Lal Muni Bhuiya vs State Of Jharkhand

The instant Criminal Jail Appeal has been preferred before this Court on 24.06.2004 against the judgment of conviction dated 20.01.2004 and order of sentence, dated 22.01.2004, passed by learned 4th Additional Sessions Judge, Fast Track Court, Garhwa, in Sessions Trial Case No. 39 of 1997. Mr. Nehru Mahto, Advocate was appointed as Amicus Curiae vide order dated 04.08.2004. The delay was condoned vide order dated 16.09.2004. The appeal was admitted vide order dated 28.10.2010 and the appellant was released on bail by suspending the sentence passed by the learned trial court. Subsequently vide order dated 10.10.2018, learned Amicus Curiae, Mr. Nehru Mahto appeared before this Court and submitted that he has been appointed as State counsel, as such he cannot appear on behalf of the appellant as per the new Rule, under the aforesaid background this Court thus, appointed Mrs. Shalini Kumari, Advocate as Amicus Curiae.

The learned trial court vide the impugned judgment of conviction and order of sentence has convicted the sole appellant for the offence committed and punishable under Section 304 Part I of the Indian Penal Code and awarded rigorous imprisonment for eight years. The period already undergone by the appellant during the trial shall be set off under Section 428 CrPC.

The prosecution case is based upon the written report submitted by Ram Nath Yadav (P.W. 1) before the Officer-in-Charge, Bhawanathpur Police Station on 16.10.1995 alleging therein that today i.e. on 16.10.1995 (Monday) at 11.30 A.M., (i) Hira Bhuiyan (ii) Lal Muni Bhuiyan (iii) Lala Bhuiyan (iv) Pragash Bhuiyan (v) Laka Korwa (vi) Lallu Korwa and (vii) Dharam Dev Korwa came to his house and after calling his mother as "Daain", started assaulting her. They were saying that his mother has done "black magic" upon Lalmuni Bhuiyan because of that, he has died. The informant has claimed that the occurrence has been witnessed by the neighbours, who will disclose about the same.

On the basis of the written report of the informant, police has instituted Bhawanathpur P.S. Case No. 58 of 1995 dated 18.05.1995, under Sections 304/ 143 of the Indian Penal Code against seven named accused persons namely Hira Bhuiyan, Lal Muni Bhuiyan, Lala Bhuiyan, Pragash Bhuiyan, Laka Korwa, Lallu Korwa and Dharam Dev Korwa.

After investigation, the police has submitted charge sheet vide charge sheet no. 63 of 1995, dated 30.11.1995, under Section 304 of the Indian Penal Code only against accused Lal Muni Bhuiyan, as the evidence against other co-accused persons named in the F.I.R. was not sufficient to sent up them for trial.

The cognizance of the offence has been taken vide order dated 01.02.1996 and the case has been committed to the Court of Sessions vide order dated 21. 01.1997.

The charge has been framed against the accused person under Section 304 of the Indian Penal Code vide order dated 18.11.1997, to which the accused person has pleaded his innocence and thus, he was put under trial.

The prosecution, to prove its case, has examined altogether seven witnesses. Ramnath Yadav, informant of the case, has been examined as P.W. 1, Basmatiya Devi, wife of the informant, has been examined as P.W. 2, Basanti Devi, daughter-in-law of the deceased has been examined as P.W. 3, Rajeshwar Yadav, an independent witness, has been examined as P.W. 4, Dr. Ram Ekbal Singh, Medical Officer, has been examined as P.W. 5, who has examined the injured Samundari Devi, Mukund Singh, Sub-Inspector of Police and Investigating Officer of the case, has been examined as P.W. 6, Dr. Jwala Prasad Singh, Medical Officer, who has conducted the post-mortem examination of the deceased, has been examined as P.W. 7.

The prosecution has also exhibited a number of documentary evidence upto Exhibit- 5. Injury report of the deceased Samundari Devi, has been proved and marked as Exhibit- 1, written information by Dr. Ram Ekbal Singh (P.W. 5) to the Officer-in-Charge Bhawanathpur Police Station has been proved and marked as Exhibit- 2, endorsement of the Officer-in-Charge on the written information by Dr. Ram Ekbal Singh (P.W. 5) has been proved and marked as Exhibit- 3, inquest report has been proved and marked as Exhibit- 4, post mortem report of the deceased has been proved and marked as Exhibit- 5 and sanha entry No. 272 dated 16.10.1995 has been marked as 'X' for identification.

After closure of the prosecution evidence, statement of the accused has been recorded under Section 313 Cr.P.C. on 18.09.2003 but no defence witness has been examined or document has been adduced by the defence.

After hearing the parties and on perusal of the records, the learned Trial Court has passed, the impugned judgment of conviction and order of sentence, holding the appellant guilty under Section 304 Part I of the Indian Penal Code.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal, assailing the same.

Heard, learned Amicus Curiae, Mrs. Shalini Kumari, Advocate. Learned Amicus Curiae has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that the occurrence took place on 16.10.1995 and the victim Samundari Devi, mother of the informant was examined by Dr. Ram Ekbal Singh (P.W. 5) on the same day and has proved the injury report of the victim Samundari Devi as Exhibit-1. As per the injury report, the victim has sustained four injuries caused by hard and blunt substance, which are as follows:

"(i) one lacerated wound 2 ½" x ¼" x ¼" on right palm.

(ii) Diffuse swelling of right buttock

(iii) complain of pain in abdomen

(iv) swelling of left buttock."

Learned Amicus Curiae has submitted that all the injuries were found to be simple in nature but only after death of the victim Samundari Devi on 16.10.1995 at 4.25 P.M., an information was given to the police at 4.50 P.M. and on the basis of the same, the F.I.R. has been instituted. Learned Amicus Curiae has submitted that from perusal of the First Information Report, altogether seven named accused persons were made accused but the police has disbelieved major part of the prosecution case by only submitting chargeheet against the present appellant Lal Muni Singh under Section 304 of the Indian Penal Code. Learned Amicus Curiae has further submitted that from perusal of injury report, which has been proved and marked as Exhibit- 1, no case under Section 304 Part- I of the Indian Penal Code is made out, as intention of causing death is completely lacking in the present case, as none of the injuries mentioned in the Exhibit- 1 are on vital parts of the body nor those have been attributed to any lethal weapon. Under the aforesaid circumstances, learned amicus curiae has submitted that the appellant cannot be convicted under Section 304 Part I of the Indian Penal Code.

Heard, learned counsel for the State, Mr. Sudhir Kumar Roy, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record. Learned counsel for the State has submitted that the informant Ramnath Yadav has been examined as P.W. 1, wife of the informant Basmatiya Devi has been examined as P.W. 2, Basanti Devi, daughter-in-law of the deceased has been examined as P.W. 3, Rajeshwar Yadav, an independent witness has been examined as P.W. 4 and all have supported the prosecution case with specific allegation of assault against the appellant Lal Muni Bhuiyan. Dr. Ram Ekbal Singh (P.W. 5) has found corresponding injuries caused by hard and blunt substance, upon the victim Samundari Devi. Mukund Singh (P.W. 6), Sub-Inspector of Police has supported the case by proving the station diary entry, which has been marked as 'X' for identification. This witness has categorically admitted that he has not investigated the case. Dr. Jwala Prasad Singh, Medical Officer, who has conducted the post-mortem of the deceased Samudri Devi has been examined as P.W. 7 and has proved the post-mortem report in his hand-writing and signature and the same has been marked as Exhibit- 5. The doctor (P.W. 7) has found altogether seven injuries which are as follows:

"(i) lacerated wound 3" x ½" on palmer aspect of right hand.

(ii) Bruise 6" x 1" on right side back chest

(iii) Bruise 2" x 1" on antero lateral side of right side of abdomen

(iv) Abrasion 1" x ½" lateral side of dorsum of right foot

(v) Abrasion ½" x ½" lateral side of left knee

(vi) Abrasion ½" x ½" lateral side of left ankle

(vii) Diffuse swelling of right thigh with hip anterior aspect.

Doctor has opined that death has been caused due to shock and haemorrhage mainly due to injury no. Vii."

Learned State counsel has thus, submitted that the learned trial court has rightly convicted the appellant under Section 304 Part I of the Indian Penal Code, as such, the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court.

Heard, learned Amicus Curiae, Mrs. Shalini Kumari, Advocate and learned counsel for the State, Mr. Sudhir Kumar Roy, Additional Public Prosecutor and perused the evidence brought on record including the F.I.R., framing of charge, evidence of seven prosecution witnesses, five prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C., and the impugned judgment of conviction and order of sentence. This Court has minutely scrutinised the evidence brought on record. From perusal of the evidence, it appears that Exhibit- 1 is in consonance with Exhibit- 5, i.e. injury report is in consonance with the post-mortem report but other injuries which have been mentioned in the post-mortem report has not been mentioned in Exhibit- 1 i.e. injury report of injured Samundari Devi. This Court has also found that the Investigating Officer of the case has not been examined, though, no prejudice has been caused to the appellant as the appellant has not suggested any of the prosecution witnesses that non-examination of the Investigating Officer has caused serious prejudice to him. From the materials brought on record, it appears that Ramnath Yadav (P.W. 1) has categorically stated that accused Lal Muni Bhuiyan along with others have assaulted his mother by means of lathi causing injuries. Basmatiya Devi (P.W. 2) wife of the informant, has also supported the prosecution case. Basanti Devi (P.W. 3) daughter-in-law of the deceased has also supported the prosecution case to the effect that Lal Muni Bhuiya had assaulted her mother-in-law by means of muthha of lathi on her stomach. Rajeshwar Yadav (P.W. 4) has also supported the prosecution case to the effect that Lal Muni Bhuiya and others have assaulted the victim and the corresponding injuries have been found by P.W. 5, Doctor Ram Ekbal Singh and P.W. 7, Dr. Jwala Prasad Singh.

Under the aforesaid circumstances, the accused has rightly been held guilty by the learned trial court but so far the intention of the accused is concerned, there is no evidence that the accused has intention of causing death as required for conviction under Section 304 Part- I of the Indian Penal Code, as such, the accused/appellant is hereby convicted under Section 304 Part-II of the Indian Penal Code instead of Section 304 Part- I of the Indian Penal Code and so far sentence of accused/appellant is concerned, the period already undergone by the appellant is sufficient.

In the result, impugned judgment of conviction dated 20.01.2004 and order of sentence, dated 22.01.2004, passed by learned 4th Additional Sessions Judge, Fast Track Court, Garhwa, in Sessions Case No. 39 of 1997, arising out of Bhawanathpur P.S. Case No. 58 of 1995, corresponding to G. R. No. 614 of 1995, is hereby modified from conviction under Section 304 Part- I to Section 304 Part- II of the Indian Penal Code with modification in sentence as period already undergone.

The appellant, who is on bail, his bail bond is cancelled but he shall not be taken into custody as he has already received the sentence as period undergone.

Accordingly, the present criminal appeal is dismissed with modification in conviction and sentence.

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.

Before parting with the judgment, this Court appreciates the assistance provided by Mrs. Shalini Kumari, learned Amicus Curiae, in disposal of this criminal appeal.

The Secretary, Jharkhand State Legal Services Authority is directed to release the legal admissible remuneration to the learned Amicus Curiae, Mrs. Shalini Kumari, Advocate of this Court within a period of four weeks from the date of filing of an application by her along with a certified copy of this judgment.