Brahmdeo Yadav Appellant Versus The State of Jharkhand... Respondent

Transcription

1 By Court: 1 Cr. Appeal (D.B.) No of 2004 [Against the judgment of conviction and order of sentence dated passed by Shri Nalin Kumar, learned Additional Sessions Judge, (F.T.C. V), Deoghar in Sessions Case No. 86 of 2004] Brahmdeo Yadav Appellant Versus The State of Jharkhand... Respondent PRESENT HON'BLE MR. JUSTICE PRADIP KUMAR MOHANTY HON'BLE MR. JUSTICE ANANT BIJAY SINGH For the Appellant : Mr. Arvind Kumar Choudhary, Advocate Mr. Shambhu Nath Tiwari, Advocate For the State : Mr. Pankaj Kumar, A.P.P This criminal appeal is directed against the judgment of conviction and order of sentence dated passed by Shri Nalin Kumar, learned Additional Sessions Judge, (F.T.C V), Deoghar in Sessions Case No. 86/2004 whereby, the appellant having been found guilty of charges under Section 302 I.P.C, has been sentenced to undergo imprisonment for life besides a fine of Rs.5,000/ and in default thereof, to undergo further imprisonment for six months. 2. The case of the prosecution, in brief, is that on while the informant Lilu Yadav was lying on a cot in the verandah of his courtyard of village home and his son Aklu Yadav was lying on another cot in the courtyard, at about 7 P.M. the appellant Brahmdeo Yadav, son in law of his son Aklu Yadav, armed with Bhujali directly entered into the courtyard and started assaulting his son Aklu Yadav. Aklu Yadav raised hulla upon which his daughter in law and grand daughter rushed to save him, but the appellant threw Bhujali in the courtyard and fled away. He saw that his son Aklu Yadav had

2 2 received bleeding injuries on his right arm and armpit from which a lot of blood was oozing out. He and his family members raised hulla upon which co villagers assembled and somehow the injured was taken to Debipur and from there on a trekker to Shankarpur Station and while he was brought from Shankarpur to Deoghar Hospital, in the way, the injured succumbed to the injuries. After examining the injured at Sadar hospital, Deoghar, the doctor declared him dead. 3. After investigation charge sheet was submitted against the appellant. In order to prove the case, the prosecution has examined as many as fourteen witnesses including the I.O and exhibited the documents including the F.I.R and postmortem report. 4. On the basis of the fardbeyan of the informant, Madhupur P.S. Case No. 219 of 2002 was registered for the offence under Section 302 of the Indian Penal Code against the accused Brahmdeo Yadav and after completion of investigation, charge sheet was submitted against the accused. 5. In order to prove the charge against the accused, the prosecution has examined altogether 14 witnesses and the Trial Court after going through the materials on record and also considering the evidence of the prosecution witnesses has found the charge levelled against the accused to be proved and thereafter sentenced him to undergo, as aforesaid. 6. Basing upon the evidence of the eye witnesses of the occurrence, the learned counsel for the appellant has assailed the judgment of learned Court below on the ground that the case is not coming under the purview of Section 302 I.PC. At best the case

3 3 comes under the purview of Section 304 Part I I.P.C. It has been submitted that the appellant had no intention to kill the deceased. All the injuries were not on the vital part of the body therefore, the conviction of the appellant cannot sustain. 7. On the other hand, learned Additional Public Prosecutor has vehemently opposed the contentions raised by learned counsel for the appellant and submits that the appellant assaulted the deceased with deadly weapon causing four incised wounds on his person. Hence, no illegality has been committed by the Trial Court in convicting the appellant under Section 302 of the Indian Penal Code. 8. We have heard learned counsel for both the sides and also perused the materials available on record. The accused appellant was also examined under Section 313 Cr.P.C to which he pleaded not guilty and claimed to be tried. 9. P.W.1 Gulbi Devi is the wife of the deceased. She has stated that while her husband was sleeping on a cot in the courtyard, the appellant arrived in the courtyard and started assaulting her husband with Bhujali. Her husband received injuries above the right hand near the ear and in the armpit. She and her husband rushed to catch hold the appellant, but they failed and the appellant fled away. 10. P.W.2 Babita Devi is the daughter of the deceased and she has fully supported the evidence of P.W P.W.3 Nand Lal Chauhan has stated that upon hulla coming out from the house of Aklu Yadav, raised by Lilu Yadav and also the groaning of Aklu Yadav, he went inside the house of Aklu Yadav and saw Aklu Yadav seriously injured having injuries on his right hand

4 4 and armpit. 12. P.W.4 Raghu Mahto has stated that he arrived at the house of Aklu Mahto after hearing hulla raised by Lilu Mahto and found Aklu Mahto injured in his house. 13. P.W.5 Jitan Kisku has also supported the prosecution vesion in the same manner as P.W.3 and P.W P.W.6 Navin Chauhan has also supported the prosecution story in the same manner as P.Ws. 3, 4, 5 & 6. He had helped the deceased to be brought to Deoghar for treatment. 15. P.W.7 Shailendra Kumar Sinha is the technician of the Forensic Science Laboratory, Ranchi who had produced the seized articles namely, blood stained Bhujali, string and soil. The material exhibits have been marked as Exts. I & I/ P.W. 8 Dilip Kumar Yadav is the son of the deceased. He has stated that while he was returning from Dashhara Mela along with his brother, he met accused Brahmdeo Yadav who was running away. He asked from Brahmdeo Yadav why he is running away, he told him that he is coming after killing his father from his house and if he dares to talk more, he will also be killed. 17. P.W.9 Kawita Devi is the wife of the accused and daughter of the deceased, who in her examination in chief admits that she was married to accused Brahamdeo Yadav five years back. Since sufficient dowry was not provided, she was being tortured and assaulted by her husband. 18. P.W.10 Dr. A. K. Chatterjee had conducted the post mortem examination on the dead body of the deceased Aklu Yadav and had

5 found the following ante mortem injuries: 5 (i) Two incised wounds on right arm from right shoulder to middle of the right arm 5 x2 into bone deep and underlying vessels were cut; (ii) Second one incised would on right arm medially 4 x2 into bone deep cutting the underlying vessels; (iii) One incised wound medially from the middle of the right arm to lateral or to the middle of occipital farsa 4 x2 bone deep. In his opinion, the death was caused due to haemorrhage and shock as a result of the above injuries caused by a sharp cutting weapon such as 'Daw' which is fatal. He prepared the post mortem report in his pen and signature, which is marked as Ext.4. In his cross examination, he admits that arms and shoulder are not the vital parts of the body. 19. P.W.11 Arjun Yadav is the brother in law (sala) of the deceased, who in his examination in chief has stated that while he was returning to the house of his brother in law (deceased) after attending the call of nature, Aklu Yadav and Lilu Yadav were crying and screaming. Upon hearing noise, when he entered into the house of Aklu Yadav, he saw Aklu Yadav lying on a cot in wounded state in the courtyard. 20. P.W.12 Lilu Yadav is the informant himself. He has fully supported his own version as given in the fardbeyan and also admitted that his statement was recorded by the Sub inspector of Deoghar Police Station at Deoghar Hospital itself. 21. P.W.13 Bhuneshwar Yadav in his examination in chief has stated that he was in the house of Lilu Yadav in Malpahari. Daroga Babu of Madhupur Police Station came in the house of Lilu Yadav.

6 6 Daroga Babu had seized blood stained Bhujali, soil and string of cot from the courtyard of Lilu Yadav and its paper was prepared before him. Darogajee took signature of Raghu Yadav of Village Malpahari and him on that paper which are already marked as Exts. I & 1/ P.W.14. S. N. Singh Veer is the I.O of the case who after investigation submitted the charge sheet against the accused. In his examination in chief he has stated that on at A.M he received the fardbeyan of the informant Lilu Yadav recorded by Chandrashekhar Sinha, Sub inspector, Deoghar Town P.S and contained his signature marked as Ext. 5. He himself investigated the matter and reached at the P.O on the same day and recorded the statement of some of the witnesses. He had prepared the seizure list of the blood stained rope of the cot, soil and also the iron Bhujali with a wooden handle which were prepared by the ASI Sri Narayan Tiwari and also contains his signature, which is marked as Ext.6. He has identified the material exhibits produced in the Court. He recorded the statement of the informant on at Bhalpahri village and also the statements of certain witnesses. The seized material exhibits were sent to Forensic Science Laboratory, Ranchi after seeking permission from the S.D.J.M Madhupur and chargesheet was submitted showing the accused absconder under Section 302 I.PC. He has identified the carbon copy of the letter written by him and bearing his signature by which the material exhibits were sent to F.S.L, Ranchi which was prepared in the same process and has been marked as Ext. 7. In his cross examination, he states that he did not record the

7 7 name or number of the constable who brought the fardbeyan from Deoghar P.S. The F.S.L report could not be received till the time of the filing of the charge sheet. He did not prepare any sketch map of the place of occurrence. He did not take any photograph or the finger print on the seized Bhujali at the time of its seizure. 23. Learned counsel for the appellant has relied upon the decisions rendered in Kesar Singh & Anr. Vs. State of Haryana reported in 2008(3) East Cr. C. 205 (SC) and State of Punjab Vs. Tejinder Singh & Anr. reported in AIR 1995 SC 2466 wherein it has been held that the distinction between the terms 'knowledge' and 'intention' again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act. Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity. 24. In the instant case, all the witnesses have stated that while the deceased was sleeping on a cot, the appellant assaulted the deceased. The injuries were inflicted on the arms and shoulder and not on the vital parts of the body. Therefore, it is crystal clear that the appellant had no intention to kill the deceased. In view of the above, this Court is of the opinion that this case is not coming under Section 302 I.PC. This case comes under Section 304 Part I, I.P.C. It has been submitted that the appellant is languishing in custody for

8 8 more than 12 years. 25. In the facts and circumstances of the case, this appeal is allowed in part modifying the conviction under Section 304 (Part I) I.P.C. and sentence to rigorous imprisonment for ten years. This Court set off the detention of the accused appellant under Section 428 Cr.P.C. and directs the appellant to be released forthwith from custody if not required in any other case. This Court also directs the concerned Jail Superintendent to release 1/3 rd of his remuneration to the legal heirs of the deceased, which the convict has earned under Jharkhand Victim Welfare Fund Rule, (Pradip Kumar Mohanty, J) (Anant Bijay Singh, J) High Court of Jharkhand, Ranchi Dated Satish/Satyarthi/NAFR