Indra Deo Yadav vs The State of Jharkhand

Pradeep Kumar, J.—Both appeals are directed against the judgment of conviction and order of sentence, dated 14th November, 2002, passed by Shri Nalin Kumar, District and Sessions Judge. Fast Track Court III, Garhwa in Sessions Trial Case No. 379 of 1994, by which judgment, he convicted three Appellants. Appellant No. 1, namely, Indra Deo Yadav RI for five years and Appellants No. 2 and 3, namely, Anand Deo Yadav and Bandhu Yadav for RI three years.

It is submitted by the learned Counsel for the Appellants that it will appear from the evidences that there is no nexus between the assault which is alleged to have taken place on 18th May, 1994 when the informant and other witnesses went to the house of the Appellant Indra Dev Yadav and his death on 22th May, 1994. Moreover the delay of four days in lodging the FIR has not been properly explained.

In that view of the matter the conviction of the Appellant u/s 304 Part (II) is also bad in law and fit to be set aside and on the other hand learned Counsel for the State has opposed the prayer and submitted that it will appear from the medical evidence that due to the injuries caused on 18th May, 1994, the deceased died due to the assault and hence, the same is the immediate result of the assault and delay has been explained by the informant in his FIR itself.

After hearing learned Counsel for the parties and going through the record it appears that prosecution case started on the basis of Fardbean given by the informant, P.W.-2 (Dhani Dubey) on 22th May, 1994 stating therein that on 18th May, 1994. his brother-Harendra Dubey had gone to the market for purchasing various articles for Tilak Ceremony of younger brother-Fulendra Dubey to Bhawanathpur market itself. After purchasing one quinttal of rice he gave the same to the accused Indra Dev Yadav and also gave Rs. 40/- as fare of his bullock-cart for taking the rice to his house and he stayed there for purchasing other articles. When his brother Harendra Dubey returned in the night and inquired about the rice then it was stated by his family members that no rice has come. Then he along with his brother Singari Ram and Ramjanam Bhuiyan went to the house of Indra Dev Yadav and inquired about the rice and asked him as to why he has not delivered the rice, to which the Appellant stated that "what he will do if he will not give rice" and there was some argument and thereafter accused-Indra Dev Yadav went inside and came back with his two brothers namely, Anand Deo and the other accused Prabhu @ Bandhu Yadav armed with lathi and started assaulting Harendra Dubey with lathi. When the informant and other wanted to save their brothers, they were also assaulted. Harendra Dubey was thrown on the field and all the three brothers one by one assaulted him on the stomach by their respective legs. He became unconscious and subsequently brought to the house. As there was Tilak Ceremony on the very next day of his brother i.e. on 19th May, 1994, they got busy at the home itself. On 20th May, 1994 he complained acute pain in his stomach. On 21th May, 1994, while he was being carried to Hospital at Garhwa, he expired, on the way.

On the basis of the said Fardbean, the Police; registered a case u/s 304 Part (II) and Section 34 of the Indian Penal Code and after investigation submitted charge-sheet in the aforesaid section. Since, the case is exclusively triable by the court of Sessions, learned S.D.J.M. Committed the case to the court of Sessions subsequently, after framing of charge by the 6th Sessions Judge, Palamau, the case was finally disposed of, by the Additional Sessions Judge-cum-Fast Track Court III, found guilty as aforesaid.

It appears that in course of the trial, prosecution has examined as many as 8 witnesses. P.W. 1, Dr. Ajay Kumar jha has proved the postmortem report as Exhibit-1. P.W. 2 is the informant Dhani Dubey. P.W. 3 is Singari Ram, who is an independent witness. P.W. 4 -Fulendra Kumar Dubey is brother of the deceased and nothing has been asked. P.W. 5 is Ramjanam Bhuiyan another independent witness. P.W.6-Lalan Vishawakarma and P.W.7-Banarasi Vishawakarms are witnesses of inquest. P.W.8-Alamuddin Khan has proved the formal FIR.

It is important to note that I.O. has not been examined in this case. As the prosecution case has beer proved by the following evidences. Doctor, namely, Ajay Kumar Jha and he found several injuries. All the injuries were caused by hard and blunt substance i.e. lathi. On dissection of the abdomen he found it full of pail yellow fluid with regard to the cause of death, he could not give any opinion but says that the same could be due to peritonites. He explains peritonites as the inflammation of peritonium (covering of abdominal organ). The doctor opines that the same may be caused by brusting of organs, chemical or physical origin caused due to physical assaulted.

The other witnesses, informant P.W. 2 stated in Court that on the date of occurrence i.e. 18th May, 1994, stating therein that his brother-Harendra Dubey had gone to the market for purchasing various articles for Tilak Ceremony of younger brother Fulendra Dubey to Bhawanathpur market itself. After purchasing one quinttal of rice he gave to same to the accused Indra Dev Yadav When his brother Harendra Dubey returned in the night and inquired about the rice then it was stated by his family members that no rice has come. Then he along with his brother Singari Ram and Ramjanam Bhuiyan went to the house of Indra Dev Yadav and inquired about the rice and asked him as to why he has not delivered the rice to which the Appellant stated that "what he will do if he will not give rice" and thereafter a verbal altercation took place when he went to inside the nouse and came out with two brothers namely Anand Mahto and Kamlu Mahto and all the three started assaulting Harendra Dubey with lathi and through legs of his stomach when they wanted to save they were also assaulted and then villagers intervened, they left Harendra Dubey. Harendra Dubey became unconscious then brought to their house. Since Tilak ceremony was to take place in the next day of morning they did not go outside and got him treated at home. In the next day when he was being brought to Hospital he died. He proved his signature in the FIR which has been marked as exhibit. He also admitted in the cross-examination that the occurrence took place on 18th May, 1994. PW.3-Singari Ram has also corroborated the case of the informant and stated that on the date of occurrence he had gone with the informant to the house of Indra Dev Yadav and on inquiry, rice given to him by the deceased, he refused to give rice back then a verbal altercation took place thereafter Indra Dev Yadav started assaulting Harendra Dubey with lathi along with his two brothers in their stomach. Since there was Tilak ceremony in. the house he was not taken to the hospital and he was kept in the house aid treated there. When he was being taken to hospital, he died.

He stated in his cross-examination that from a distance of ten legs he had seen Indra Dev assaulting the deceased by lathi and being intervened, he was also assaulted He had seen mark of injuries in the body of Harendra Dubey. P.W 5 Ramjanam Bhuiyan also supported assault being made by the accused in the body of the deceased.

Thus, it appears that although it is apparent that on the date of occurrence the deceased was not taken to the hospital for treatment although he was unconscious when the assault was made by the three accused persons and the deceased died without proper treatment. After the death, this FIR has been lodged, but the explanation given by the prosecution is that due to Tilak ceremony the deceased was kept in the house and since the death has occurred due to ''peritonites'' caused by the assault made on the date of occurrence hence, it is clear that he died due to the assault, but since there was no direct intention to commit murder the court has hightly convicted the accused u/s 304 Part II and 34 of the Indian Penal Code.

I find nothing to disturb the findings as given by the trial Court and the conviction is accordingly, affirmed

However, since there is no allegation of direct assault against these two Appellants, namely, Prabhu @ Bandhu Yadav and Anand Deo Yadav rather they were supporting the main accused Indra Deo Yadav The witnesses, P.W. 3 and P.W. 5 have stated that it was mainly Indra Dev Yadav who assaulted the deceased causing his death.

In that view of the matter, the sentence of three years awarded to two Appellants one Bandhu Yadav aged 55 years on the date of judgment and Anand Deo Yadav aged 60 years is altered to the period already undergone during trial which is to about 17 months. Since they are on bail they are released from the bondage of their bail bonds.

However, considering the facts and circumstance of the case, the sentence of the main accused Indra Deo Yadav is reduced to two years with rigorous imprisonment, considering the fact that he is aged about 60 years on the date of hearing and has undergone the rigour of trial and appeal, since 1994 till date. Since, he is on cell, his bail bond is also cancelled.

In that view of the matter the two appeals are dismissed, with the aforesaid alteration in their sentences.