1 Criminal Appeal (D.B) No.121 of 2005 ---- Against the judgment of conviction dated 11.10.2004 and the order of sentence dated 12.10.2004 passed by the Additional Sessions Judge, FTC-II, Gumla in S.T. No.314 of 2003. Gandur Oraon, son of Dukhu Oraon, resident of village -Semra, P.S.Sisai, Dist- Gumla……………..Appellant VERSUS State of Jharkhand……………………………………………… …....Respondent For the Appellant : Miss. Amrita Banerjee, Advocate For the State : Mr.P.K.Appu, APP P R E S E N T THE HON’BLE MR. JUSTICE PRADIP KUMAR MOHANTY THE HON’BLE MR. JUSTICE ANANDA SEN By Court: This appeal is directed against the judgment of conviction dated 11.10.2004 and the order of sentence dated 12.10.2004 passed by the then Additional Sessions Judge-cum-FTC -II, Gumla in S.T. No.314 of 2003 whereby and whereunder the court having found the appellant guilty for committing murder of Prem Bhagat and convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life.
2. The case of the prosecution is that on 02.08.2003 at about 9 a.m. the informant’s son namely, Prem Bhagat (deceased) proceeded to go to Ranchi and went to the house of Etwa Bhagat @ Master of his village, whose house is situated nearby the house of informant. After 10 minutes, the informant heard loud noise, and then informant along with his other sons, Gandur Bhagat and Kripal Bhagat went to the house of Etwa Bhagat @ Master whereby they saw that Gandur Oraon was assaulting Prem Bhagat by means of Spade on his head, as a result he fell down. They also saw that, Gandur Oraon, after dropping the said spade there, was fleeing away. Thereafter the informant, his sons, along with the help of other villagers, chased and caught hold the appellant, Gandur Oraon. After they caught hold the present appellant and came back to the spot, they saw the deceased was lying dead and blood was oozing from the back side of the head of the deceased. 2 Further case of the prosecution is that they came to know that Gandur Oraon had love affair with Indro Devi, the wife of Digamber Bhagat for the last two years and the appellant came to know about the relationship of the deceased with Indro Devi. When the appellant saw the deceased at his house, he assaulted the deceased by means of spade resulting in his death.
3. Thereafter the informant on 02.08.2003 gave his fardbeyan (Ext.5), upon which first information report (Ext.6) of Sisai (Bharno) P.S.case no.73 of 2003 was registered for the offence under Section 302 of the Indian Penal Code against the appellant. The Investigating Officer (P.W.12) took up the matter for investigation, during which, he held inquest of the dead body of the deceased and prepared inquest report. Thereupon the dead body was sent for post mortem examination which was conducted by Dr. A.D.N.Prasad (P.W.11).
4. After completion of investigation, when the charge sheet was submitted, cognizance of the offence under Section 302 of the Indian Penal Code was taken against the appellant. The case was committed to the Court of Sessions, and the appellant was put on trial.
5. The defence has examined only one witness as D.W.1 and the plea of the defence is complete denial of the allegation, inasmuch as D.W.1 has stated that the appellant has been falsely implicated in this case and at the time of occurrence, he was ploughing the field with him.
6. During trial, the prosecution examined as many as twelve witnesses, including the doctor and the Investigating Officer. The trial court after appreciating the evidences of prosecution witnesses and the materials available on record, found the appellant guilty for committing murder of the deceased and accordingly, recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. The motive of the occurrence was that the appellant had suspicion that Prem Bhagat (deceased) had illicit relation with Indro Devi. When the appellant saw the deceased at his house, he assaulted the deceased by means of spade. 3 7. Based on the evidences of the eye witnesses, Miss. Amrita Banerjee, counsel for the appellant, has assailed the judgment of the learned court below on the following grounds. (a). All the eye witnesses namely, P.W.3, Tandur Bhagat, P.W.5, Kripal Bhagat and P.W.6, Mahabir Bhagat, are brothers of the deceased and P.W.9, Budhram Bhagat, is the father of the deceased, and thus are the interested witnesses and their statements are not corroborated with any of the independent witness; (b). In cross-examination, they stated that when they reached at the place of occurrence, the accused was fleeing away and they caught hold of the accused along with others, meaning thereby that they have not seen the assault. (c). The prosecution has suppressed the material facts and the charge is defective inasmuch as the material object was not produced before the court; (d). There are major contradictions in the statements of the witnesses and there is no material to believe the evidence of the witnesses. (e). Lastly, she argued that the case under Section 302 of the Indian Penal Code appears to be a case under Section 304 Part II of the Indian Penal Code; The prosecution had not proved the intention of murder of the deceased and there is no eye witness of the case and that the deceased died due to one blow on the back portion of the head. There is no allegation of giving repeated blow, meaning thereby that there was no intention to kill. (f). From the FIR it is evident that there was altercation between the appellant and deceased at the place of occurrence which suggest that the appellant was provoked by the deceased. 4 8. In the aforesaid backdrop, learned counsel for the appellant submitted that the learned trial court has committed illegality and infirmity in convicting the present appellant under Section 302 of the Indian Penal Code.
9. On the other hand, Mr.P.K.Appu, learned A.P.P has vehemently opposed the contention raised by the learned counsel for the appellant and submitted that the appellant has assaulted the deceased on the back side of his head by means of spade, as a result of which, the deceased fell down and died. The trial court has rightly convicted the appellant on the evidence of P.Ws.3, 5, 6 and 9, as all these witnesses are eye witnesses. They had seen the occurrence and the medical evidence also corroborated the statement of oral evidence and also the 'Kodal' (spade) was seized from the spot by the Investigating Officer. On the basis of the aforesaid submission, learned Additional Public Prosecutor submitted that there being no infirmity in the impugned judgment and the order of conviction and sentence, the findings arrived at by learned trial court do not require any interference by this Court.
10. We have heard learned counsel for both sides and also perused the materials available on record.
11. P.W.1-Etwa Bhagat, who is an independent witness, has been declared hostile.
12. P.W.2- Smt. Indro Devi, the wife of Digamber Bhagat, has been declared hostile.
13. P.W.3- Tandur Bhagat, who is brother of the deceased, has deposed that he heard some noise, then he along with Kripal Bhagat and his father Budhram Bhagat as well as Mahabir Bhagat, went at the house of Etwa Bhagat @ Master, where they saw Gandur Oraon had assaulted his brother Prem Bhagat by means of spade, as a result of which, he fell down, thereafter the accused started fleeing away from there, leaving the said spade. In his cross-examination at para 12 he has stated that they caught Gandur Oraon about 150 ft. away from there.
14. P.W.4 - Sukra Oraon, who is the father-in-law of the deceased, has proved his signature on seizure list of spade (Ext.1) and also proves LTI of 5 Budhram Bhagat on seizure list. In his cross-examination he has admitted that police has recorded his statement and in his statement before the police he had told that Prem Bhagat was murdered by Gandur Oraon, which is disclosed to him by Budhram Bhagat.
15. P.W.5 – Kripal Bhagat, who is the younger brother of the deceased, is an eye witness, has deposed that on hearing hulla, he went at the house of Etwa Bhagat, where he saw Gandur Oraon, after assaulting his brother was fleeing away. In cross-examination he has deposed that he along with Gandur Bhagat, his father, as well as Mahabir Bhagat, had reached at the place of occurrence. In his cross-examination at paragraph 14 he has stated that on hulla he along with Gandur Bhagat and Mhabir Bhagat reached at the place of occurrence.
16. P.W.6- Mahabir Bhagat, who is an eye witness, has deposed that on hulla, he reached at the house of Etwa Oraon @ Master where he saw Gandur Oraon after assaulting Prem Bhagat was fleeing away from there. In his cross-examination, he has stated that when he reached at the place of occurrence, the accused was fleeing away and they chased him and caught him and kept him at the house of Etwa Master, by tying him.
17. P.W.7 – Dutiya Bhagat, who is hearsay witness, was informed by the villagers that Prem Bhagat was killed by Gandur Oraon. He further stated that he had gone at the place of occurrence and saw the dead body.
18. P.W.8- Bishun Bhagat, who is hearsay witness, was informed by Indro Bhagat that Prem Bhagat was killed by Gandur Oraon. He further stated that he had seen Gandur Oraon fleeing away.
19. P.W.9 – Budhram Bhagat, father of the deceased, who is an eye witness has deposed that, he heard hulla, thereafter he along with his sons Gandur Bhagat and Kripal Bhagat went at the house of Etwa Master, where they saw Gandur Oraon has assaulted Prem Bhagat on the back side of his head by means of spade. When Gandur Oraon saw them, he left the spade and started fleeing away. He along with his sons and villagers chased him and caught him. In his cross-examination at paragraph 18 he has confirmed that 6 at the time of occurrence, he was present at his house and he denied the suggestion that he was not present at his house. In his cross-examination at paragraph 22 he has stated that on hearing the voice of his son Prem Bhagat, he went at the place of occurrence and saw that Gandur Oraon was assaulting the deceased. He proved his signature on fardbeyan as Ext.2. He also proved signature of Sukra Oraon on fardbeyan as Ext.2/1.
20. P.W.10 – Shiv Narayan Sahu, has produced the seized spade in court.
21. P.W.11 – Dr.A.D.N.Prasad, has conducted post mortem examination on the dead body of the deceased and found lacerated wound at the occipital region on skull 3”x 1” x ½ “ with depressed fracture of skull and laceration of brain matters with a large intra cranial haemotoma. Doctor opined that the cause of death was ante mortem head injury. The injury may have been caused by the back portion of spade. In cross-examination he said that such type of injury is also possible if a person falls on hard substance through his head. He proved post mortem report as Ext.3.
22. P.W.12 –Stephen Ekka, who is an investigating officer, has proved seizure list as Ext.4. He proved fardbeyan as Ext.5. He also proved formal FIR as Ext.6. He has stated that the witness Indro Devi and Etwa Bhagat had fully supported the case of the prosecution, in his presence. In cross-examination he has stated that he did not find any blood stain at the place of occurrence but there was blood stain over the Kudal (spade) used in the crime.
23. D.W.1- Mangra Mahto has stated that he has planting paddy at the field of Etwa Master and that the field is about ½ k.m. away from the house of Etwa Master. In paragraph 8 of cross-examination, he stated that he had not told the police that Gandur Oraon was ploughing the field with him, on the day of occurrence.
24. It is settled principle of law that the evidences of interested witnesses are not always suspected and it has to be scrutinized with caution and can be accepted if it is found reliable. It is also held by the Apex Court 7 that interested witnesses are not necessarily bad witnesses. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analyzed with care. But, once the court comes to a conclusion that it is truthful and in accord with the relevant circumstances on record, the court should not hesitate to accept it and record conviction on the basis thereof.
25. This Court has examined the evidence of P.W.3, P.W.5, brother of the deceased, P.W.6 (a villager) and P.W.9 (father of the deceased).
26. It is crystal clear that they had not seen that the appellant assaulting the deceased on the back side of his head. On hearing hulla, they came to the place of occurrence and thereafter they saw that the appellant after assaulting the deceased fleeing away from the spot. They chased the appellant and caught hold the appellant in the house of P.W.1. The weapon of assault was dropped by the appellant at the place of occurrence. Thereafter first information report (Ext.6) of Sisai (Bharno) P.S.case no.73 of 2003 was registered on the same day. It is also clear that nobody had seen the occurrence. When they heard hulla, they saw that the appellant was in the spot. On seeing them, the appellant fled away. From the above, it is crystal clear that there is no direct evidence that the accused had assaulted the deceased with spade.
27. On scanning the report of the Doctor and the post mortem report (Ext.3), Doctor opined that the injury was possible by the back side of spade. In paragraph 5, it is admitted that such type of injury was possible by the back side of the spade. There was no dispute that there was only one lacerated injury at the occipital region on skull measuring 3” x 1” x ½ ” with depressed fracture of skull and laceration of brain matters with a large intra cranial haemtoma at the head of the deceased and the evidence of the Doctor further suggest that this injury may be possible by back portion of 'Kudal'. In cross-examination he has stated that this injury is also possible if a person falls on hard substance through his head. From the above, it is crystal clear that the petitioner had no intention to kill the deceased and absolutely there 8 is no material to suggest that the accused assaulted the deceased for killing him. Considering the evidence including medical evidence, there is a possibility that the accused assaulted the deceased by back side of 'Kodal'. Further it is admitted that there is no repeated blow.
28. We do find that only one blow was given by the appellant which, according to the medical evidence, was sufficient to cause death but the question crops up as to whether in the facts and circumstances noted above, the appellant can be said to have had any intention to commit murder.
29. We may reiterate that admittedly one injury was inflicted on the deceased and the injury inflicted by the appellant was possible from the back side of 'Kodal'(spade). Nothing has been brought by the prosecution to prove that there was intention on the part of the appellant to commit murder.
30. Under the circumstances, going through the FIR, evidence and the post mortem report, one can come to the conclusion that the appellant, though had assaulted the deceased, causing injury, resulting into his death but he had had no intention to commit murder.
31. Under the circumstances, the trial court committed illegality in recording the conviction under Section 302 of the Indian Penal Code. Accordingly, the conviction recorded under Section 302 and the sentence imposed is hereby set aside. We convict the appellant under section 304 Part II of the Indian Penal Code and sentence him to rigorous imprisonment for ten years, which period the appellant had already undergone. 32 Consequently, the appellant is directed to be released forthwith if not wanted in any other case.
33. Thus, this appeal is dismissed by altering the conviction and modification in sentence as aforesaid. (Pradip Kumar Mohanty, J.) (Ananda Sen, J.) Jharkhand High Court, Ranchi, The 19th September, 2016, NAFR/N.Dev.