided the matter. After that the brother of informant, namely, John Dikrush Kujur started driving out the cattle grazing in his farm, in the meantime, the deceased appellant Victor Kujur and Santosh Kujur holding lathis in their hands reached there and assaulted John Dikrush Kujur indiscriminately on his head and entire body, by which the said John Dikrush Kujur fell there and became senseless. Thereafter, the informant along with the co-villagers brought him to his house and treated him with local/country-side medicines but on 02.03.2002 at about 5-6 p.m. in the evening his brother John Dikrush Kujur died. On the basis of the aforesaid fardbeyan of informant Peter Kujur a formal FIR was drawn vide Mahuwadand P.S. Case No. 5/2002 lodged u/s 302/34 of IPC against the appellants and the investigation of the case commenced. 5. After completion of the investigation the charge sheet was submitted, cognizance was taken and the case was committed to the court of Sessions for the trial of the offence punishable u/s 302/34 of IPC against the appellants. Further, it appears that on 09.08.2002 the charge was framed against the deceased Victor Kujur and Santosh Kujur u/s 302/34 of IPC where they pleaded not guilty and claimed to be tried. The learned trial court after concluding the trial convicted the appellants for the offence punishable u/s 304 part II read with section 34 of IPC by the impugned judgment of conviction and order of sentence. 6. Heard Mr. Rakesh Pathak, learned counsel for the appellants and Mrs. Priya Shrestha, learned A.P.P. for the State. Arguments on behalf of the appellants:- 7. 6. Heard Mr. Rakesh Pathak, learned counsel for the appellants and Mrs. Priya Shrestha, learned A.P.P. for the State. Arguments on behalf of the appellants:- 7. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellant submitted that the impugned judgment of conviction and order of sentence is bad in law and in fact the learned trial court has erred in convicting the appellant on the basis of the witnesses who are admittedly not the eye witnesses to the prosecution case and as such the story is concocted one. For that the learned trial court while arriving at the conclusion against the appellant has failed to consider that the I.O. in his statement has deposed that he did not find any mark of blood on the earth where Dikrush Kujur had fallen which goes to show that the exact place of occurrence has not been established by the prosecution case and it has also been contended that if the injuries are taken to be true then blood should have been found on the place, it means that the prosecution has shifted the place of occurrence to create a totally false case against the appellant. It has also been submitted that the learned trial court has not considered the statement of the witnesses P.W.1 who deposed that when he was working in his farm the villagers informed that Dikursh Kujur was lying in the farm and then he returned to village and went to the farm and brought Dikrush his home is indicating that he was not the eye witness. It has also been ignored by the learned trial court that P.W. 1 has stated that on getting the information he along with PW. 2, P.W. 3, P.W. 4 and P.W. 5 went to the farm and brought Dikrush to his home where he was lying on the ground which goes to show that none of the witnesses were present at the place of occurrence when the occurrence took place and where the occurrence is alleged to have taken place. In absence of any eye witness, the learned trial court has erred in convicting the appellants. In absence of any eye witness, the learned trial court has erred in convicting the appellants. It has also been stated that the learned trial court has committed error in holding that the prosecution has been able to prove the case against the appellants beyond reasonable doubt without any cogent evidence that they have caused the death of Dikrush Kujur and thus the impugned judgment of conviction and order of sentence are based on the conjectures and surmises and, therefore, fit to be set aside. Arguments on behalf of the State:- 8. On the other hand, the learned A.P.P. has vehemently objected the contentions raised on behalf of the learned counsel for the appellants and submitted that the learned trial court has rightly appreciated the entire evidences available on record where all the witnesses have consistently and uniformly supported the case of the prosecution and it is wrong to say that the informant P.W. 5 Peter Kujur is not the eye witness of the case. P.W. 4 Hemant Kujur is also the eye witness and he categorically deposed that the appellants had assaulted the deceased by which he died on the next day during the course of the treatment at home and all these facts are supported and corroborated by the other witnesses including P.W.1, P.W.2, P.W.3, the doctor P.W. 6 and P.W. 8 – I.O. of this case. Therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence. APPRAISALS & FINDINGS 9. Having heard the learned counsels for the parties, perused the entire materials of the case including the Lower court records. 10. In view of the aforesaid discussions, it is found that it is an admitted case of the prosecution that on the date of occurrence i.e. 01.03.2002 the cattle of the accused-appellant no. 1 Victor Kujur, was grazing the peas crops of the deceased John Dikrush Kujur and then he complained to him (accused appellant), upon which the accused appellant Victor Kujur (since deceased) and his son Santosh Kujur (now the sole appellant after deleting the name of the deceased appellant Victor Kujur) got angry and started beating the deceased Dikrush Kujur indiscriminately with lathi by which he fell down and became senseless and thereafter, the deceased was brought to the home where he was treated with homemade local medicines, but, on the next day he died. It is found in order to substantiate the charges leveled against the appellant altogether 8 witnesses were examined on behalf of the prosecution. 11. P.W. 1-Mariyanus Tirkey is the inquest report witness and he had proved his signature in the said inquest report which has been marked as Ext. 1. He has supported the case of prosecution that he came to know from the villagers that John Dikrush Kujur was assaulted by the appellants due to dispute over grazing of peas-field of the deceased John Dikrush Kujur by the cattle of appellants and the deceased was lying in the field in a senseless condition and then he had visited the place of occurrence along with co-villagers and brought the deceased at home and domestic medicines were administered to him. 12. P.W. 2 Sanichar Baraik, who also supported the case of the prosecution, is a hearsay witness and stated that the deceased had driven the ox of the appellant which was grazing the peas crop of the victim and again the second time when the ox of the appellant was grazing the crops, the deceased Dikrush Kujur started driving out the cattle from his farm, thereupon, the appellant including the deceased appellant went with lathi and indiscriminately assaulted him by which he became senseless, thereafter, the deceased was brought to home and domestic treatment was given to him, but, on the next day he died. 13. P.W. 3 Ranjeet Kujur is also a hearsay witness and he heard from P.W. 4 Hemant Kujur and P.W.5 Peter Kujur about the incident that his father was killed by the accused-appellants and he had proved the signature over the inquest report being the witness of inquest report which has been marked as ext. 1/1. 14. P.W. 4 Hemant Kujur is the important witness he deposed that his father had planted Peas crop and he had seen that his father was driving out the ox who was grazing the said crops and the said ox was belonging to the appellants, upon which they became furious and had beaten his father with lathi by which his father Dikrush Kujur expired. He also stated that his father became senseless after getting lathi injuries inflicted by the appellants and then the deceased was taken to house where he was administered domestic medicines, but, on the next day he expired. 15. He also stated that his father became senseless after getting lathi injuries inflicted by the appellants and then the deceased was taken to house where he was administered domestic medicines, but, on the next day he expired. 15. P.W. 5 Peter Kujur, is the informant of this case and he is said to be the eye witness of the occurrence and he has fully supported the case of the prosecution and stated that an altercation took place between the deceased Dikursh Kujur and the appellants over the grazing of the ox belonging to the appellants in the field of the Peas crop of the deceased Dikrush Kujur. Thereupon, the accused appellant had assaulted incessantly to the deceased by which he expired on the next day in the evening. This witness proved his signature on the fardbeyan which has been marked as Ext. 1/2 and also the signature of the another witness Sanichar Baraik on the fardbeyan which has been marked as Ext. 1/3 and signature of Mariyanus Tirkey is exhibited at Ext. 1/4. It has been admitted by this witness that for treatment the deceased was not taken to hospital rather he had been brought to home and local domestic treatment was done. 16. Further, the doctor has been examined as P.W. 6 Dr. Dileep Kumar, who had conducted the post mortem as (Ext. 2) of the dead body of the deceased John Dikrush Kujur and found the following antemortem injuries : i) Swelling on chick left side. ii) Abrasion behind right elbow joint. iii) Multiple bruises over left flank of abdomen. iv) On dissection spleen was found ruptured, peritoneal cavity was full of blood. v) Cause of death was shock and hemorrhage due to the above injuries caused by hard and blunt substance. The doctor P.W. 6 reported that these injuries might be caused by lathi and categorically stated that the injuries may not be caused on fall on hard and blunt substance because there were multiple bruises, spleen was ruptured causing internal injuries. He has proved the post mortem report and the signature which has been marked as Ext. 2 and thus, the injuries found on the body of the deceased falling in line with the version of the witnesses examined on behalf of the prosecution that the accused appellants had assaulted the deceased indiscriminately by lathi. He has proved the post mortem report and the signature which has been marked as Ext. 2 and thus, the injuries found on the body of the deceased falling in line with the version of the witnesses examined on behalf of the prosecution that the accused appellants had assaulted the deceased indiscriminately by lathi. Thus, the earlier testimonies of the witnesses examined on behalf of the prosecution had supported and corroborated by the medical evidences and it is well founded that the cause of death was shock and hemorrhage due to injury caused by the hard and blunt substance and since all the testimonies examined on behalf of the prosecution consistently and uniformly stated that the assault of lathi by the appellants upon the deceased and, therefore, it is well founded that the deceased died due to assault of the lathi which was caused by appellants as deposed coherently by all the witnesses examined on behalf of the prosecution as discussed above. 17. P.W. 7 Phulmani Kujur, who is the wife of the deceased, has deposed that on the date of occurrence when the ox of the appellants grazing in the field then her husband intervened and drove the cattle out from the field upon which the accused appellants came and started beating her husband with lathi by which her husband fell down and he was brought to home and thereafter on the next day he died. 18. Further, P.W. 8 Dinesh Prasad Shukla is the I.O. of this case and he has been examined elaborately and supported the case of the prosecution about the date, time, place, manner and mode of the occurrence. He had also proved his signature over the inquest report which has been marked as Ext. 1/5 and over the fardbeyan which has been marked as Ext. 1/6, he also deposed that the witnesses had been examined during the course of the investigation. 19. On the other hand, it appears that D.W. 1, who has been examined on behalf of the defense did not support the defence at all and his examination on behalf of the prosecution is quite irrelevant. 20. 1/6, he also deposed that the witnesses had been examined during the course of the investigation. 19. On the other hand, it appears that D.W. 1, who has been examined on behalf of the defense did not support the defence at all and his examination on behalf of the prosecution is quite irrelevant. 20. In view of the aforesaid evaluation of the testimonies of the witnesses, it is well founded that the learned trial court did not commit any error in the appreciation of the evidences and has rightly appreciated the entire evidence in a holistic and comprehensive manner by which the appellants were found guilty for the offence punishable u/s 304 Part II read with section 34 of IPC. There is no illegality and irregularity committed by the trial court in the judgment of conviction by which the appellants were found guilty for the offence punishable u/s 304 Part II r/w section 34 of IPC. 21. In the result, this Court upholds the judgment of conviction of the appellant Santosh Kujur for the offence punishable u/s 304 Part II r/w section 34 of IPC after finding the appellant Santosh Kujur guilty for the offence punishable u/s 304 Part II r/w section 34 of IPC. 22. So far as the sentence is concerned, it has been pointed out that one of the two appellants namely Victor Kujur had expired during the pending of this appeal and the name of the said deceased appellant has been deleted. 23. Further, it is found that the surviving appellant Santosh Kujur was aged about 23 years at the time of the recording the statement u/s 313 of Cr.P.C. and thus, he is now about 45 years old. Further, it is found from the record that the appellant Santoh Kujur has already remained in jail from 03.03.2002 to 22.04.2004 and, thus, the appellant has already remained in jail for about more than two years and there is nothing on record to show his criminal history. Further, this appellant has been suffering from the trauma and misery of the criminal proceeding for a long period of time since 2002. 24. Further, this appellant has been suffering from the trauma and misery of the criminal proceeding for a long period of time since 2002. 24. Having taken into consideration all the mitigating factors, this Court does not find just and proper to send the appellant Santoh Kujur again in jail and taking a lenient view this appellant is awarded the sentence of imprisonment for a term of period already undergone by him by setting aside the order of sentence to undergo five years of RI as awarded by the learned court below for the offence punishable u/s 304 Part II r/w section 34 of IPC. Accordingly, since the appellant is on bail he is discharged from the liabilities of the bail bond. 25. This appeal is dismissed as above. 26. Let the LCR be sent back to the concerned court below with a copy of this judgment.