Sundar Gayar vs The State Of Jharkhand
2022 Latest Caselaw 4245 Jhar

                 Criminal Appeal (D.B.) No. 549 of 2017
    [Against the judgment of conviction dated 30.01.2017 and order of
    sentence dated 02.02.2017 passed by Sri Abni Ranjan Kumar Sinha,
    learned Sessions Judge, Gumla in Sessions Trial No. 192 of 2010]
                                 ...........

Sundar Gayar, S/o Late Lalu Gayar, R/o Village- Hutap, P.O. & P.S.- Dumri, District- Gumla ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

     For the Appellant             : Mr. Amit Kr. Choubey, Advocate
     For the State                 : Mr. Saket Kumar, A.P.P.
                               PRESENT
            HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE AMBUJ NATH
                                  ...........
C.A.V. on 06/07/2022                     Pronounced on 18/10/2022

Heard Mr. Amit Kr. Choubey, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 30.01.2017 and order of sentence dated 02.02.2017 passed by Sri Abni Ranjan Kumar Sinha, learned Sessions Judge, Gumla in Sessions Trial No. 192 of 2010, whereby and whereunder the appellant has been convicted for the offence punishable u/s 304 Part-I of the IPC and has been sentenced to undergo R.I. for life along with a fine of Rs. 20,000/- and in default in payment of fine to undergo S.I. for further three months.

3. The fardbeyan of Bartu Gayar was recorded on 25.02.2010 to the effect that on 24.02.2010 at about 07:30 P.M. he was in his house and the others present were his father Talsu Gayar, mother Sukri Devi and younger brother Manager Gayar. His parents were preparing meal in the Verandah and he was tying up the Goats when Sundar Gayar (appellant) who was his cousin brother came and demanded Rs. 500/- for purchasing a Goat. The father of the informant assured him that once the amount is arranged it shall be given to him. It has been alleged that all of a sudden Sundar Gayar picked up an axe and before anyone could comprehend he had assaulted his father with the axe on head as a result of which his father fell down on the earth. When the mother of the informant intervened, she was also assaulted. The informant and his brother fled away after raising alarm and also informed the villagers. When the informant returned back to his house, he found

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his parents lying dead. It has further been alleged that Sundar Gayar had already fled away from the place of occurrence. The axe used in the murder was found lying outside the house near a Malabar plum (Jamun) tree.

Based on the aforesaid allegations Dumri P.S. Case No. 06/2010 was instituted against the accused Sundar Gayar for the offences u/s 302 of the IPC. On completion of investigation charge- sheet was submitted u/s 302 of the IPC after which cognizance was taken and the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 192 of 2010. Charge was framed against the accused for the offence punishable u/s 302 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eleven witnesses in support of its case.

5. P.W.1 (Laxman Ahir) has deposed that when the incident had occurred he was at Chiro Toli. In the morning he came to know that his parents-in-law have been murdered. He came to his in-laws house along with his wife and came to know that Sundar Gayar had committed the murders. The murders took place because his father-in-law had refused to give Rs. 500/- to Sundar Gayar as demanded by him.

In cross-examination, he has deposed that the distance from his house to his in-laws place is 14-15 Km.

6. P.W.2 (Birendra Munda) has deposed that the incident is of an year back and it was around 07:00 P.M. when he had heard the alarm raised by Bartu and Manager and when he rushed to their house he found the dead bodies of Talsu and Sukri.

In cross-examination, he has deposed that the distance from his house to the house of Talsu is half a Kilometer. He had not seen the occurrence. He does not have any knowledge as to whether there was any enmity between Sundar and the appellant and the informant or not.

7. P.W.3 (Bartu Gayar) is the informant who has stated

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that the incident is of one year back at about 07:00 P.M. He was in the house along with his parents and brother when Sundar Gayar had come and demanded Rs. 500/- from his father for purchasing a Goat. When his father showed his inability to give him Rs. 500/- a quarrel had ensued and Sundar Gayar had assaulted his father with a Tangi. When his mother tried to save his father Sundar Gayar had assaulted her too. He and his younger brother fled towards the village and raised alarm. When he returned back to his house with the villagers he found his parents dead. The Police had recovered the Tangi from near the Malabar plum tree.

In cross-examination, he has deposed that at the time of the incident he had come home after grazing the Goats and was tying them. It was not dark inside the house. He has stated that there never was any enmity with Sundar Gayar.

8. P.W.4 (Parvati Devi) is the sister-in-law of the deceased Sukri Devi. She was in the village when the incident occurred. She has stated that Sundar Gayar had committed the murder with an axe.

In cross-examination, she has deposed that when the incident had occurred, she was in her house. She had not witnessed the assault.

9. P.W.5 (Dharman Gayar) has stated that he had heard about the murder of his sister and brother-in-law in the morning which was committed by Sundar Gayar. He had also heard that Sundar Gayar had demanded the price of a Goat from his brother-in- law and on refusal the murders were committed.

In cross-examination, he has deposed that the Police had arrived after he had reached the place of occurrence. Sundar Gayar is his nephew in relation.

10. P.W.6 (Sukhram Munda) did not support the case of the prosecution and was declared hostile by the prosecution.

11. P.W.7 (Dr. Roshan Parveen Xalxo) was posted at Sadar Hospital, Gumla. On 26.02.2010, he had conducted autopsy on the dead body of Talsu Gayar and had found the following

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injuries:

External injuries:

i) Sharp cut injuries 5 x 6 inches over fronto maxillary region and fracture of frontal maxillary bone on left side, left eye enucleated.

ii) Sharp cut injuries over left side of occiput with fracture of occipital bone 4 x 2 inch.

All the injuries were antemortem in nature. On dissection ;- Posterior loss of brain lacerated, contused and blood clot present "frontal love of brain lacerated contused, blood clot present" stomach containing semi digested food particles.

The cause of death was opined to be due to injury to brain matters. All the injuries were caused by sharp cutting hard and heavy weapon. The postmortem has been proved and marked as Exhibit-1.

On the same day, he had conducted autopsy on the dead body of Sukhari Devi and had found the following injuries:

Injuries:

i) Vericar sharp cut injury 6" x 3" extending from just below the hood bone up to manubrium of sternum with fracture of bone, tachea, oesophages and great vessels where sharply cut.

ii) Lacerated wound on posterior aspect of right elbow.

All the injuries were antemortem in nature. On dissection ;- madiastinum full of copious blood, stomach containing semi digested food particles.

The cause of death was on account of hemorrhage and shock. The injuries were caused by sharp cutting and heavy weapon. The postmortem has been proved and marked as Exhibit-2.

12. P.W.8 (Bandhu Ahir) is the father of the deceased Sukri Devi. He has stated that Sundar Gayar had committed the murder of his son-in-law and daughter. On the date of occurrence, he was in his house.

In cross-examination, he has stated that he had gone to the place of occurrence on the third day of the incident and the dead bodies were still lying in the house. The accused is his grandson in relation.

13. P.W.9 (Manager Gayar) did not support the case of the prosecution and was declared hostile by the prosecution.

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14. P.W.10 (Arjun Purti) was posted as an Officer-in- Charge of Dumri P.S. and on 25.02.2010 he had recorded the fardbeyan of Bartu Gayar. He has proved the fardbeyan which has been marked as Exhibit-3. He has identified the handwriting and signature in the endorsement which has been marked as Exhibit-3/1. He has also proved the formal First Information Report which has been marked as Exhibit-4. After taking over the investigation of the case he had prepared the inquest reports which have been marked as Exhibits- 5 and 5/1. He had inspected the place of occurrence which is at village Hutap in the mud tiled house of Talsu Gayar. The body of Sukri Devi was found at the entrance to the Kitchen and the body of Talsu Gayar was found near the oven in the verandah. Some of the utensils had traces of blood. The house of Sundar Gayar is situated on the eastern side of the place of occurrence. An axe was recovered near the bushes and the Malabar plum tree which was bloodstained and hairs were found stuck on it. He has proved the seizure list which has been marked as Exhibit-6. At the place of occurrence, he had recorded the statements of Laxman Ahir, Bandhu Ahir, Darman Ahir, Birendra Munda, Sukhram Munda, John Oraon and Parvati Devi and had also recorded the re-statement of the informant. He had arrested the accused Sundar Gayar. He had obtained the postmortem reports and had thereafter submitted charge-sheets.

He has deposed that Sukhram Oraon in his statement had disclosed that on hearing the cry of alarm, he had gone to the house of Bartu Gayar and had found Talsu Gayar and Sukri Devi dead. The assailant had fled away.

He had recorded the statement of Manager Gayar who had stated that Sundar Gayar had demanded money from his father for sacrificing a Goat but when it was not given Sundar Gayar had assaulted his father with an axe and when his mother intervened she was also assaulted.

In cross-examination, he has deposed that the seized axe was not sent for forensic examination.

15. P.W.11 (Sikander Tamsoy) has produced the seized

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axe to the court from the Malkhana. The same was in a sealed condition covered with a white cloth which has been marked as material Exhibit-I. The axe has been marked as material Exhibit-II.

16. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied his involvement in the murder.

17. It has been submitted by Mr. Amit Kr. Choubey, learned counsel for the appellant that P.W.3 is the only eye-witness whose evidence suffers from contradictions and inconsistencies. It has been submitted that it was dark when the incident took place and, therefore, the identification of the appellant is doubtful. The evidence of P.W.3 has not been corroborated by the other witnesses. It has been submitted that if this submission is not accepted then also at best a case u/s 304 Part-II is made out against the appellant.

18. Mr. Saket Kumar, learned A.P.P. has submitted that apart from the incident having been witnessed by P.W.3 the manner of assault has been corroborated by the postmortem report. It has been submitted that the act of the appellant had led to the death of two persons and the appellant had the intent and the knowledge and, therefore, he had rightly been convicted u/s 304 Part-I of the IPC.

19. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records.

20. The incident of assault is said to have taken place in the house of P.W.3. Although the incident was witnessed by the informant and his brother but his brother who has been examined as P.W.9 turned hostile during trial. P.W.3 is therefore the solitary eye- witness and his evidence has to be considered with circumspection. As per P.W.3 the quarrel between the appellant and the father of P.W.3 namely Talsu Gayar had started on account of the inability of Talsu Gayar in meeting the demand of Rs. 500/- made by the appellant. During the quarrel the assault had been committed by the appellant on Talsu Gayar and when Sukri Devi tried to save her husband she was also assaulted. P.W.3 has not stated that the appellant had come armed with an axe and in the fardbeyan he had disclosed about the appellant picking up an axe and causing assault

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upon his parents. The defence has failed to elicit any contradiction in the testimony of P.W.3. The postmortem reports also corroborate the manner of assault as depicted by P.W.3. P.W.3, therefore, appears to be reliable and trustworthy.

21. So far as the contention of the learned counsel for the appellant that conviction should have been made u/s 304 Part-II and not u/s 304 Part-I of the IPC is concerned, reference in such context has been made to the case of "Bunnilal Chaudhary versus State of Bihar" reported in (2006) 10 SCC 639, wherein it has been held as follows:

"11. That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on the left side of the chest. Therefore, we are of the opinion that clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal Chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The act which was done was

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done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder."

22. Reference has also been made to the case of "Chenda @ Chanda Ram versus State of Chhattisgarh, reported in (2013) 12 SCC 110, wherein it has been held as follows:

"22. The next inquiry is whether the offence falls under first part of Section 304 or the second part.

23. Having regard to the parameters indicated in Gurmukh Singh case, the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted.

24. Thus, considering all these aspects, we are of the view that it is a fit case to alter the punishment of imprisonment for life to imprisonment for a period of 10 years with a fine of Rs 50,000. Ordered accordingly. Since the deceased has been left with a young widow and one child, the amount of fine thus recovered shall be paid as compensation to the widow and the child. In the event of the appellant defaulting to pay the fine, he shall undergo imprisonment for a further period of two years. In case the appellant has already served the term as above, he shall be released forthwith, if not required to be detained in connection with any other case. The appeal is allowed as above."

23. In the present case admittedly there was no enmity between the parties, the appellant was related to the deceased and

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the assault had taken place on a trivial issue. Though the appellant had given single blow with axe upon the deceased Talsu Gayar and Sukri Devi but the intent was there as both were assaulted on the vital part of their body which resulted in immediate death.

24. We, therefore, come to the conclusion that based on the materials on record the learned trial court had rightly convicted the appellant for the offence u/s 304 Part-I of the IPC and sentenced him to undergo R.I. for life along with a fine of Rs. 20,000/- vide judgment of conviction dated 30.01.2017 and order of sentence dated 02.02.2017 passed by Sri Abni Ranjan Kumar Sinha, learned Sessions Judge, Gumla in Sessions Trial No. 192 of 2010 and, accordingly, this appeal is dismissed.

25. Pending I.As., if any, stand disposed off.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 18th day of October, 2022.

Alok/NAFR