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Judgment
Rajesh Kumar, J
Heard Mr. S. P. Roy, learned counsel for the appellants and Mr. Pankaj Kumar Mishra, learned A.P.P
The present appeal is directed against the Judgment of conviction and order of sentence dated 14.05.2004, passed by learned 3rd Additional Sessions Judge, (Fast Track Court), Dumka, in Sessions Case No.40 of 2002/ 641 of 2002, arising out of Saraiyahat P.S. Case No.156 of 2000, whereby the appellants have been convicted for the offence under Section 304(II) of the Indian Penal Code (IPC) and have been sentenced to undergo rigorous imprisonment for five years.
The criminal law has been put into motion by lodging an F.I.R being Saraiyahat P.S. Case No.156 of 2000 against the appellants under Sections 341/ 323/ 324/ 307/34 I.P.C. Subsequently Section 302 IPC was added vide order dated 11.12.2000, as the informant died during his treatment. The F.I.R has been lodged on the fardbeyan of deceased Satnarayan Sah.
The brief facts of the case, as disclosed in the F.I.R., is that on 01.12.2000 at 08:00 a.m. the informant (deceased) was planting his potato field and his wife Rama Devi was taking bath there. By that time accused Janardan Kapri and Pandav Kapri, who were working in their potato field by the side of the field of the informant, came to the informant and abused him complaining that why he used to send his daughter for grazing she-goat which has caused damage of the crop. Thereafter, accused Janardan Kapri caught hold the informant and Pandav Kapri assaulted twice on the head of the informant with a spade. As a result of which the informant fell down being injured. The wife of the informant tried to save him, and the accused persons have also assaulted her. It has further been alleged that on raising hulla, villagers assembled there and seeing the villagers, accused persons fled away. Thereafter, the informant went to the police station and lodged an information. The informant has claimed that the accused persons had assaulted him with an intention to kill him.
On the basis of the said fardbeyan, the police instituted the F.I.R and after investigation, has submitted charge-sheet against the accused persons for the offence under Sections 341/ 323/ 324/ 307/34/ 302 I.PC. Upon which cognizance has been taken and accordingly charge has been framed and the case has been committed to the court of Sessions to which the appellants have pleaded innocence and claimed to be tried.
For substantiating the prosecution story, altogether thirteen witnesses have been examined on behalf of the prosecution. The defence has exhibited three documents, i.e. Ext.-A, which is the injury report, sustained by Janardan Kapri (appellant No.1), and Exts.-B & C are the counter case filed by the appellant.s
P.W.-1, Baijnath Sao, is the brother of the informant and an injured witness. He has deposed that the accused Pandav Kapri had given spade blow on the head of the informant. The injury is simple in nature.
P.W.-2, Ramanand Sao, is the cousin of the informant. He has stated that on hulla, he went to the place of occurrence and had seen the accused persons assaulting the informant. In cross-examination, he has admitted that he is an accused of the counter case, filed by the accused persons.
P.W.-3, Sanjay Kumar Sah, is the son of the informant. He has stated that he was not present at the place of occurrence. He has stated that he took his father to the police station from where he was sent to hospital for treatment.
P.W.-4, Sudama Devi, is the wife of the deceased. She has supported the prosecution story. In cross-examination, she had admitted that the accused persons have filed a counter case against them.
P.W.-5, Rukmani Devi, is the wife of the brother of the informant. She has stated that she came to know about the incident from other witnesses.
P.W.-6, Nilam Devi, has claimed to be an eye witness of the alleged occurrence. She has deposed that she had seen the accused persons assaulting the informant and his wife.
P.W.-7, Ramu Mirdha, is an independent witness. He has stated that when he reached the place of occurrence, he had seen the informant lying in injured condition.
P.W.-8, Nikki Kumari, is the minor daughter of the informant. She has also supported the prosecution story, as has been disclosed in the F.I.R.
P.W.-9, Uma Shankar Sah, is the formal witness. He had gone to the hospital to see the injured informant.
P.W.-10, Manoj Kumar Sah, is the witness of Inquest report (Ext.-3) and he has proved his signature on the Inquest report.
P.W.-11, Dr. R. P. Verma, is the doctor who had conducted the post-mortem of the dead body of the deceased. He has opined that the death of the deceased was caused byinjury, which has been caused by spade.
P.W.-12, Ashwani Kumar, is the Investigating Officer of the case. In cross-examination, he has stated that the family members of the deceased told him that the condition of the deceased was good till the evening on the day of occurrence and doctor has discharged him.
P.W.-13, Dr. Shyam Lal Murmu, is also the doctor, who has examined the injured, Sudama Devi and Sanjay Kumar Sah and has found the injury simple in nature. He has found cut wound on the person of the informant, but not sharp cut injury.
He has also examined the appellant, Janardan Kapri and found four abrasion injury on his person. The injury was found to be simple in nature.
The trial Court, after evaluating the evidence and material available on record, has convicted the appellants under Section 304(II) IPC by the impugned judgment.
It has been submitted by the learned counsel for the appellants that :-
(i) although the appellants have been charged under Section 34 IPC, but in conviction, that part is missing.
(ii) there is a single injury upon the deceased, as per the doctor, which has been caused by the edge of a spade thus, neither there is premeditation nor there is repetition of blow nor any lethal weapon has been brought at the place of occurrence, rather both the parties were in the fields and the instrument available there has been used in the sudden fight between the parties.
(iii) the trial court has also found that there was scuffle between the parties and it has not been decided that who was the aggressor.
(iv) the death of the deceased was after five days of the date of the incident.
(v) the injury sustained by the appellant No.1 has not been explained by the prosecution.
(vi) the appellants have remained in custody for more than three years and seven months and the incident is of the year 2000 and further, the dispute is regarding grazing of crop by she-goat and as such there is no criminal intent rather it is an unfortunate incident and they have suffered a lot by remaining in custody and facing the litigation for such a long matter.
On the above grounds, learned counsel for the appellants has submitted that the sentencing part may be reduced to the period already undergone by the appellants.
On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence. It has been submitted that there is enough materials against these appellants and further, the death has been triggered by the injury caused by the appellant No.2.
It has further been submitted that no mitigating circumstances have been brought on record suggesting the reduction of sentence.
Having heard learned counsel for the parties and from perusal of the record, it appears that as per the prosecution story, there was a sudden scuffle between the parties. The injury has been sustained by both the parties and this fact has been brought on record by the documentary evidence as well oral testimony. Death is also there.
In that view of the matter, the conviction of the appellants under Section 304(II) IPC does not require any interference and accordingly, it is, hereby, upheld.
So far as sentencing part is concerned, admittedly there was a scuffle between the parties, there is no repetition of blow and neither any weapon has been brought nor any premeditation is there.
In that view of the matter, the sentencing part is, hereby, reduced to the period already undergone by the appellants.
With the above modification in the judgment of conviction, the present appeal stands allowed in part.
The appellants are on bail, hence, they are discharged from the liability of bail bond.
Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.