Fulo Bhandari vs State Of Jharkhand

Shree Chandrashekhar, J

The sole accused has faced the trial on the charge of committing murder of Gobind Thakur. He has been convicted and sentenced to undergo R.I for life and fine of Rs.2,000/- under section 304 IPC.

By an order dated 12.08.2002, the appellant has been granted bail by this Court.

On the basis of the fardbeyan of Jhulni Devi, Jama P.S. Case No.67 of 1998 was registered against the appellant under section 302 IPC. During the trial, the prosecution has examined 10 witnesses; the informant is P.W.6 and the investigating officer has been examined as P.W.10.

Dr. Nand Kishore Thakur, who has conducted the post-mortem examination, has found the following injuries on Gobind Thakur:

(i) one lacerated wound 1/2" X 1/4" X skin deep over and near right ear, and

(ii) diffused swelling over the right scalp.

According to the doctor, the injuries on Gobind Thakur were caused by hard and blunt substance and his death has been caused due to shock and haemorrhage resulting from the injuries inflicted upon him.

The learned Sessions Judge has held the appellant not guilty under section 302 IPC, rather convicted and sentenced him under section 304 IPC to R.I for life.

The prosecution has projected Puran Bhandari-P.W.3, Nem Chand Bhandari-P.W.4 and Jhulni Devi-P.W.6 as eye-witnesses. Shiblal Rai-P.W.2 has been declared hostile and Birbal Bhandari-P.W.5, Shanti Devi-P.W.8 and Birma Devi-P.W.9 are hearsay witnesses. P.W.5, P.W.8 and P.W.9 are formal witnesses. They have seen the dead body of Gobind Thakur.

In her fardbeyan, the informant has stated that in the morning of 23.07.1998, her brother-in-law came in the field and assaulted her husband with Hoe (kudal). She has stated that two days prior to the occurrence the appellant had destroyed the water channel in her field, to which her husband had objected. She has further stated that the co-villager, namely, Shiblal Rai came there to rescue her husband. The prosecution witness, namely, Puran Bhandari-P.W.3 has deposed in the court that at the time of occurrence Jhulni Devi and her husband Gobind Thakur were preparing their field for sowing. At that time, the appellant came there and assaulted Gobind Thakur with Hoe on his head and neck. During his cross-examination, P.W.3 has stated that he was working in the field as a labourer for the deceased. Nem Chand Bhandari-P.W.4 is another eye-witness. He has also spoken about assault by the appellant with a Hoe on Gobind Thakur. These witnesses have remained unshaken during their cross-examination; nothing material could be elicited from them by the defence during their cross-examination.

The village Pradhan, namely, Sital Rai has been examined as P.W.1.

Mr. Rajeeva Sharma, the learned Senior counsel for the appellant submits that it has come on record that in the morning of 23. 07.1998, P.W.1 had gone to the police station and informed the police about the incident, however, a First Information Report has been lodged on the basis of the fardbeyan of Jhulni Devi recorded by the police in the village. The learned Senior counsel submits that fardbeyan of Jhulni Devi is hit under section 162 Cr.P.C and it cannot be considered as a First Information Report.

The investigating officer, during his cross-examination, has stated that P.W.1 has informed him about a quarrel and requested him to send police in the village. What was the information given by P.W.1 has not been brought on record. From the cross-examination of the investigating officer, it appears that it was just an information about the incident, details of which were not disclosed by P.W.1 to the investigating officer. Simply put, it was a cryptic information. This being the factual position, registration of the First Information Report on the basis of fardbeyan of Jhulni Devi cannot be faulted.

The learned Senior counsel has next contended that the time since death as stated by the doctor and the manner of occurrence as disclosed by the prosecution witnesses do not corroborate the prosecution's case and while so, the entire prosecution case must fail.

The medical evidence led by the prosecution through P.W.7 reveals that there were two injuries found on the body of Gobind Thakur; one lacerated wound 1/2" X 1/4", skin deep, over and near right ear and the second a diffused swelling over his right scalp. The prosecution witnesses have stated that the appellant has assaulted Gobind Thakur on his head and neck. The witnesses, who are examined in the court several years after the occurrence and, that too, in a situation which has been described by the prosecution witnesses, are not expected to remember each and every detail of the incident with mathematical precision. The eye-witnesses have consistently deposed that the appellant has inflicted one Hoe blow on Gobind Thakur. Whether it has landed on the neck or just few inches above the neck is wholly irrelevant. The fact remains that the prosecution has proved that the appellant has assaulted Gobind Thakur and due to the injury caused to him by the appellant he has died. The contradiction in the medical evidence and ocular evidence would become relevant only when it is demonstrated that the injury found on the injured/deceased in all probability cannot be caused in the manner as described by the prosecution witnesses. We find no such contradiction in this case.

Now, the question is whether the appellant has rightly been convicted under section 304 IPC and sentenced to undergo R.I for life.

Mr. Rajeeva Sharma, the learned Senior counsel for the appellant submits that the fact that the appellant has inflicted one Hoe blow on the back of the neck of Gobind Thakur would reflect that he did not intend to cause death of Gobind Thakur.

We find that the learned Sessions Judge has recorded a finding that from the prosecution's evidence it cannot be inferred that the appellant intended to cause death of Gobind Thakur. The ingredients which bring case of an accused under Exception-4 to section 300 IPC have been found present by the learned Judge in this case. However, the learned trial Judge has failed to specify whether the appellant is liable to be punished under Part-I or Part-II of section 304 IPC and the appellant has been inflicted with punishment of R.I for life, which is the maximum punishment under section 304 Part-I IPC. On this issue, we find the approach of the learned trial Judge erroneous. In our opinion, assault by the appellant on the back of the neck of Gobind Thakur would, however, impute requisite knowledge, but not the intention, to the appellant that the assault by him was likely to cause death. Thus, the appellant's case would fall under Part-II of section 304 IPC for which the maximum punishment is 10 years.

The expression "of either description for a term which may extend to" reflects the legislative intendment that as a matter of course maximum punishment should not be inflicted upon an accused. The prosecution's evidence as led in Sessions Case No.188 of 1998 does not establish that this is a case which warrants infliction of maximum punishment upon the appellant. Accordingly, we hold that the appellant is liable to be convicted and sentenced to R.I for 7 years with fine of Rs.2,000/- under section 304 Part-II IPC.

The bail-bonds furnished by the appellant is cancelled. He shall surrender before the court below to serve the remaining sentence.

In the result, Criminal Appeal (D.B.) No.140 of 2001 is partly allowed.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let the lower-court records be transmitted to the court concerned, forthwith.