Jharkhand High Court
(Against The Judgment Of ... vs The State Of Jharkhand on 1 December, 2021
1
Cr. Appeal (SJ) No. 1813 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1813 of 2003
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(Against the judgment of conviction dated 22.11.2003 and order of
sentence dated 24.11.2003 passed by the learned Additional District
& Sessions Judge, (F.T.C.-6), Giridih in Sessions Trial No. 23 of
1989.)
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Huro Yadav ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. A.N. Deo, Advocate
For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 05 : Dated: 1st December, 2021
Navneet Kumar, J. This appeal is directed against the judgment of conviction dated
22.11.2003 and order of sentence dated 24.11.2003 passed by the learned
Additional District & Sessions Judge, Fast Track Court-6, Giridih in
Sessions Case No. 23 of 1989 whereby and whereunder the appellant Huro
Yadav has been convicted under section 304 part II of the IPC and
sentenced to undergo Rigorous Imprisonment for 6 years.
Prosecution Story
2. The prosecution story in brief is that on 25.08.1988 at 9 P.M., the
informant Dasrath Yadav P.W.10 was at his house with his family
members. The father of Dasrath Yadav, started abusing and on
hearing the noise, accused persons came to that place with lathi. It is
alleged that this appellant Huro Yadav assaulted Bhattu Yadav, by
lathi and caused injury on his head. It is further alleged that when the
informant Dasrath Yadav tried to save his father other accused
persons also came with lathi and assaulted Dasrath Yadav. It is
further alleged that due to the injury caused by lathi on the head,
Cr. Appeal (SJ) No. 1813 of 2003
Bhattu Yadav died after few days at Ranchi Hospital during the
course of treatment.
3. After investigation charge sheet was submitted against the
appellant Huro Yadav, Balo Yadav, Govind Yadav and Arjun Yadav
under sections 323, 307, 302/34 of the Indian Penal Code and the case
was committed to the Court of Session for trial.
4. That the learned trial court framed charge under sections
304/34 of IPC against the appellant Huro Yadav and others namely
Balo Yadav Govind Yadav and Arjun Yadav. The accused persons
were also charged under section 323 of IPC for causing hurt to
Dasrath Yadav, Informant.
5. The learned trial court after framing the charges against the
appellant conducted the trial and after conclusion of the trial the
learned trial court passed the impugned judgment of conviction and
order of sentence which is under challenge.
6. Heard Mr. Arjun N. Dev, learned counsel for the appellant and
Mr. Abhay Kr. Tiwari, learned A.P.P. for the State.
Argument on behalf of the appellants:
7. Learned counsel for the appellant submitted that it is not a case
where the FIR has been directly instituted u/s 302 IPC rather at the
first instance a Sanha was instituted by the son P.W.10 of the
deceased. It has also been submitted that it is an admitted case of the
prosecution that a dispute between the father and the son was going
on. This sole appellant Huro Yadav along with the other co-accused
persons (who have been acquitted by the trial court) were living in
the same premises and it is stated that the appellant along with the
other accused persons assaulted the deceased, father of the informant
P.W.10, and later on he succumbed to the injuries and it is contended
on behalf of the appellant that it is a case of simple injury and not the
case under section 304 part II IPC because there had never been
Cr. Appeal (SJ) No. 1813 of 2003
either intention or knowledge to the appellant that due to the injury
death would be caused.
8. It has further been pointed out by the learned counsel for the
appellant that P.W. 1- Bhikhani Devi, wife of the deceased, in para 4
stated that the deceased was a habitual drunker and he used to drink
frequently and for this cause there had been a dispute between the
informant-son and the father and on that day the dispute has been
going on between the informant and the deceased for the same
reason of consumption of liquor and further she categorically stated
that she did not know as to by whose assault her husband sustained
head injuries.
It has been submitted by learned counsel for the appellant that
as P.W. 1 has stated that all the accused persons had assaulted the
deceased and the accused appellant is one of them who has been
convicted and all the rest of the accused persons have been acquitted
and, therefore, there is inconsistency in the finding of the learned
court below by wrongly appreciating the evidences available on
record. This accused-appellant has been tried along with the co-
accused persons Balo Yadav, Govind Yadav and Arjun Yadav but
other accused persons have been acquitted and the case of appellant
standing on the similar footing on the same set of evidences in the
light of the version of P.W. 1 has not been considered by the learned
trial court and, therefore, the appellant also deserves to be acquitted.
9. P.W.2- Urmila Devi is the wife of the informant and the
daughter-in-law of the deceased. She has also stated in para 2 of the
cross examination that there had been an altercation between the
informant and the deceased father and it was also intervened by the
mother-in-law (wife of the deceased) of this witness to pacify them.
By virtue of paras 2, 3 & 4 of P.W. 2, defence has been taken on
behalf of the appellant that there had been some altercation between
the father (deceased) and son (son of the deceased) and the appellant
is the gotia and having a land dispute between them and, therefore,
they have been falsely implicated in this case and a false case has
Cr. Appeal (SJ) No. 1813 of 2003
been instituted by the son of the deceased and admittedly a dispute
was going between the son and the father. P.W. 3 & 4 have been
declared hostile.
10. It has further been pointed out that P.W. 6, 7, 8 & 9 are the eye
witnesses of the occurrence but tendered by the prosecution and have
not been examined on behalf of the prosecution for the reason best
known to them. Although they have been cited as prosecution
witnesses at the time of filing the charge sheet who have been
tendered. Further, it has been pointed out that the P.W.10 the
informant, the son of the deceased, who is said to have been
sustained injuries and for this, the charge was also farmed against the
accused persons including this accused appellant for the offence
punishable u/s 323 of IPC, but, the learned trial court while
appreciating the evidences in totality did not find the guilt of any of
the accused persons including this accused appellant for the offence
punishable u/s 323 IPC and, therefore, the case of the prosecution is
totally shaken when the informant P.W.10 has stated in his
deposition that he was also assaulted by the accused persons and he
had sustained injuries, but, this fact could not be proved and,
therefore, the subsequent part which are correlated with the assault
on the deceased is also not substantiated.
11. It has also been pointed out by the learned counsel for the
appellant that P.W. 11- Dr. A. Singh has examined the informant and
found injuries on the informant Dasrath Yadav (son of the deceased)
even though the learned trial court did not find the guilt of any of the
accused persons for the offence punishable u/s 323 IPC, meaning
thereby there was a dispute between the son- informant and the
father-deceased and this sole appellant along with the other accused
persons have no role to play in the alleged fighting and quarrel and
the alleged occurrence was confined to the informant son and the
deceased father. Therefore, the defence counsel for the appellant
submitted that the deceased father had sustained injuries because of
the assault of the son the informant P.W.10 and not by the appellant
Cr. Appeal (SJ) No. 1813 of 2003
therefore, it is contended on behalf of the learned defence counsel
that the benefit of doubt must be given to the sole appellant
particularly in absence of any evidence against the appellant.
Further it is pointed out on behalf of the appellant that as P.W.
11 has examined the deceased- Bhattu Yadav and in the cross
examination the attention of the Court was drawn where it has been
stated by this witness that the deceased might have sustained such
injuries by falling on the ground. It has also been pointed out that
statement recorded u/s 313 of Cr.P.C. of the accused is also
perfunctory and no specific evidence recorded against the accused
appellant to hold him guilty, was asked from the accused-appellant.
It has further been pointed out that at the time of judgment he was 70
years old and now he is 87 years old and he has already remained in
custody for 3 years and this case is also lingering since 1988 and,
therefore, it is urged that sentence of 6 years as awarded by the
learned trial court is also bad in view of these facts.
Argument on behalf of the State:
12. On the other hand, learned A.P.P. appearing on behalf of the
State has vehemently opposed the contention raised on behalf of the
appellant and submitted that the learned trial court has rightly held
the conviction of the sole appellant for the offence punishable u/s 304
Part II IPC as there is no legal evidence to interfere in the impugned
judgment of conviction and order of sentence. P.W. 12- Suresh Prasad
Singh, I.O., and he has stated about the manner of occurrence, place
of occurrence and the mode of occurrence and neither any
consistency has been found nor any contradiction has been pointed
out in the investigation and, therefore, this appeal has no merit and
fit to be dismissed.
FINDINGS
13. Having heard learned counsel for the parties and perused the
record of the case including the lower court record.
Cr. Appeal (SJ) No. 1813 of 2003
14. The genesis of the allegations as set out in the FIR is that the
informant Dashrath Yadav (P.W.10) had been quarreling with his
father deceased Bhattu Yadav, there upon the accused Huro Yadav
hit by lathi upon the head of the deceased Bhattu Yadav and some
other persons also interfered and assaulted him and thereafter he
succumbed to the injuries and he died during the course of the
treatment.
The accused-appellant Huro Yadav faced the trial along with
other persons for the offence punishable under sections 304/34 and
323 of IPC and after trial the accused-appellant is found guilty for
the offence punishable under section 304 Part II of the IPC and other
two persons who faced the trial along with the accused-appellant
have been acquitted.
15. In order to substantiate the charges levelled against the
accused-appellant, prosecution has been able to examine altogether
12 witnesses apart from the documentary evidences including Exhibit
1, postmortem report, Exhibit-2 is the certificate, Exhibit 3 is the
Fardbeyan and Exhibit 4 and 4/1 are the medical examination report
of Dasrath yadav and the deceased Bhattu Yadav. P.W.3 Suresh
Kumar Yadav and P.W.4 Mohan Yadav have been declared hostile
by the prosecution and their statements have supported the case of
the prosecution to a limited extent. P.W.3 stated in his deposition that
on hulla when he reached to the place of occurrence and saw that
blood was oozing from the head of the deceased Bhattu Yadav. It is
also found that this witness P.W.3 has been residing 15 yards from
the place of occurrence, so the presence of this witness is natural and
to the extent as discussed above he has supported the case of the
prosecution. Similarly P.W.4 Mohan Yadav stated that having heard
the noise he had gone to the house of Dasrath Yadav P.W.10 and saw
that the accused persons had been beating the deceased Bhattu Yadav
by which the said Bhattu Yadav died. This witness had taken the
specific name of the persons and amongst them one of them was the
Cr. Appeal (SJ) No. 1813 of 2003
accused-appellant Huro Yadav. P.W.6 Kataniya Devi supported the
case of prosecution by stating that there had been quarreling at the
place of P.W.10 Dashrath Yadav who is the informant of the present
case. Further, P.W.7 Kali Mahto, P.W.8 Etwari Yadav and P.W.9 Sita
Ram Rawani have been tendered and prosecution did not examine
them. P.W.5 and P.W.11 are the Medical Doctors and the P.W.12 is
the Investigating Officer who proved the place of occurrence. There
are three clear cut eye witnesses P.W.1 and P.W.2 and P.W.10 who
are evaluated to ascertain their veracity.
16. P.W. 10 Dashrath Yadav is the informant of this case and son of
the deceased Bhattu Yadav. He had stated that on 25 .08.1988 at 9:00
p.m. when there had been some altercation with his father and his
father was abusing him, the accused-appellant Huro Yadav assaulted
his father (deceased) by Lathi and caused injury on the head of the
deceased by which he succumbed to the injuries later on. P.W. 10-
Dasrath Yadav- the informant, further supporting the prosecution
stated that the accused-appellant pointed out that who had assaulted
the deceased on his head by lathi and no discrepancy is found. The
version of this eye-witness has been substantially corroborated by the
testimonies of P.W.1 and P.W. 2 who were another natural eye
witnesses.
17. Both the witnesses P.W. 1 and P.W. 2 have wholly supported
the case of the prosecution to the extent that the appellant has
assaulted the deceased: Bhattu Yadav, on his head by means of lathi.
P.W.1 Bhikni Devi stated that when all her family members were in
the house and when her husband was abusing her son P.W.10 the
accused-appellant Huro came and inquired why was he abusing
P.W.10, upon this her husband said that he was abusing his son and
not him, then the accused persons assaulted her husband by Lathi. In
the cross-examination the deposition of this witness remains intact
where this witness explicitly stated that the deceased has sustained
the injuries on his head although this witness said that she could not
Cr. Appeal (SJ) No. 1813 of 2003
say that which accused caused injury on the head of her husband.
The case of the prosecution further gets fortified with the deposition
of P.W.2 who has categorically and pointedly corroborated the
involvement of accused-appellant in the commission of the offence.
P.W.2 Urmila Devi stated that at 9 P.M when her father-in-law
(deceased) was abusing her husband, the accused-appellant
intervened and assaulted the deceased Bhattu Yadav by Lathi and
caused head injury. In the cross examination also this witness has
deposed candidly that it was accused-appellant who had assaulted
the deceased by Lathi and caused injury on the head.
18. P.W. 11 Dr. A. Singh has also been examined who had treated
the deceased and he had also found the injuries on the head of the
deceased and therefore, his version has been fully corroborating the
case of the prosecution about the injuries inflicted upon the head of
the deceased. This doctor P.W.11 had examined, for the first time,
when the deceased was brought before him when the deceased was
assaulted by lathi upon his head and he had sustained head injuries.
He had proved the injury report Ext. 4/1 of the deceased Bhattu
Yadav and found the following injuries on his head :
One lacerated wound on the right side of the scalp 6" above the right
ear of the size 1" x ½". The injury was simply caused by hard and blunt
substance.
Thus this witness has fully corroborated the version of the
prosecution that the deceased was inflicted injuries by Lathi on his
head and this witness clearly stated in his deposition that the
behavior of the patient was abnormal and he was not able to respond
to the question. Further, the charges levelled by the prosecution get
strengthened by the postmortem report (Ext.-1) and the death
certificate (Ext.-2) which are proved by P.W. 5 Dr. Kanhaiya Lal
Srivastava who supported the case of prosecution that the injuries
inflicted upon the deceased were sufficient to cause death in ordinary
Cr. Appeal (SJ) No. 1813 of 2003
course of nature as evident from Ext. 1 & 2. Thus, it is proved that the
deceased Bhattu Yadav died due to Lathi blow which was caused by
the accused-appellant who had assaulted him by Lathi in a sudden
quarrel going on between son (P.W.10) and father (the deceased) as
established in the forgoing paragraphs. The learned trial court has
rightly come to the conclusion as emanating from the evaluation of
the evidences as done elaborately by this Court also in the foregoing
paragraphs. The accused-appellant, having no animosity towards
deceased and was involved because of the altercation which was
going on between the deceased and his son P.W.10, inasmuch as
scenario at the time of occurrence not showing that he had intention
or requisite knowledge to cause murder. Thus, this Court finds the
guilt of the accused-appellant for the offence punishable under
section 304 part II IPC and accordingly upholds the conviction of the
accused-appellant for the offence punishable under section 304 part II
of IPC.
19. It appears that this appellant is almost 80 years old and the
occurrence has taken place as far back as 25.08.1988 more than 30
years and he has already remained in jail custody for more than 3
years and supporting his contentions he relied upon the rulings of the
Hon'ble Supreme Court and submitted that a lenient view may be
taken in awarding the sentence.
20. This Court finds force in the contentions raised by the learned
defense counsel. It is found that the accused appellant over a period
of time has become more than 80 years as on date and there is
nothing on record to indicate about his criminal history and he had
all round suffering from the hardship and trauma from 1988 and he
has already remained in jail for more than three years. Therefore, it is
just and proper to impose the sentence of imprisonment upon the
appellant for a term of the period he has already undergone/served
in Jail. Accordingly, the accused appellant after being convicted for
the offence punishable u/s 304 Part II IPC, the accused-appellant
Cr. Appeal (SJ) No. 1813 of 2003
Huro Yadav is awarded the sentence for the period he has already
undergone.
21. Accordingly, this appeal is dismissed with modification in
order of sentence as above.
22. Since the appellant of this appeal is on bail and thus, he is
discharged from the liabilities of his bail bond in this case.
23. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 01.12.2021/NAFR
MM/-
