Dhani Ram Lohra vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 654 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 193 of 1994 (P)

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[Against the Judgment of conviction and Order of sentence dated 27th September, 1994 passed by the learned Additional Judicial Commissioner, Ranchi in S.T. No.752 of 1991]

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Dhani Ram Lohra, resident of village-Husir, P.S. Sadar, District-Ranchi .... Appellant

Versus The State of Bihar (now Jharkhand) Respondent

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

For the Appellants : Mr. Pradeep Kumar Deomani, Adv. For the State : Mr. Abhay Kumar Tiwari, APP .....

Oral Judgment/Dated 8th February, 2023 Per Sujit Narayan Prasad, J.:

The instant appeal filed under Section 374 (2) of the

Code of Criminal Procedure has been preferred against the

judgment of conviction and order of sentence dated 27th

September, 1994 passed by the learned Additional

Judicial Commissioner, Ranchi in S.T. No.752 of 1991 by

which the appellant, named above, has been found guilty

and convicted for the offence punishable under Section

302 of the Indian Penal Code and sentenced to undergo

life imprisonment for the said offence.

2. This Court, before proceeding to examine the legality

and propriety of the judgment of conviction and order of

sentence, deems it fit and proper to refer the background

of institution of prosecution case, which reads as under:

On 01.03.1991 at about 7.00 P.M. the accused Jitu

Lohra reached near the house of informant situated at

village Basir and asked the informant not to blow

Loudspeaker towards his house. The house of the accused

stands by the side of the house of the informant-Rishun

Lohra. The informant and his family members told the

accused to allow them to blow loudspeaker on that date

because it was the day of Holi, but Jitu Lohra damaged

the loudspeaker and threw the same in presence of

informant, his father, his nephew Shekhar and neighbor-

Kallu. When Jitu was engaged in dismantling the

loudspeaker, the informant's mother Budhni wanted to

stop him from doing so on the plea that it was the day of

festival. In the meantime, Jitu's younger brother Dhani

Ram Lohra came out of his house armed with Tangi in his

hand and gave tangi blow towards the right side of the

head of Budni Devi. Budhni Devi sustained injury on her

head and fell down on the ground and became

unconscious. Upon this, Dhani and Lohra escaped with

Tangi from the place of occurrence seeing the people

coming to the place of occurrence. Some people took the

injured to R.M.C.H and the informant reached to the

Police Station to lodge information about the occurrence.

3. On the basis of fardbeyan of the informant, formal

F.I.R. was registered against the accused persons for the

offence under Sections 324, 307, 427, 448, 34 of the

Indian Penal Code. The injured Budhni Devi died in

course of treatment on 23.03.1991 at RMCH, as such

Section 302 of the Indian Penal Code was added in the

F.I.R.

4. The matter was investigated by the Investigating

Officer, who after investigation submitted charge-sheet

under Sections 302/34 of the Indian Penal Code.

5. The Chief Judicial Magistrate, Godda took

cognizance of the offence and committed the case to the

Court of Sessions wherefrom the case was received in the

Court of learned Additional Judicial Commissioner,

Ranchi for trial and disposal.

6. In course of trial, the prosecution has examined

altogether eight witnesses, namely, Mohan Lohra (P.W. 1),

Kallu Lohra (P.W. 2), Chintamani Lohra (P.W. 3), the

doctor-Ajit Kumar Chaudhari (P.W. 4), P.W. 5-Rishun

Lohra (informant), Jhakhan Lohrain (P.W. 6), P.W. 7-

Chandrashekhar Lohra and P.W. 8-Md. Kalam (the

investigating Officer).

7. The trial Court, after recording the evidence of

witnesses, examination-in-chief and cross-examination,

recorded the statement of the accused persons under

Section 313 of the Criminal Procedure Code, and found

the charges levelled against the present appellant proved

beyond all reasonable doubts under Section 302 of the

Indian Penal Code. Accordingly, the appellant had been

found guilty and convicted for the offence punishable

under Sections 302 of the Indian Penal Code and

sentenced to undergo life imprisonment for the said

offence. However, so far accused Jitu Lohra is concerned,

he was acquitted of the charge(s) leveled against him.

8. The aforesaid judgment of conviction and order of

sentence is under consideration before this Court as to

whether the trial Court while convicting the accused person

has committed any illegality or not?

9. Mr. Pradeep Kumar Deomani, learned counsel for the

appellant assailed the judgment of conviction and order of

sentence on the following grounds:

(I).The conviction is based upon the prosecution story

but from bare perusal of same, it cannot be said to

be pre-meditated motive to commit murder.

According to learned counsel for the appellant,

the occurrence took place as spur of moment and in

course thereof the assault by the tangi blow was

given which ultimately resulted into death of the

deceased after 22 days from the date of occurrence

and as such at best it will be said that there is

ingredient of Section 304 (Part 2) of the Indian Penal

Code and not under Section 302 of the Indian Penal

Code.

(II).The submission has been made that blood

stained earth or the cloth were not sent for their

chemical examination as such serious prejudice has

been caused to the appellant, therefore on this

ground the judgment of conviction and order of

sentence requires interference by this Court.

(III).Further submission has made that the appellant

and the family of the deceased were in the drunken

stage while celebrating the festival of Holi and as

such it cannot be said that what has been done by

the appellant is in his correct state of mind. This fact

ought to have been taken into consideration by the

learned trial Court but having not done so the

impugned judgment requires interference on this

ground.

10. While on the other hand, Mr. Abhay Kumar Tiwari,

learned Public Prosecutor appearing for the respondent-

State has submitted that there is no error in the

impugned judgment of conviction and order of sentence

since the learned trial Court after taking into

consideration the testimony of eye witnesses to the

occurrence passed the impugned judgment of conviction

and order of sentence, as such as per the law settled that

in case conviction is based upon the testimony of eye

witnesses even the blood stained earth and other

incriminating articles were not sent for its chemical

examination before the Forensic Science Laboratory the

prosecution story will not vitiate.

So far as argument advanced on behalf of appellant

that ingredient of Section 304 (Part 2) is available and as

such the impugned judgment requires interference,

submission has been made that if the testimony of eye

witnesses supported by the testimony of Investigating

Officer is taken into consideration it cannot be said that it

is a case of commission of crime said to have been found

under the fold of Section 304 (part 2) rather it is a clear

cut case falling under Section 302 of the Indian Penal

Code and after considering the aforesaid aspect of the

matter the learned trial Court has passed the impugned

judgment, which requires no interference by this Court.

11. We have heard learned counsel for the parties,

perused the material available on record more

particularly, the testimony of the witnesses, the post-

mortem report as also the inquest report and the finding

recorded by learned trial Court.

12. This Court before considering the argument

advanced on behalf of the parties is now proceeding to

consider the testimony of witnesses, in particular eye

witnesses, as per the testimony recorded by learned trial

Court.

P.W. 1- Mohan Lohra; is the hearsay witness, who

has corroborated the version of prosecution.

P.W. 2-Kallu Lohra, is named as an eye-witness to

the occurrence in the F.I.R. He, in his examination-in-

chief, has stated the occurrence took place on the issue of

playing loudspeaker. He has further deposed that the

accused Jitu damaged the loudspeaker and when

Chintamani's wife, Budhni (deceased) was trying to stop

him, accused-Dhani Ram reached there and gave a tangi

blow on the head of Budhni as a result of which blood

started to rush out from the wound. At paragraph 2, he

has deposed that they took Budhni to the Police Station

wherefrom she was taken to hospital.

During examination, he identified the accused Jitu

but initially refused to identify the accused Dhani Ram,

however, later identified him.

In course of cross-examination at paragraph 6 he

has deposed that he did not see Dhani Ram (accused)

inflecting injury upon the deceased with his own eyes.

Therefore, the testimony of this witness was not

taken into consideration by the prosecution.

P.W. 3-Chintamani Lohra is the husband of the

deceased-Budhani Devi and is one of the eye witnesses to

the occurrence. He has deposed that the accused Jitu

throw the loudspeaker and told Dhani Lohra to kill

Budhni. He further deposed that his wife (deceased) asked

Jitu to stop him. He further deposed that Dhani came out

of his house with tangi and gave tangi blow on the back of

the head of his wife as a result of which she fell down on

the ground. He has further stated that he tied cloth on the

wound and took her to the Police Station with the help of

his sons and nephew wherefrom Sub-Inspector of Police

took her wife to hospital where she died after 21 days of

the occurrence.

In the cross-examination the defence could not

shake his version as stated in examination-in-chief.

P.W. 4-Dr. Ajit Kumar Chaudhri, is the doctor who

conducted post mortem on the dead body of the deceased.

He found following injuries on the person of Budhni Devi:

(i).Abrasion with scalp 4X2 c.m. on frontal head.

(ii).Stitched wound (L shaped) 18 X ½ c.m. X bone deep on the fronto-parieto region of head underneath there is a bony gap measuring 1X 8 c.m. on both partial region of head.

There was infection of brain underneath the bony

gap and brain cavity contained pus.

The doctor has opined that all the injuries were ante

mortem. Abrasion was caused by hard and blunt

substance and opinion regarding stitched internal injuries

can be have from the surgeon concerned.

The death was caused due to head injury.

P.W. 5- (Rishun Lohra) is the informant of the case. He

has stated the same version as has been given in

fardbeyan.

He has deposed that Jitu reached there and wanted

playing of the loudspeaker to be stopped. He has further

stated that Jitu reached there and throw the set of

loudspeaker and when her mother wanted to stop Jitu

accused Dhani Ram came out of his house and gave tangi

blow on the head of his mother as a result of which his

mother fell down on the ground. He has further stated

that his mother was taken to police station wherefrom she

was taken to hospital and his statement was recorded by

the police in presence of Sohan who had accompanied

with him to the hospital. According to him Sohan put his

signature on his statement.

In cross-examination at paragraph 5, he has

specifically deposed that occurrence took place in his

presence as well as in presence of his wife (P.W. 6-

Jhakhan Lohrain); father (P.W 3-Chintamani Lohar) and

Kallu Lohra (P.W. 2).

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P.W. 6-Jhakhan Lohrain is the daughter-in-law of

the deceased. She has fully supported the prosecution

version. The defence did not shake her testimony in cross-

examination.

P.W. 7-Chandrashekhar Lohra is also named eye

witness in the F.I.R. He in his examination-in-chief has

stated that occurrence took place due to use of

loudspeaker. He also deposed that accused Jitu threw the

loudspeaker and damaged the same with hammer and

when his grandmother went to stop him, accused Dhani

Ram reached there and gave tangi blow on the head of his

grandmother as a result of which she fell down on the

ground and became unconscious. He further deposed that

after 23 days of occurrence his grandmother died in

hospital. No contradiction has been found even in the

suggestion given by the defence and he had categorically

denied that he was not present at the place of occurrence.

P.W. 8-Md. Kalam, is the investigating officer of the

case. He visited the place of occurrence and gave the

description of place of occurrence in his testimony. He has

identified his handwriting on the formal F.I.R and also

identified the signature on the F.I.R of the Officer-in-

Charge, which was marked as Exhibit 3. He further

identified his handwriting on the fardbeyan which bears

the signature of Officer-in-charge, which has been marked

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as Exhibit 4. On the place of occurrence, he seized the

blood stained earth and one Saari and prepared the

seizure list, upon which the witnesses Mohan Lohra and

Hazrat Ali put their signature. He identified his

handwriting and signature which has been marked as

Exhibit 2.

He further deposed that on 23.03.1991 he received

the inquest report of deceased-Budhni Devi which bears

the handwriting and signature of Officer-in-Charge,

Bariatu Police Station, which was identified by him and

marked as Ext. 6.

13. It appears from the testimony of the prosecution

witnesses, in particular, P.W. 3-Chintamani Lohra

(husband of the deceased); P.W 5-Rishun Lohra (son of the

deceased); P.W. 6-Jhakhan Lohrain (daughter-in-law of

the deceased) and P.W. 7- Chandrashekhar Lohra

(grandson of the deceased) who are the eye witness to the

occurrence and had seen the occurrence that they are

consistent in their testimony and fully supported the

prosecution version.

It further appears from the cross-examination of

these witnesses that there is no major inconsistency in

their cross-examination as recorded in examination-in-

chief of the eye witnesses.

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It also appears that the testimony of eye witnesses

finds corroborated with the testimony of doctor who had

treated the deceased in injured condition and found the

injury as has been stated by the prosecution witnesses.

Further the post mortem finds corroboration with the

prosecution version to the effect that the injury found on

the body of the deceased is ante mortem in nature and the

death has caused due to head injury hit by hard and

blunt substance.

14. The learned trial Court considering the testimony of

eye witnesses as also the testimony of doctor and

investigating officer, who had prepared the inquest report

and visited the place of occurrence and seized blood

stained earth and cloth and prepared seizure list in

presence of witnesses, which has been identified by him

during examination-in-chief, has passed the impugned

judgment of conviction and order of sentence.

15. The learned counsel for the appellant has taken the

ground that the prosecution version even if taken in

entirety then also it cannot be said that ingredient of

Section 302 of the Indian Penal Code is attracted rather at

best there is ingredient of Section 304 (part 2) of the

Indian Penal Code.

16. We, in order to appreciate the aforesaid argument

consider the exceptions so referred in Section 300 of the

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Indian Penal Code for the purpose of considering the case

of homicide, wherein five exceptions have been given

which reads as under:

300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- 2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-- First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and

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causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Emphasis has been given by learned counsel for the

appellant on the Exception No. 4 to the effect that

culpable homicide not amounting to murder as the case

according to learned counsel for the appellant herein can

be assessed with the given case.

17. We have considered the testimony of eye witnesses

and after considering the prosecution version, which has

been corroborated by the testimony of the eye witnesses,

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have found that the dispute arose on the issue of playing

of loudspeaker. The appellant and his brother told the

informant party not to play loudspeaker to which they

denied saying that is a festival of Holi so let the

loudspeaker be played. But the accused persons being

aggrieved thereof started to damaged the loudspeaker.

Then the deceased (Budni Devi) came in picture and

forbade to do so saying that is a festival of Holi. Upon

this, the appellant-Dhani Ram Lohra had gone to his

house and came out with tangi and assaulted the

deceased from her behind. The deceased fell down on the

ground in unconscious condition and was brought to

police station wherefrom the injured was admitted to

hospital where during treatment after about 22 days she

succumbed to injuries

18. The question of not considering such incidence to

bring in the fold of culpable homicide and not to treat as

murder according to our considered view is not available,

which is self explanatory from the conduct of the appellant

that on being asked by the deceased not to quarrel he had

gone to his house and came out with tangi and gave tangi

blow on the head of the deceased from her back side.

19. The matter would have been different if in course of

fight amongst the parties any injury would have caused.

Herein, the appellant with the specific intention had gone

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to his house and came with tangi in his hand and

assaulted the deceased on her head from the back due to

which the deceased fell down and in course of treatment

in hospital she succumbed to injuries.

Reference in this regard may be taken to the

judgment rendered by Hon'ble Apex Court in Sukhbir

Singh vs. State of Haryana reported in (2002)3 SCC

327, wherein at paragraph 17, it has been held as under:

"17. To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.

[Emphasis supplied]

Therefore, we find no force in contention of the

learned counsel for the appellants that the alleged crime

was not committed in furtherance to premeditated plan

and such action of the appellant cannot be said to be not

committed with the intention to cause murder of the

deceased.

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20. This Court on the basis of aforesaid discussion as

above is of the view that it is not a case where the

culpability as was committed by the appellant is to be

considered to be under Exception IV to Section 300 of the

Indian Penal Code.

Accordingly, the argument made to this effect by

learned counsel for the appellant is not acceptable and is

hereby rejected.

21. The other argument advanced by learned counsel for

the appellant is that since blood stained soil and cloth

which were seized by the Investigating officer were not

sent for its chemical examination before the Forensic

Science Laboratory it vitiates the prosecution story. But

law is well settled in this regard that if the judgment of

conviction and order and sentence is based upon the

testimony of eye witness(es) then merely not sending the

blood stained earth and/or cloth will not vitiate the entire

prosecution version.

Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in the case of Surendra

Paswan Vs. State of Jharkhand [(2003) 12 SCC 360],

wherein at paragraph 9, it has been held as under:

9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the

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investigation but does not corrode the evidentiary value of the eyewitnesses. The investigating officer did not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.

[Emphasis supplied] The Hon'ble Apex Court in the judgment rendered in

Dhanai Singh Vs. State of Punjab reported in {2004) 3

SCC 654 at paragraph 7 held as under:

"7. As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh. As noted in Amar Singh case it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version."

[Emphasis supplied] Likewise, the Hon'ble Apex Court in the judgment

rendered in Sheo Shankar Singh Vs. State of

Jharkhand [(2011) 3 SCC 654], at paragraph 56 held as

under:

"56. The same view was expressed by this Court in Surendra Paswan v. State of Jharkhand. In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because

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the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eyewitnesses."

This Court on the basis of aforesaid principle as

settled by Hon'ble Apex Court as referred hereinabove,

since here the conviction is based upon the testimony of

eye witnesses, therefore, for not sending the blood stained

earth and cloth to Forensic Science Laboratory for its

chemical examination the prosecution case will not vitiate.

22. This Court, after having discussed the fact as also

the testimony of eye witnesses and the legal position as

referred hereinabove and after taking into consideration

the finding recorded by learned trial Court, is of the view

that since the judgment of conviction and order of

sentence is based upon the testimony of the eye witnesses

duly been corroborated by the testimony of investigating

officer and the doctor based upon which the trial court

since has reached to the conclusion that offence has

found to be proved beyond all shadow doubt, the

impugned judgment of conviction and order of sentence

requires no interference by this Court.

23. This Court, after having passed the order as

aforesaid has considered the sentence and found

therefrom that the order of sentence to undergo rigorous

imprisonment for life the offence committed under Section

302 of the Indian Penal Code suffers from infirmity,

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reason being that Section 302 provides that along with the

sentence of rigorous imprisonment of life, the fine is also

mandatory to be inflicted as would appear from Section

302 of the Indian Penal Code, which reads as under:-

"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."

24. The trial Court while imposing the sentence has not

considered the mandatory provision as contained under

Section 302 of the Indian Penal Code and passed the order

of sentence without inflicting any fine, therefore, the order

of sentence is modified to the extent that apart from the

sentence to undergo rigorous imprisonment for life, a fine

of Rs.5000/- (Rupees Five Thousand) to the appellant, is

hereby imposed.

25. With the aforesaid modification in the order of

sentence, the instant appeal stand dismissed.

26. Consequent upon dismissal of the appeal since

appellant is enjoying suspension of sentence after the

order being passed by this Court directing to release them

during pendency of the appeal, his bail bonds is cancelled

and he is directed to surrender before the learned trial

Court who would send him jail to serve out his remaining

sentence.

27. Needless to say that if the appellant will not

surrender, the trial Court will take endeavours for

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securing custody to serve out his remaining sentence and

further secure that he deposit the amount of fine so

imposed by this Court.

28. Let the Lower Court Records be sent back to the

Court concerned forthwith, along with the copy of this

Judgment.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Alankar / A.F.R.