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2023 DIGILAW 913 (JHR)

Amal Das v. State of Jharkhand

2023-07-21

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and the order of sentence, both dated 29.10.2003, passed by the learned Additional District & Sessions Judge, Fast Track Court No. II, Jamshedpur in S.T. No. 67 of 1995, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for seven years under Section 304 Part-I of the Indian Penal Code. 3. The prosecution case in brief is that on 30.08.1993 at about 10 A.M. the informant along with his brothers and uncle went to see his land. They found that their land was under boundary wall and the egress and ingress upon the land was closed. It is further alleged that when they tried to demolish the wall then the appellants and their younger brother armed with rod, sword, sabal and spade came there and they started abusing and assaulting the informant parties. As a result, Chittaranjan Das and Sudhansu Das received injury and blood started oozing. Thereafter, appellants fled away and took shelter in the nearby house. In the meantime, police came there and caught the appellants. 4. Mr. A.K. Sahani, learned counsel for the appellants submits that the leaned trial court has erred in not taking into note of the fact that the prosecution version does not find support from the evidence on record. He further submits that the trial court has failed to consider the fact that PW-10 has stated that the deceased Sudhansu Das after the alleged occurrence went to jail and thereafter came out on bail and after 9 days of the occurrence he died, but the PW-4 who had conducted the postmortem examination on 09.09.1993, was unable to state in his cross examination regarding the age of the injuries found on the deceased Sudhansu Das. He further submits that the trial court also failed to take note of the fact that if the deceased sustained injury on the alleged date and time of occurrence and was admitted to hospital immediately after the occurrence, then why not injury report of the deceased was produced and proved to show that he really sustained injury on the alleged date and time of occurrence. Further, the learned trial court also failed to consider the statement of the I.O. who admitted that when any accused on account of any injury sustained by him needs any treatment, while forwarding him to jail custody, he should be recommended for medical treatment. But in this case although the deceased was forwarded into jail custody but he was not recommended for any treatment for his injury. Relying upon the aforesaid contention, Mr. Sahani prays for acquittal of the appellants. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR and looking to the comprehensive facts and circumstances of the case and the deposition of the prosecution witnesses; it appears that there was a dispute over the land and on 30.08.1993 at about 10 A.M. informant along with other PWs. went to see the land and found that the land was under boundary wall. When the prosecution parties tried to demolish the boundary wall, the appellants reached there and assaulted the informant. Admittedly; there was a case and counter case for the same cause of action. As a matter of fact, it is also evident that the prosecution parties were facing trial for the offence under Section 307 of the IPC. PW-10 in Para 19 of his deposition deposed that Sudhansu Das (Deceased) died three days after returning from jail. In Para 20 he further deposed that the treatment of Sudhansu was done in jail which is contradictory with the deposition of the I.O. In Para 23 he further deposed that after coming out of jail Sudhansu went to his home and did not re-join his job. PW-13 (IO) in Para 12 of his deposition deposed that inspector A.K. Verma arrested Sudhansu Das at the place of occurrence before the investigation was transferred to him. In Para 16 he further deposed that Sudhansu Das, the deceased, was forwarded in relation to the counter case and he has not recommended for the treatment of Sudhansu Das in jail. He deposed that in cases where an accused is in need of any treatment recommendation of court is required. 7. Admittedly, the injury report of the deceased has not been brought on record by the prosecution. He deposed that in cases where an accused is in need of any treatment recommendation of court is required. 7. Admittedly, the injury report of the deceased has not been brought on record by the prosecution. Further, the Doctor PW-4 has clearly stated that the stitch injury is possible due to successive falls. It is also on record that the deceased Sudhansu Das was sent to jail but in the jail, he was not treated and there is no iota of evidence to show that the deceased Sudhansu was injured while he was in jail. This creates a suspicion in the entire prosecution case. At this stage, it is also necessary to refer the finding of the trial court that on the date of occurrence i.e. 30.08.1993, there was a fight between the prosecution and informant party on the question of breaking of wall. The learned trial court at Para-12 has held that the accused persons were in possession of the land and the prosecution party had gone there for forcible possession and thus the learned trial court has held that they were aggressor. It has been further held by learned trial court that it was they, who tried to break the wall. In this background and by scrutiny of the documents it is evident that the deceased went to jail and he was neither sent for treatment from jail nor after coming out, after couple of days, from jail he again went for medical treatment. As a matter of fact, after coming out from jail he directly went to his residence and since no injury report of the deceased is on record therefore the prosecution has failed to establish nexus between the injury caused and the death of the deceased. It is settled principle that there has to be nexus between assault and the death of the deceased and in the instant case the prosecution has miserably failed to prove the cause of death of the deceased. It is settled principle that there has to be nexus between assault and the death of the deceased and in the instant case the prosecution has miserably failed to prove the cause of death of the deceased. At the cost of repetition, it is also pertinent to refer the deposition of I.O. who in Para 16 has deposed that the deceased was forwarded in relation to a counter case and he has not been recommended for treatment and after returning from jail he directly went to his home and the deceased died after three days; thus in the absence of injury report of the deceased the appellants deserve benefit of doubt, inasmuch as, there is a specific finding of the learned trial court that the prosecution parties were the aggressor in this case and they are also facing trial for the charge under Section 307 of the IPC which is recorded at Para 3 of the judgment. 8. Thus, the learned trial court has committed an error in convicting the appellants for the offence under Section 304 Part I of the IPC and sentenced them to undergo RI for 7 years ignoring all these vital aspects and his own finding that the informant party were the aggressor and also the fact that nexus between assault and the death of the victim has not been proved. In that view of the matter, conviction of the appellants for the offence under Section 304 Part I is not sustainable in the eye of law. 9. Consequently, the instant appeal is allowed and the judgment of conviction and the order of sentence, both dated 29.10.2003, passed by the learned Additional District and Sessions Judge, Fast Track Court No. II, Jamshedpur in S.T. No. 67 of 1995, is hereby, quashed and set aside. 10. The appellants shall be discharged from the liability of their bail bonds. 11. Let a copy of this order and the lower court record be sent to the court concerned forthwith.