Gobardhan Rajak vs State Of Jharkhand
2023 Latest Caselaw 1700 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)
                 Cr. Appeal (SJ) No. 1649 of 2003
(Against the judgment of conviction and the order of sentence both dated
24.09.2003, passed by the learned 4th Additional District & Sessions
Judge, Dumka, in Sessions Case No. 37 of 2003/ 350 of 2003)

Gobardhan Rajak                                          ..... Appellant
                               Versus
State of Jharkhand                                       ..... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant        : Mr. S.P. Roy, Advocate
                           Mr. Purnendu Sharan, Advocate
For the Resp.-State      : Ms.Vandana Bharti, APP
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07/ 24.04.2023      Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and the order of sentence, both dated 24.09.2003, passed by the learned 4th Additional District & Sessions Judge, Dumka, in Sessions Case No. 37 of 2003/ 350 of 2003, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for five years under Section 304 part-II of the Indian Penal Code.

3. The prosecution case in brief is that on 23.09.2002 at 3 P.M., informant was standing at the back side of his house and his brother Arbind was coming with ox tied with rope and as the footpath road was narrow in between the land of the informant and the accused persons and there was crop in the field of the accused; all of a sudden, the legs of the ox went inside the field of the accused at which all accused persons began to abuse. In the meantime, father of the informant came there and asked the reason for abusing, on that altercation took place. Further, it is alleged that all the accused persons hold the deceased and accused Gobardhan gave a brick blow on the head of the deceased, as a result of which, he fell down. It is further alleged that Arbind ran to save his father on which the accused persons assaulted Arbind Rajak and the informant and Arbind had sustained injury. It is further alleged that the father of the informant died immediately at the place of occurrence. Thereafter, the accused persons ran away from there.

4. Learned counsel for the appellant submits that none of the

independent witnesses have supported the prosecution case in their evidence; rather they have been declared hostile by the prosecution and the conviction has been made on the basis of deposition of P.W. 1 and P.W.2, who are sons of the deceased; as such, conviction on the basis of deposition of interested witnesses is not sustainable. Admittedly, three persons were involved in the occurrence and on the same set of evidence, the appellant has been convicted for the offence under Section 304 part-II and the other co-accused were convicted for the offence under Section 323 of the IPC.

He further submits that the Doctor-P.W. 3 who has conducted postmortem has given confusing statement, inasmuch as, he deposed at para 5 of his cross examination as under:

"5. ..... The injury on the deceased may be caused from fall from a height to hard substance and it may also be caused by brick-batting."

Even the I.O. who has been examined as P.W. 8 has deposed that all the accused persons hit the deceased by brick, as such, convicting the other accused for the offence under Section 323 of the IPC and convicting the appellant under Section 304 part-II IPC is not sustainable in the eye of law. As such, the judgment of conviction should be set aside.

5. The learned APP supported the judgment and submits that the learned trial court has not committed any error and as a matter of fact he has taken note of the hostile witnesses also and came to the conclusion that the appellant was involved in the brick batting. Admittedly, the deceased died on the spot, as such there is no two opinions that there is direct nexus between the injury and the death of the deceased; as such no interference is required.

6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on record and the LCR, it appears that on 23.09.2002 brother of the informant was returning along with his ox from the grazing field. While returning, one of the legs of the ox slip into field of the appellant on which objection was raised. In the meantime, father/deceased of the informant came there and asked the reason for abusing, on that altercation took place. Further,

it is alleged that all the accused persons hold the deceased and accused Gobardhan gave a brick blow on the head of the deceased, as a result of which, he fell down and sustained injury and died immediately.

On the basis of fardbeyan, FIR was lodged for the offence under Section 302/34 of the IPC. However, the learned trial court did not convict the appellant and the co-accused for the offence under Section 302/34 IPC however, on the same set of evidence he convicted the other accused for the offence under Section 323 of the IPC and convicted this appellant for the offence under Section 304 part-II.

7. Before discussing the issue paragraph 8 of the judgment passed by the learned trial court is quoted herein below:

"8. Summing up the evidence of the parties, it emerges that at the relevant time on the date of occurrence P.W.-2 was bringing ox to Home which entered into the Radish bari of the accused at which altercation took place with the accused persons and the accused persons began to abuse and brick batting on the prosecution parties and the accused Gobardhan gave only one brick blow on the head of the deceased about 70 years old as a result of which he died thereon instantaneously, and P.W.-1 and P.W-2 had sustained injury due to brick batting made by the rest accused persons which goes to show that accused had no any intention to kill the deceased, rather they have brick batted due to altercation and in the hit of anger, accused Gobardhan gave only one brick blow on the head of the deceased aged about 70 years. Prosecution has not shown any such circumstance which had prevented the accused him from giving repeated blow of brick on the persons of the deceased."

After going through the aforesaid discussion made by the learned trial court and also after going through the deposition of investigating officer, it appears that the place of occurrence was backyard of the informant party as well as of the accused persons. The I.O. has categorically said that it was raining on that day. Further, it is relevant to refer the deposition of P.W. 2 who at paragraph 6 of his cross examination has deposed that brick was thrown two steps away from where his father fell.

8. Looking to the aforesaid deposition of P.W.2 and I.O. it is important to refer the deposition of the Doctor who is P.W-3 who has stated in cross examination that the injury may be caused by fall on hard substance and it may also be caused by brick batting. Admittedly, there

was a sudden altercation and due to rain, while informant was returning along with his ox from his field, one of the legs of ox slip into the field of the appellant and that was the immediate cause of altercation.

By conjoint reading of the deposition of the I.O., P.W. 2 and of the Doctor it can be inferred that since it was the rainy day and the bricks were lying down near the place of occurrence and the deceased was aged about 70 years; died due to slip and push. Admittedly, the learned trial court in the operative portion has categorically stated that the appellant gave only one brick blow on the head of the deceased.

It is an admitted case of the prosecution that all the three accused persons were involved in the altercation and due to sudden provocation, they used brick in the fight. There is no specific allegation coming from either of the deposition witnesses that the appellant was solely responsible for the death of the deceased.

9. It goes without saying that the brick has not been seized by the police. The Doctor has deposed that no apparent external injury was seen and the death may be caused from fall from height to a hard substance and also the injury might have been caused by brick batting. Thus, the Doctor was also not certain.

I also find that there are contradictions with respect to time of occurrence. P.W.1 deposed that the altercation continued for half an hour whereas P.W.2 deposed that it continued for about two minutes. P.Ws. 1 and 2 have received simple injury in the hands of the appellant.

10. Thus, looking to the overall facts and circumstances of the case though the appellant along with co-accused were involved in brick batting but it cannot be said by certainty that it was only due to hit by the appellant the deceased succumbed to death. Admittedly, it was a rainy season and the width of the road was very small as per the deposition of the I.O. and bricks were lying down nearby; as such, it can be inferred that after altercation and brick batting, the deceased sustained injury, may be by fall on the hard substance.

As aforesaid, it is also not clear that it was only appellant who was responsible for death; thus, on the same set of facts and depositions convicting this appellant for the offence under Section 304

part-II of the IPC and leaving the other two accused persons appears to be bad in law. When the other two prosecution witnesses sustained only simple injury it can be inferred that the deceased might have got simple injury and due to push and slip fallen down on the hard surface where bricks were fallen and succumbed to death. Since there is confusion in the deposition of the Doctor so far as relates to cause of death, the benefit of doubt should be given to the appellant.

11. The question is whether the second part of 304 of the IPC can be made applicable in the case of appellant. The second part no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part, but knowledge is the knowledge of the likelihood of death. Can it be said that when three persons start beating the informant side with brick each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was likely to result of the beating.

Admittedly, as per the categorical finding of the learned trial court, the appellant has been charged for beating one blow. Thus, the requirement of 304 part-II is not satisfied in the facts and situations of this case. Hence, this Court is of the considered view that the appellant requires benefit of doubt from the charge of Section 304 part-II of the IPC.

12. However, this Court cannot ignore the fact that admittedly there was altercation between the parties which resulted in brick batting. Admittedly the appellant was involved in the altercation; as such conviction under Section 304 part II is, hereby converted to conviction under Section 323 of the IPC.

13. Now coming on the question of sentence, it is relevant to refer the social investigation report which has been submitted by the public prosecutor that the appellant at present is doing farming and living in an old mud house; meaning thereby to say that the appellant is not involved in any other criminal activities and it was the sole incident.

14. Looking to the overall facts and circumstances of the case interest of justice would be sufficed by sentencing the appellant only for the charge u/s 323 IPC. From record it appears that appellant has already

remained in jail custody for one year and five months approx.; as such the appellant is sentenced for the period already undergone.

15. With the aforesaid observations, the instant criminal appeal stands partly allowed.

16. The appellant shall be discharged from the liability of his bail bond.

17. Let the copy of this order and the lower court record be sent to the court concerned forthwith.

(Deepak Roshan, J.)

Pramanik/ AFR