1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B) No. 237 of 2017 with I.A No.1192 of 2017 (Against the Judgment of conviction dated 16.03.2013 and Order of sentence dated 19.03.2013, passed by the Additional Sessions Judge-I, Gumla, in S.T No.289 of 2009.) Bharat Kansari ...… Appellant Versus The State of Jharkhand ...… Respondent -------- CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA THE HON’BLE MR. JUSTICE B. B. MANGALMURTI ------ For the Appellant : Mr. Md. Zaid Ahmed For the State : A.P.P. ------ By Court:- Though this case is listed for consideration of the interlocutory application filed by the appellant for bail, but upon going through the record, we find that the entire appeal can be disposed of at this stage itself, which is being done accordingly.
2. Heard the learned counsel for the appellant and the learned counsel for the State.
3. The appellant is aggrieved by the Judgment of conviction dated 16.03.2013 and Order of sentence dated 19.03.2013, passed by the learned Additional Sessions Judge-I, Gumla, in S.T No.289 of 2009, whereby the sole appellant, Bharat Kansari, has been found guilty and convicted for the offence under Section 304 Part-II of the Indian Penal Code, for causing the death of his own wife. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I for ten years and fine of Rs.2000/- for the said offence.
4. The prosecution case was instituted on the basis of the fardbeyan of Ramkrishna Sahu, the father of the deceased, Hinu Devi, wherein, he has stated that his daughter was married with the accused in the year 1995. They had two children out of the wedlock and after some years of the marriage, the accused took up some bad habits, including assaulting his wife. It is stated that on 2.8.2009, the informant was informed that the accused had assaulted his wife due to which she had become unconscious, whereupon he went to the place of occurrence and found his daughter unconscious. She was also pregnant. She was brought to the hospital, but she died. On the basis of the fardbeyan of the informant, Palkot P.S Case No. 29 of 2009 2 corresponding to G.R No. 596 of 2009, was instituted for the offence under Section 304 of the Indian Penal Code, against the accused and investigation was taken up. After investigation, the police submitted charge-sheet in the case.
5. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 304 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial.
6. In course of trial, the prosecution has examined 11 witnesses in the case, and they include even the mother of the accused, namely, P.W.-1 Janki Devi, the sister-in-law (bhabhi) of the accused, namely, P.W.-2 Dayamanti Devi, the brother of the accused, namely, P.W.-3 Lakhan Kansari, and the son of the accused, namely, P.W.-8 Arjun Kansari, and even these witnesses have supported the prosecution case, stating that it was the accused who had assaulted his wife. The other witness, including the informant, who is the father of the deceased, and the brother of the deceased, have also supported the prosecution case.
7. However, the evidence of the Doctor, who had conducted the post-mortem examination on the dead body of the deceased is very important in the case. P.W.-6 Dr. Sugendra Sai had conducted the post-mortem examination on the dead body of the deceased and he had found only two external injuries on the dead body, one was abrasion on the right leg and other was bruise 2” x 2” on the left side of the abdomen. Upon dissection it was found that the spleen of the deceased was ruptured and the abdominal cavity was full of blood, which was the cause of death of the deceased.
8. The post-mortem report and the other necessary documents, including the FIR have been proved and marked exhibits in the case.
9. Thus, from medical evidence on record, it is apparent that there were only two external injuries on the dead body of the deceased. There was only a bruise on the stomach of the deceased and the death was due to the fact that the spleen of the deceased was ruptured, due to which the abdominal cavity of the deceased was filled with blood.
10. We are of the considered view that looking to the medical evidence of assault, being only a bruise on the abdomen, it can be safely inferred there was no intention on part of the accused to have caused the death of his wife, and the prosecution has been able to prove 3 the charge beyond all reasonable doubts for the offence under Section 304 Part-II of the Indian Penal Code, for which the accused appellant has also been found guilty and convicted by the Trial Court below. As such, there is no illegality in the impugned Judgment of conviction, which we hereby affirm.
11. However, coming to the quantum of sentence, we find that as the only external injury on the deceased was a bruise on the abdomen and the death of the deceased was due to the rupture of the spleen, the maximum sentence prescribed by law for the offence under Section 304 Part-II of the Indian Penal Code, was not at all warranted to be imposed upon the appellant. The appellant is in custody since 7.8.2009 and has remained in custody for more than eight years. We are of the considered view that the interest of Justice would be served if the appellant is sentenced to undergo the R.I. for the period already undergone by him.
12. Accordingly, we modify the Order of sentence dated 19.03.2013 passed by the learned Additional Sessions Judge-I, Gumla, in S.T No.289 of 2009, to the extent that the appellant is sentenced to the R.I. for the period already undergone by him, for the offence under Section 304 part-II of the Indian Penal Code. Accordingly, the appellant Bharat Kansari is directed to be released and set at liberty forthwith, if his detention is not required in any other case.
13. This appeal is accordingly, dismissed with the modification in sentence as aforesaid. Consequently, the aforesaid Interlocutory Application also stands disposed of. Let the Lower Court Records be sent back to the Court concerned forthwith, along-with a copy of this Judgment. (H. C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi. Dated the 15th of January, 2018. NAFR / DS/RP