Prathvi Pal Khakha vs The State Of Jharkhand & Anr.

I have already heard the arguments of Mr. Aditya Banerjee, learned counsel for the appellant and Mr. Pankaj Kumar, learned P.P. for the State as well as Ms. Sharda Kumari, learned counsel for the respondent No.2.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 30.05.2005 and 01.06.2005 respectively, passed by learned Additional Sessions Judge, (F.T.C.), Latehar in Sessions Case No. 124 of 2004, whereby and whereunder the appellant has been held guilty for the offences under Sections 304 part-II & 201/120B of the I.P.C. and sentenced to undergo R.I. for 3 years along with fine of Rs.1000/- for the offence under Section 201/120B of the I.P.C. with default stipulation and R.I. for 8 years along with fine of Rs.5000/- for the offence under Section 304 part-II of the I.P.C. with default stipulation. Both the sentences were directed to run concurrently.

Factual matrix giving rise to this appeal is that on 11.04.2004 at about 09:00 O’clock evening, present appellant came to the house of informant and asked her husband as to why he helps his enemy. Upon refusal by her husband from extending any help to the enemy of the appellant, the accused caught hold neck of the informant’s husband and started throttling. It is alleged that the informant went for rescue of her husband then she was also threatened and the accused gave 3-4 kicks on testicles of her husband as a result her husband became senseless and then accused fled away. The informant called her relatives and village doctor, who advised to take her husband some higher medical centre for treatment. In the meantime, her husband regained consciousness and finding him well, the informant did not go to any other hospital, but the condition of her husband started deteriorating then she told her brother-in-law, who brought him at Kuru for treatment giving information to village Chowkidar, Ganesh Yadav. Ultimately, on reference of the doctors, she brought her husband to Sewa Sadan, Ranchi, where he died in course of treatment. The informant was waiting for village Chowkidar, but he did not come till the next day. In the meantime, the above named accused came along with his 8-10 unknown associates and forcibly took away the dead body of her husband and buried the same in the forest area extending threatening of death to the informant when she would lodge any case and her house will be blasted. It is further alleged that on advice of other family members taking the risk of life, the informant went to police station and lodge this case.

On the basis of above information, Chandwa P.S. Case No. 39 of 2004 dated 22.05.2004 was registered for the offences under Sections 302 & 201 of the I.P.C. against the accused.

After completion of investigation, charge-sheet was submitted against the accused. The case was committed to the Court of Sessions, where Sessions Case No. 124 of 2004 was registered. The accused denied from the charges leveled against him and claimed to be tried.

In the course of trial, altogether 7 witnesses were examined by prosecution:-

Apart from oral testimony of witnesses following documentary evidence have also been adduced by the prosecution.

On the other hand, the case of defence is denial from occurrence and false implication due to previous enmity and plea of innocence.

However, no oral or documentary evidence has been adduced by defence.

The learned Trial Court after considering the evidence of prosecution arrived at definite conclusion about guilt of the present appellant for the offences charged against him and convicted and sentenced him as stated above, which has been assailed in this appeal.

Assailing the impugned judgment, the learned counsel for the appellant has vehemently argued that the learned Trial Court has committed serious error of law while appreciating the evidence available on record. The informant herself is not an eye-witness of the occurrence rather she admits that when she came out from her house, she saw her husband was lying under unconscious state outside the house, but she has projected herself to be eye-witness of the occurrence. No other witnesses have seen the occurrence rather it has come in the evidence of P.W.-6 Nilson Ekka, who is none else, but son of the deceased, aged about 13 years that about 30 minutes to one hour verbal exchange of abusive words took place between his father and the accused. He was sleeping at the time and when he woke up then he saw his father was lying unconscious. In his cross-examination, he has further admitted that no fight took place between his father and the accused rather his Mausa who was under inimical terms with the accused, has lodged this false case. No previous enmity is also admitted in between the appellant and the deceased, therefore, there was no motive for assaulting the deceased. It is further submitted that there is simple allegation of causing 3-4 kicks on testicles of deceased and no other injury has been caused, therefore, the offence does not fall under Section 304 part-II of the I.P.C. The conviction of the appellant for the offence under Section 201/120B of the I.P.C. is also not proved by any cogent and reliable evidence nor there is any legal evidence that the dead body of deceased was recovered at the instance of present appellant. Therefore, conviction and sentence of the appellant is liable to be set aside and the appellant deserves to be acquitted from the charges leveled against him.

On the other hand, learned P.P. as well as learned counsel for the respondent No.2 have vehemently opposed the aforesaid contentions raised on behalf of the appellant and submitted that the learned Trial Court has very wisely and aptly taken into consideration the overall evidence available on record. It is proved by the prosecution beyond reasonable doubt that the appellant has assaulted to the deceased on very vital organ of the body like testicle and struck 4-5 kicks, which led to his death during treatment at Sewa Sadan Hospital. The Investigating Officer has also proved that he went to Sewa Sadan Hospital, during course of investigation and collected information that the deceased died due to cardiorespiratory failure, on account of above injury. Admittedly, there was no previous dispute or enmity between the deceased and the appellant and there was no motive for false implication. The very genesis of occurrence lies in helping the enemies of appellant by the deceased, there was enmity between the appellant and one Sushil Kumar. It is also proved that the dead body of the deceased was forcibly brought from the hospital and buried without post mortem examination. Therefore, the prosecution has proved its case beyond all reasonable doubt against the appellant and there is no legal substance in the points of arguments raised on behalf of the appellant and no merits in this appeal, which is fit to be dismissed.

I have gone through the record of the case along with the impugned judgment in the light of contentions raised on behalf of both side.

The only point for determination in this appeal is “as to whether the impugned judgment and order of conviction and sentence of the appellant suffers from any serious error of law calling for any interference in this appeal?”

Before adverting to imparting my verdict on above point, it is desirable to take brief resume of ocular testimony of witnesses examined in this case.

P.W.-2-Karma Ekka is the younger brother of deceased, who has been declared hostile by the prosecution and not supported the prosecution case, expressing no knowledge about the occurrence.

P.W.-3-Ganga Ekka has also expressed no knowledge about the occurrence, who happens to be neighbour and sister-in-law of the deceased in village relationship.

P.W.-4-Budhani @ Budh Mani Ekka is the wife of P.W.-2, has also been declared hostile by the prosecution and expressed no knowledge about the occurrence.

P.W.-5-Anjlina Kumari Ekka is eight years tendered girl and happens to be daughter of the deceased, studying in standard Class-III. Although, she could not properly narrate about the manner of occurrence rather clearly states that her father was assaulted by the appellant on his stomach, who was admitted to Ranchi Hospital, but died in the course of treatment.

P.W.-6-Nilson Ekka, aged about 13 years, is the son of the deceased. According to his evidence, on the date of occurrence in the night at about 09:00 P.M., accused Prathvi Pal Khakha, came to his house and assaulted his father by legs and fists. His father died during course of treatment at Ranchi.

In his cross-examination also he has stated that the occurrence took place about half an hour, he was sleeping but hearing hulla he woke up and saw the occurrence along with his sister (P.W.-5). His neighbours and other villagers, uncle and aunty were also assembled and saw the occurrence. He has further admitted that the dead body of his father was lying in his house for two days and when villagers assembled, the dead body was buried without any scuffle and resistance. He also admits that the case was lodged by his Mausa and there was no previous dispute between the accused and his father. He further admits that accused Prathvi has been involved in this false case by his Mausa. It appears that this witness has dismantled his evidence as stated in examination-in-chief, but the learned Trial Court and the learned P.P. for the State have not tried to re-examine the witness on the point of material discrepancies appearing in his cross-examination.

P.W.-7-Malti Devi is the informant of this case. She has consistently proved her fardbeyan and deposed that on the date of occurrence, in the night at about 09:00 P.M., the present appellant came to her house and asked her husband as to why he talks with his enemy, when her husband declined then the accused started assaulting by legs and fists on testicles of her husband due to which her husband became unconscious and fell down. Her daughter, Anjlina started weeping later on her brother-in-law brought a village doctor and after primary treatment, her husband regained consciousness, but due to deterioration of his health, he was brought to Sewa Sadan Hospital, Ranchi, where he died. She brought dead body of her husband in the village then Prathvi Pal Khakha again came to her home and started threatening and directed for burial of the dead body otherwise be prepared for facing dire consequence. She has further deposed that due to fear she did not lodge any case for one month thereafter, her brother-in-law Bikai scribed her written report on her dictation and after putting her thumb impression, she lodged this case. She has also proved the writing and signature of her brother-in-law on the written report marked as Exhibit-2 and also identified the accused present in the court.

In her cross-examination, she admits that there was no inimical terms between her husband and the accused, rather her co-villager Sushil was under inimical terms with the accused Prathvi Pal Khakha, which was being protested by her husband and that was the main reason for this occurrence. She has further admitted that at first the scuffle took place thereafter assault began. She also admits that her husband as well as the accused was under intoxication of liquor. She also admits that about half an hour verbal scuffle took place between her husband and the accused, thereafter, she came out and saw her husband was lying unconscious. She informed to her brother-in-law, who brought the village doctor and on next day her husband was brought to Kudu Hospital and thereafter, to Sewa Sadan Hospital. She has not informed at the Police Station, Kudu or Mandar or at Sewa Sadan at the time of treatment of her husband. She has further reiterated that due to threatening of life extended to her by the accused, she did not lodge F.I.R. at police station till one month. She has denied the suggestion of defence that she has lodged this false case at the instance of her brother-in-law. She has also denied any enmity between her brother-in-law and the accused Prathvi Pal Khakha.

P.W.-1-Kailash Thakur is the I.O. of this case. This witness assumed the charge of investigation of this case from the then Officer-in-charge of Chandwa, Police Station. He visited the place of occurrence and inspected the same. The place of occurrence of this case is situated in village Rud Hadgada at kutchcha house of the informant. In the course of investigation, he recorded re-statement of the informant and interrogated with other witnesses. He has proved the formal F.I.R. in the handwriting of S.I., Amod Narayan Singh marked as Exhibit-1, endorsement on written report marked as Exhibit-1/1. He also visited to Sewa Sadan Hospital, Ranchi and met with Medical Officer posted at Mandar and some documents of the hospital was also submitted before him by the informant wherein it was opined that the deceased has died due to cardiorespiratory failure. He has further proved that in the course of investigation, a report was submitted by Officer-in-charge of Chandwa, Police Station as mentioned in para 34 of the Case Diary stating therein that the dead body of the deceased has been buried by the accused since long ago hence, post mortem of the dead body was not conducted. He has proved the said report marked as Exhibit-1/2. After finding sufficient evidence, he submitted charge-sheet against the accused for the offence under Sections 302 & 201/120 of the I.P.C.

In his cross-examination, this witness admits that he has not investigated about village doctor, who first treated the deceased. In the Exhibit-1/2, the name of doctor, who treated the deceased, has not been mentioned. He along with Officer-in-charge went to the burial place of the deceased, which has not been mentioned in the Case Diary. He has denied the suggestion of defence that his investigation is defective and he has submitted charge-sheet against the accused without any evidence.

P.W.-6 was admittedly sleeping at the time of occurrence and not aware about the incident, therefore, his testimony being a child witness may be ignored. So far testimony of P.W.-7 is concerned, she has firmly and consistently proved the allegations against the appellant, there is nothing in her cross-examination to disbelieve or doubt on her veracity. The defence has also not brought any material showing any enmity with the deceased furnishing motive for false implication. Admittedly, the appellant has assaulted the deceased on his testicles by kicking and by fisting, therefore, his conviction for the offence under Section 304 part-II of the I.P.C. is absolutely justified under law, which resulted in his death. So far charge under Section 201/120B of the I.P.C. is concerned, it appears that neither the informant nor any other witnesses have been able to prove that after death of the deceased, the accused along with some other unknown persons threatened the informant and forcibly buried the dead body. It is also admitted by the informant herself that after coming from hospital, dead body was lying in the house for two days, thereafter, it was buried in presence of villagers. Therefore, the charge under Section 201/120B of the I.P.C. appears to have not been proved by cogent and reliable evidence by the prosecution.

The learned Trial Court has not considered the evidence in this regard adduced by the prosecution, therefore, conviction and sentence of the appellant for the offence under Section 201/120B of the I.P.C. is liable to be set aside.

In view of above discussion and reasons, the conviction of the appellant for the offence under Section 304 part-II of the I.P.C. is hereby confirmed and upheld. However, the conviction and sentence for the offence under Section 201/120B of the I.P.C. is herby set aside. Accordingly, this appeal is partly allowed.

The appellant is on bail, his bail bond is cancelled and he is directed to surrender before the concerned Trial Court within two months from the date of this judgment to sustain the remaining period of sentence awarded to him, failing which, learned Trial Court shall take all coercive steps for arrest and detention of the appellant for serving the remaining period of sentence awarded to him.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.