Judgment:
-1- Cr. Appeal (DB) No.1535 of 2007 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.1535 of 2007 (Against the Judgment of conviction dated 12th of July 2007 and Order of sentence dated 17.07.2007, passed by Additional Judicial Commissioner-XVII th , Ranchi, in S.T. No.418 of 2005.) 1. Gagan Kumar @ Mintu @ Gagan Kumar Verma 2. Gautam Kumar @ Bittu @ Gautam Kumar Verma …... Appellants Versus The State of Jharkhand ….. Respondent PRESENT HON’BLE MR. JUSTICE H.C. MISHRA HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Appellants : Mr. B.M. Tripathy, Sr. Advocate Mr. Naveen Kr. Jaiswal, Advocate For the State : Mr. Azeemuddin, APP ….. By Court.:- Heard learned senior counsel for the appellants and learned counsel for the State.
2. Both the appellants are aggrieved by the Judgment of conviction dated 12.7.2007 and Order of sentence dated 17.07.2007, passed by the learned Additional Judicial Commissioner-XVIIth, Ranchi, in S.T. No.418 of 2005, whereby, both appellants have been found guilty and convicted for the offences under Sections 302, 323 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, both appellants have been sentenced to undergo life imprisonment and fine of Rs.5,000/- each for the offence under Sections 302 / 34 of the Indian Penal Code, and they have further been sentenced to undergo R.I. for one year each for the offence under Sections 323 / 34 of the Indian Penal Code, and both the sentences were directed to run concurrently. -2- Cr. Appeal (DB) No.1535 of 2007 3. According to the prosecution case, the occurrence had taken place on 26.3.2005 and it is alleged that on the occasion of Holi, the informant Suren Ram had opened a stall for selling colours. It is alleged that both the accused appellants took colours worth Rs.200/- from the said stall, but they did not make the payment and on demand, they threatened for the dire consequences and went away without making any the payment. Thereafter, at about 2 PM, while the informant, his brother Sudhir Ram and his sister's son Sushil KumarVerma were going towards Seva Sadan Hospital, both the accused persons came armed with iron rods and they assaulted Sudhir Ram on his head, due to which, he fell unconscious. His sister's son came to his rescue, who was also assaulted by both the accused persons causing injuries on his hand and thereafter, both the accused persons fled away. The injured brother of the informant was brought to the Nagarmal Modi Seva Sadan Hospital for his treatment, where in course of treatment, he died. The fradbeyan of the informant Suren Ram to the aforesaid effect was recorded at the said Hospital on 26.03.2005 at about 4.00 PM, on the basis of which, Kotwali P.S. Case No.184 of 2005, corresponding to G.R. No.923 of 2005, was instituted for the offence under Sections 302, 323, 325 / 34 of the Indian Penal Code, against both the accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet against both the accused persons.
4. After commitment of the case to the Court of Session, charge was framed against both the accused for the offences under Sections 325 / 34 and 302 / 34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined seven witnesses, including the I.O., and the -3- Cr. Appeal (DB) No.1535 of 2007 Doctor conducting the post-mortem examination on the dead body of the deceased, out of whom, one witness namely PW–6 Vijay Ram had turned hostile and had not supported the prosecution case against the accused persons. He has only stated that he saw someone assaulting the deceased and later he learnt that the deceased had died.
5. PW–5 Suren Ram is the informant in the case and the brother of the deceased. This witness has stated that the occurrence had taken place on 26.3.2005, which was a Saturday. He had opened a stall for selling colours, from where the accused persons had purchased colours worth Rs.200/-, but they did not make the payment of money for the same and on demand, they threatened for dire consequences and went away. On the same day, at about 2.00 PM, the informant along with his deceased brother Sudhir Ram and his sister's son Sushil Kumar Verma were going to the Hospital for taking medicine, when both the accused persons came armed with iron rods and they assaulted the brother of this witness on his head causing bleeding injury and he fell unconscious. The sister's son of this witness also came to his rescue, who was also assaulted by the accused persons by iron rod causing injury on his hand and when this witness went to save them, both the accused persons fled away. Thereafter, the injured brother was brought to Nagarmal Modi Seva Sadan for treatment, where, in course of treatment, he died. The police arrived upon the information given by the Hospital authorities and recorded his fradbeyan, on which he has identified his signature and also the signature of his sister's son, which were earlier marked Exts.1 and 1/a. He has also stated that the inquest report of the dead body was also prepared, on which, also both of them had put their signatures and he has identified both the signatures, which were earlier marked Exts. 2 -4- Cr. Appeal (DB) No.1535 of 2007 and 2/a. He has identified the accused persons in the Court. There is nothing of much importance in his cross-examination, so as to, discredit his testimony.
6. PW–2 Sushil Kumar Verma is the sister's son of the informant and PW–1 Satish Ram is also an eyewitness to the occurrence, and they have also supported the prosecution with only difference that PW–1 Satish Ram has stated that three persons, including these appellants, had assaulted the deceased. Both of them had stated that the assault was made by the accused persons on the head of the deceased. The deceased subsequently died and in the occurrence, and Sushil Kumar Verma was also injured. PW–2 Sushil Kumar Verma has identified the signatures on the fardbeyan and the inquest report, which were marked exhibits as detailed above. Both these witnesses have identified the accused persons in the Court, and stood the test of cross-examination, and there is nothing in their cross-examinations to discredit their testimony.
7. PW–3 Dr. Chandra Shekhar Prasad had conducted the post-mortem examination on the dead body of the deceased on 27.3.2005, and had found the following injuries on the dead body:- Abrasions : (i) 1.5 cm on left arm lateral side. (ii) 1.5 cm on the back of left forearm - lower part (iii) 2.1 cm and 3.1 cm on left knee front. (iv) 1.1 cm on right knee front. (v) 7.5 cm on the back of left forearm - upper part (vi) 5.3 cm on right cheek Lacerated wound : (i) 2.1 cm X bone deep on left parietal region of head. Internal injuries : There was diffused contusion of left temporo-parietal scalp with depressed fracture 4 X4cm on left temporo parietal bone. There was contusion of brain with presence of subdural blood & blood-clot over both sides of brain. -5- Cr. Appeal (DB) No.1535 of 2007 This witness has stated that all the injuries were ante-mortem in nature, caused by hard and blunt substance and the death was caused due to head injury. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.-3. In his cross-examination, this witness has stated that the head injury was caused by a single blow.
8. PW–4 is the Dr. Suresh Nag Yadav, who had examined the injuries on PW–2 Sushil Kumar Verma on 26.03.2005, but this witness is private medical practitioner and he has identified the injury report, which was marked Ext.-4. He had found three injuries on the said injured, one of which was fracture of metacarpal bone on the left hand, which was grievous in nature, the others being simple in nature.
9. PW–7 is Sarju Pandit, who is the I.O. of the case. This witness has stated that on 26.3.2005, he was posted as S.I. in Kotwali Police Station and on that date, one O.D. Slip was received from Nagarmal Modi Seva Sadan, Ranchi, which was entered as sanha No.796 dated 26.3.2005, and after that he went to the said Hospital, where, he reached at about 4.00 PM, and he recorded the fradbeyan of the informant Suren Ram at the Hospital, which he had identified and the same was marked Exhibit–6. He has also identified the requisition for the injury report of Sushil Kumar Verma to be in his pen and signature, which was marked Ext.-7 and he has proved the inquest report of the dead body, which was marked Ext.-8. The dead body challan was proved by him as Ext.-9 and he has proved the formal FIR, which was marked Ext.-10. This witness has given the details of the place of occurrence and has stated about the investigations made by him. He had also arrested both the accused persons and upon getting the post-mortem report, he had submitted the charge-sheet against the accused persons. -6- Cr. Appeal (DB) No.1535 of 2007 Though, this witness has under gone lengthy cross-examination, but there is nothing of much importance in his cross-examination.
10. In view of the evidence on record, particularly the evidence of PW–5 Suren Ram and PW–2 Sushil Kumar Verma, who was also injured, learned senior counsel for the appellants very fairly submitted that he shall confine his arguments only to the submission that the conviction of the appellants under Sections 302 / 34 of the Indian Penal Code, be converted into one under section 304 Part-II of the Indian Penal Code. It is submitted by the learned senior counsel for the appellants that even according to the eyewitnesses, there was no repetition of blow on the head of the deceased and even PW–3 Dr. Chandra Shekhar Prasad, conducting the post-mortem examination, found only one lacerated wound on the head of the deceased. Other injuries were on the non-vital parts of the body and were only abrasions. Learned senior counsel accordingly, submitted on the basis of the evidences on record that it can be said that there was no intention on the part of the accused persons for committing murder of the deceased, though knowledge of death due to the assault by the iron rod, cannot be ruled out. Learned senior counsel accordingly, submitted that in the facts of this case, the offence is made out only under Section 304 Part II of the Indian Penal Code and not under Sections 302 / 34 of the Indian Penal Code. Learned senior counsel submitted that both the appellants are in custody for more than twelve years and as such, they have served out sufficient punishment and they should be released from the jail custody.
11. Learned counsel for the State on the other hand has opposed the prayer. It is submitted that there are three eyewitnesses to the occurrence, who was PW–5 Suren Ram, PW–2 Sushil Kumar Verma, who was injured -7- Cr. Appeal (DB) No.1535 of 2007 in the occurrence, and PW–1 Satish Ram, who have fully supported the prosecution case, stating that both the accused persons had assaulted the deceased by iron rod on his head. It has also been submitted that their ocular evidence is fully corroborated by the medical evidence of PW–3 Dr. Chandra Shekhar Prasad and offence is made out under Section 302 of the Indian Penal Code and there is no illegality in the impugned Judgment of conviction and Order of sentence.
12. Having heard learned counsels for both the sides and upon going through the record, we find substance in the submission of the learned senior counsel for the appellants. The evidence of the informant PW–5 Suren Ram and PW–2 Sushil Kumar Verma, who was injured in the occurrence, clearly show that they have stated about only one assault made on the head of the deceased. It is also not stated that which of the accused, of these two, made the said assault. There is admittedly no allegation of repetition of assault on the head of the deceased and only one lacerated wound was found in the post-mortem examination of the dead body of the deceased by PW–3 Dr. Chandra Shekhar Prasad. In that view of the matter, it cannot be said that there was any intention on the part of the accused persons to commit the murder of the deceased. Had there been any such intention, the blow must have been repeated on the head of the deceased. As such, we find that it is a fit case for conversion of the conviction of both the accused appellants to Section 304 Part-II of the Indian Penal Code, from their conviction under Section 302 of the Indian Penal Code.
13. Accordingly, the impugned Judgment of conviction dated 12.07.2007 passed by the learned Additional Judicial Commissioner-XVII th, Ranchi, in S.T. No.418 of 2005, is modified to the extent that both the -8- Cr. Appeal (DB) No.1535 of 2007 appellants Gagan Kumar @ Mintu @ Gagan Kumar Verma and Gautam Kumar @ Bittu @ Gautam Kumar Verma, are convicted for the offence under Sections 304 Part II of the Indian Penal Code. Their conviction under Sections 323 / 34 of the Indian Penal Code is also maintained for causing hurt to PW-2 Sushil Kumar Verma. Though this witness is said to have suffered a grievous injury, but he was examined only by a private medical practitioner, which does not inspire confidence.
14. Accordingly, the impugned Order of sentence dated 17.7.2007, sentencing the appellants to undergo life imprisonment and fine of Rs.5,000/- each for the offence under Sections 302 / 34, is also set aside. Since we are convicting both the appellants under Section 304 Part–II of the Indian Penal Code, and even if the maximum sentence for the same, i.e., R.I. for 10 years is imposed upon the appellants, they have already served out the same, as they are in custody for more than 12 years.
15. In that view of the matter, both the appellants Gagan Kumar @ Mintu @ Gagan Kumar Verma and Gautam Kumar @ Bittu @ Gautam Kumar Verma, are directed to be released and set at liberty forthwith, if their detention is not required in any other case.
16. This appeal is accordingly, dismissed with modification in the impugned Judgment of conviction and Order of sentence as aforesaid. Let the Lower Court Record be sent back forthwith to the Court concerned, along with a copy of this Judgment. (H.C. Mishra, J.) (Anil Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, the 18th of December, 2017. R. Kumar/NAFR