Kamla Kant Dubey vs State of Jharkhand

Pradeep Kumar, J.—By Court- The appeal is directed against the judgment of conviction dated 24.8.2001 and order of sentence dated 25.8.2001 passed by Shri Ramanuj Narayan, 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 281/88 by which judgment the learned trial court convicted the sole appellant, Kamla Kant Dubey u/s 307 of the Indian Penal Code and sentenced him to undergo R.I. for ten years. He also found him guilty u/s 341 and sentenced him to undergo S.I. for one month and R.I. for one year u/s 323 of the Indian Penal Code.

The prosecution case was started on the basis of a fardbeyan lodged by the informant, Premnath Dubey ( P.W.4) on 15.10.86 at about 10.45 a.m. When he had gone to his Arhar filed then he saw the three accused persons, namely, Pradeep Kumar Dubey, Kamlakant Dubey and Ali Mian variously armed with Garasa in the hand of Pradeep Kumar Dubey; Balua in the hand of Kamlakant Dubey and Tangi in the hand of Ali Mian respectively and all of them surrounded him and started assaulting him with their respective weapons. It is stated that accused, Pradeep Kumar Dubey gave a Garasa blow on his hand cutting half of his littler finger, accused, Kamalakant Dubey gave a Balua blow on his stomach and accused Ali Mian gave a Tangi blow on left shoulder. It is also stated that he started bleeding and fell down. Then on his ''hullah'' witnesses, Bhuneshwar Dubey came to rescue Premnath Dubey whereupon the witness, Bhuneshwar Dubey ( P.W.3) also received injuries in his finger from the Garasa of Pradeep Kumar Dubey. Thereafter, all the accused persons ran away and the informant was brought to the police station and was sent to the hospital for treatment.

On the basis of the said fardbeyan the police registered a case under Sections 324, 326, 321, 307/34 of the Indian Penal Code and after investigation submitted charge-sheet against the accused persons, namely, Kamlakant Dubey and Pradeep Kumar Dubey. No chargesheet was submitted against accused, Ali Mian. Cognizance was taken against only two accused persons and both the accused persons were charged under Sections 324, 326, 341, 307/34 of the Indian Penal Code.

It appears that in course of trial the prosecution has examined six witnesses. P.W.1, Surajdev Singh, is a villager; P.W.2, Surendera Dubey, is also a villager, they were declared hostile; P.W.3, Bhuneshwar Dubey is the brother of the accused; P.W.4, Premnath Dubey is informant himself; P.W.5, Habib Mian was tendered for cross-examination and P.W.6 is Dr. Indeshwar Tiwary

After conclusion of the trial and after hearing both the parties the learned Sessions Judge convicted the appellant as aforesaid and sentenced him as aforesaid.

It is submitted by the learned Counsel for the appellant that the only witness who stated before the Court during trial that this accused, Kamlakant Dubey assaulted the informant on his stomach by Balua is none other than the informant himself ( P.W.4). All other witnesses have stated that the injured informant was assaulted and they saw him profusely bleeding and also they saw the three accused persons ran away from the place of occurrence with their respective weapons, so the prosecution has failed to prove by any corroborative evidence beyond all reasonable doubts that the fatal injuries on the stomach, which was grievous and dangerous to life was given by the appellant, Kamlakant Dubey. In that view of the matter, the conviction of the appellant is not sustainable u/s 307 of the Indian Penal Code and moreover the appellant, Kamlakant Dubey is own brother of the informant, Premnath Dubey as also of Bhuneshwar Dubey (P.W.3) and there might be a land dispute, but there was no intention to commit murder of his brother and hence the conviction u/s 307 of the Indian Penal Code is fit to be set aside.

On the other hand, learned Counsel for the State has opposed the same and submitted that there is a clear statement in the first information report as well as the statement given by the informant in the court when he was examined as P.W.4, that the grievous injury on the stomach, which was dangerous to life was caused by the appellant, Kamlakant Dubey.

After hearing both the parties and going through the evidences, I find that the prosecution has examined six witnesses, but except P.W.4, the informant, none of the witnesses have fully supported the case. P.Ws. 1 & 2 have been declared hostile and have not supported the prosecution case. It is important to note here that P.W.2 , Surendra Dubey is none else, but son of Bhuneshwar Dubey i.e the brother of the accused, Kamlakant Dubey. He has also not supported the prosecution case. He stated that on ''Hulla'' when he reached the place of occurrence then he found Premnath Dubey in injured condition. He saw little finger chopped and there was injury on his stomach also, but he saw nobody assaulting him and thereafter running away from the place of occurrence. P.W.3, Bhuneshwar Dubey has stated that on the date of occurrence he was in his house and at about 10-11 a.m. he heard ''Hullah''. He came out from his house then he saw Kamlakant Dubey who had got Balua in his hand and Pradeep Kumar Dubey had got Garasa in his hand and both the accused had assaulted the injured, Premnath Dubey. Premnath Dubey had injuries on his lower chest, littler finger of right hand and left shoulder. He stated that he also received some injuries from the Balua of Kamlakant Dubey, the appellant while he was running away.

In his cross-examination, he stated that Kamlakant Dubey is his cousin brother. He also stated in para 7 of his crossexamination, that he along with accused, Kamlakant Dubey and his wife have purchased the land in their joint name and they have partitioned the land verbally. He also admitted that there is a land dispute between Kamlakant Dubey and Premnath Dubey. Before the occurrence proceeding u/s 144 I.P.C was pending between them with regard to the land.

Therefore, the only witness who supported the prosecution case is informant himself. He stated that on the date of occurrence he was assaulted by the three accused persons and Kamlakant Dubey gave a Balua blow on his stomach, causing injury and his son Pradeep Kumar Dubey gave a Garasa blow cutting of his little finger. In para 2 he stated that Bhuneshwar Dubey came on Hullah and he tried to rescue him, then he was also assaulted by Kamlakant Dubey with Balua and other witnesses came later on then the accused persons ran away. In para 4, he admitted that he has got only one daughter and he had given his land to his daughter through ''Danpatra'', hence accused being aggrieved, committed this crime.

The next important witness, P.W.6, who is the doctor found the following injuries on the person of informant, which are as under:

(i) Sharp cut injury 2"x1/4"xmuscle deep on ulnar boarder of right hand;

(ii) Sharp cut slanting injury chopping off little finger right middle phalanx just above first inter phalangeal joint 1"x1/2" stump;

(iii) Sharp cut injury on the 2nd inter phalangeal joint of right ring finger 1/2"x1/8" into muscle deep;

(iv) Sharp cut 7"x1/8"x variable depth ( at place ribs were visible) on right lower chest and abdominal area;

(v) Sharp cut 1"x skin deep wound on left upper arm deltoid region lower part;

(vi) Sharp cut injury 3 1/2" x 1/8" x skin deep left deltoid region extending over to shoulder region.

The doctor has opined at para 4 that injury No. 4 was grievous in nature and was dangerous to life. 10. Thus, after going through the entire prosecution, it is clear that the serious injury No. 4 which was dangerous to life, was caused on the stomach just below the rib on the right lower chest in the abdominal area. Except the informant (P.W.4) none of the witnesses have stated that they saw the accused, Kamal Kant Dubey causing the said injury on the stomach. The Investigating Officer has also not been examined in this case. Several other witnesses stated before him as to whether grievous injury on the stomach was caused by the appellant, Kamal Kant Dubey or not? In absence of any corroborative evidence it is not safe to rely only on the statement of the informant (P.W.4), who had enmity with the accused, admittedly because accused, Kamal Kant Dubey was objecting the transfer of land by him. In that view of the matter, I find that the prosecution has failed to prove in absence of any corroborative evidence beyond all reasonable doubts that the fatal injury which could have caused the death of the informant ( P.W.4) on the stomach was caused by the appeallant, Kamal Kant Dubey. Admittedly, the three accused persons caused the injuries on the three parts of the body of the informant.

As discussed above, the appellant, Kamal Kant Dubey should get benefit of doubt as far as Section 307 of the Indian Penal Code is concerned. Accordingly, finding of convicting and sentence u/s 307 of the Indian Penal Code by the trial court is set aside. However, the conviction of the appellant under Sections 341 and 323 of the Indian Penal Code is sustained.

Accordingly, the appeal is allowed in part. The conviction and sentence passed u/s 307 of the Indian Penal Code is set aside. The appellant will serve only sentence of one year R.I. as awarded to him u/s 341 of the I.P.C. and also sentence of one month u/s 321 of the I.P.C. The sentences shall run concurrently as passed by the trial court. The period of sentence as already undergone will be adjusted.

The trial court is directed to issue warrant of arrest against the appellant for serving out the sentences and his bail bond is cancelled.