Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 909 (JHR)

Sukul Oraon v. State of Jharkhand

2023-07-20

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 22.06.2004/23.06.2004, respectively passed by the learned Additional District and Sessions Judge, Fast Track Court No. 1, Gumla, in Sessions Trial No. 214 of 1998; whereby the appellant has been convicted and sentenced to undergo R.I. for 7 years for offence under section 304 Part 11/34 IPC, R.I. 5 years for offence under section 307/34 IPC and 2 years R.I. for offence under section 324/34 IPC with a fine of Rs.5000/- each, in default of which to undergo R.I. for 6 months. Further all the sentences were directed to run concurrently. 3. At the outset, it is stated that original appellant No. 2, namely, Budhdeo Oraon had died and the instant appeal was dismissed as abated vide order of this court dated 09.02.2022. 4. The prosecution case in short is that on 30.04.1998 the informant's son was cutting wood adjacent to her house, when accused persons armed with lathi and tangi came there and started assaulting him. On alarm, the informant and her husband came to save her son, but they were also assaulted. Her son and husband sustained injury on their head and she sustained injury on her wrist. The reason of assault was due to land dispute. 5. Learned Amicus appearing for the appellant submits that this is a peculiar case where there is admitted rivalry between the two parties and admittedly there was a fight between both the parties on the ground of fencing of land. However, the learned trial court without going into intricacy of the evidences laid before him convicted the appellants for the offence punishable under Section 304 Part 11/307/324 read with 34 IPC and sentenced them accordingly, but the fact remains that the place of occurrence was fully crowded due to fight, but for the reason best known to the prosecution no independent witness has been examined in this case. Interestingly, PW4 had deposed that the Sarpanch, namely, Charwa and Gandur were present at the time of occurrence, but they have not been examined. Since, it was an admitted case of rivalry; thus, non-examination of independent witness as well as of the investigating officer highly prejudice the case of the appellant. Interestingly, PW4 had deposed that the Sarpanch, namely, Charwa and Gandur were present at the time of occurrence, but they have not been examined. Since, it was an admitted case of rivalry; thus, non-examination of independent witness as well as of the investigating officer highly prejudice the case of the appellant. He further submits that by going through the deposition of the doctor, it clearly transpires that cause of death was injury No. 2 i.e., embolism of right ventricle but as per the doctor the said injury was simple in nature. The doctor did not find any injury on vital part of the body of the deceased. The learned trial court has completely ignored all these aspects and convicted the appellants on mere surmises and conjecture, as such the impugned order deserves to be quashed and set aside. He lastly submits that by setting aside the conviction under 304 Part 11/307/324, the sentence for other charges may be modified for the period already undergone. 6. Mr. Prabir Chatterjee, learned Spl. P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the appellant. 7. Having heard learned counsel for the parties and after going through the prosecution case, it appears that the allegation against the appellants were that on the date of occurrence which was a late afternoon i.e., 3 P.M. the appellants came with lathi and tangi and started assaulting the informant and her family members when son of the informant, Ram Oraon was cutting wood adjacent to his house. From the deposition of PW4 it is evident that there was previous dispute between the informant party and the accused and as a matter-of-fact PW4 was also in custody for murder of one of the accused, namely, Lordho. This deposition of PW4 does not leave any scope of confusion that there was enmity between the two sides. 8. Now coming on the contention of learned counsel for the appellant that no independent eye witness has been examined; it is evident from the deposition of PW4 that many persons were present at the place of occurrence including Sarpanch (Charwa and Gandur), but both of them have not been examined. 8. Now coming on the contention of learned counsel for the appellant that no independent eye witness has been examined; it is evident from the deposition of PW4 that many persons were present at the place of occurrence including Sarpanch (Charwa and Gandur), but both of them have not been examined. As a matter of fact, none of the independent witness has been examined in this case. Moreover, PW6, 7 and 9 have also turned hostile. Since, it was early evening as the time of occurrence was 3 P.M. in the month of April, there has to be neighbors at the place of occurrence and which has also been corroborated by the evidence of PW4. Thus, non-examination of any of the independent witnesses really prejudiced the case of the prosecution, inasmuch as, Section 114(g) clearly indicates that evidence which could be and is not produced would if produced, be unfavorable to the person who withheld it. In the instant case, since the independent witness has not been examined and if they would have been examined the correct picture would have come on the surface. Thus, this is a vital lacuna on the part of the prosecution especially for convicting them under section 307/304 Part II IPC. 9. It further transpires that the doctor who conducted the postmortem of the deceased has mentioned two injuries wherein injury No. 1 was fracture and was termed as grievous injury, whereas Injury No. 2 that was bruise over calf of left leg which was termed as per the doctor in simple in nature. In that view of the matter, it cannot be held that the accused was having full knowledge that his acts may cause death of the injured. The learned trial court while convicting the appellant has held that Sohadara Devi died due to embolism which was caused due to injury inflicted by the accused. The court further opined that the accused had knowledge that his act may cause death to the injured. This part of the order is perverse, inasmuch as, injury No. 2 was not only simple but it was also not on the vital part of the body. The court further opined that the accused had knowledge that his act may cause death to the injured. This part of the order is perverse, inasmuch as, injury No. 2 was not only simple but it was also not on the vital part of the body. If we go through the deposition of the doctor, he clearly stated that he conducted autopsy on the dead body and found (i) bandage, plaster of paris slab over left arm and on opening, it was compound fracture of lower 1/3 of ulna, (ii) bruise over calf of left leg. Thus, it is obvious that none of the injury was on vital part of the body. As a matter of fact the doctor himself deposed that injury No. 1 was grievous in nature and injury No. 2 was simple. Here it is also clarified that injury No. 1 was grievous because the left arm of the deceased was fractured, but with no inference, it can be held that arm and leg are vital part of the body which can cause death. The blood clouting could have been due to other reasons also which has not been clearly stated by the doctor. 10. It is reiterated that since the place of occurrence was not a lonely place and it was an early evening of 3 P.M. so there has to be presence of many persons at the place of occurrence, but for the reason best known to the prosecution none of them have been examined. Thus, this court holds that though there was assault on the victim as well as other family members, but in no case the conviction can be sustained for the offence under section 307/304 Part II IPC and the finding of the trial court that the appellant was having knowledge that his act may cause death to the injured is perverse in the background of injuries found on the dead body. Consequently, the conviction under section 307/304-part II IPC, is hereby, quashed and set aside. 11. However, as aforesaid the presence of the accused person cannot be ignored and looking to the evidence of the doctor, the surviving appellant deserves to be convicted under section 326 IPC. Consequently, the conviction under section 307/304-part II IPC, is hereby, quashed and set aside. 11. However, as aforesaid the presence of the accused person cannot be ignored and looking to the evidence of the doctor, the surviving appellant deserves to be convicted under section 326 IPC. Thus, the conviction under section 324/34 IPC is sustained and conviction under section 304 Part 11/307 is converted under section 326 IPC and accordingly the surviving appellant is sentenced for a period of 3 years for the offence under section 326 IPC. 12. Now coming to the alternative argument of learned Amicus for the appellants with regard to sentence awarded to him; this Court is of the view that at this stage remitting the appellants to the rigors of imprisonment at this juncture of their life would not serve the ends of justice as admittedly the appellants remained in custody for about 7 months 25 days. 13. Thus, on point of sentence, looking to the entire facts and circumstances of the case and also the fact that the alleged incident took place in the year 1998 and about 25 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the appellant was in jail for a considerable period and he has never misused the privilege of bail and now he is not involved in any criminal activities; thus, he has a chance to reform. 14. Taking into consideration of mitigating circumstances, I am of considered view that the sentence imposed by this court ought to be modified to the extent that the surviving appellant shall be released for the period already undergone, but subject to payment of fine of Rs.25,000/-. 15. As a result, the sentence as ordered by this court for the offence under 326 IPC and by the learned trial court for the offence under 324/34 IPC, is hereby, modified to the extent that the appellant is sentenced for the period already undergone subject to payment of fine of Rs.25,000/-. 16. It is made clear that the appellants shall pay the aforesaid fine of Rs.25,000/- within a period of 4 months from the date of receipt of copy of this order, before the D.L.S.A. Gumla; failing which he shall serve rest of the sentence as ordered by this Court. 17. 16. It is made clear that the appellants shall pay the aforesaid fine of Rs.25,000/- within a period of 4 months from the date of receipt of copy of this order, before the D.L.S.A. Gumla; failing which he shall serve rest of the sentence as ordered by this Court. 17. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal stands disposed of. 18. The surviving appellants shall be discharged from the liability of his bail bond, subject to fulfillment of aforesaid condition. 19. Let a copy of this order be sent to the Jharkhand High Court Legal Services Committee for quantifying the fee of learned Amicus and a copy of this order be also communicated to the court below and to the surviving appellant through the concerned police station. 20. The lower court record be sent to the court concerned forthwith.