Cr. Appeal D.B. No. 464 of 2002
Against the Judgment of conviction and order of Sentence
dated 11.07.2002 respectively, passed by learned Additional
District & Sessions Judge, Fast Track Court no. II,
Jamshedpur, East Singhbhum, in Sessions Trial No. 211 of
2000.
1. Amarjeet Singh @ Ambe
2. Paramjeet Singh @ Pamme.
3. Prem Singh @ Pammi.
4. Gurnam Singh ( died during pendency of the appeal)
..Appellants
Versus
The State of Jharkhand ..........Respondent
For the Appellants : Mr. Ajit Kumar, Advocate
For the State : APP
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PRESENT
The Hon’ble Mr. Justice R.K. Merathia
The Hon’ble Mr. Justice P.P. Bhatt.
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C.A.V. On 24.8.2011 Delivered on 1/9/2011 R.K.Merathia, J This appeal is directed against the judgment of
conviction and order of sentence dated 11.07.2002, passed by
learned Additional District & Sessions Judge, Fast Track Court no. II,
Jamshedpur, East Singhbhum, in Sessions Trial No. 211 of 2000,
convicting the appellant nos. 1 to 3 under section 302/34 of IPC and
appellant no. 4 under section 302/109 of the IPC and sentencing
them to undergo imprisonment for life.
2. The prosecution case, in brief, is that the informant-Paramjeet
Singh @ Lucky ( P.W-9) gave a fardbeyan ( Ext-3) before the police
on 8.11.1999 at 6 P.M. in Tata Medical Hospital ( TMH), Jamshedpur
to the effect that at about 3.30 P.M. he and his elder brother-Satnam
Singh ( deceased) were sitting along with others on the “Chabutra” of
the Chakki Mill situated behind Kali Puja Pandal at Tulsi Chowk of No.
10 Basti. In the meantime, the appellants, residents of the same
Basti, came with swords in their hands and started assaulting the
deceased. Appellant nos. 1, 2 and 3 assaulted by swords on the face,
head and other parts of the body repeatedly, due to which, the
deceased fell down on the ground in precarious condition. Appellant
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No. 4 was instigating his sons ( appellant nos. 1, 2 and 3) not to leave
the deceased alive. The deceased had fallen down. Even then he was
assaulted with swords. Only when the appellants felt that deceased
had died, they fled away. The mother of P.W-9-namely Gurmeet Kaur
( P.W-1) and Bhabhi-Reshma Kaur(P.W-6) also reached there and saw
the occurrence. Other persons of the neighborhood had also seen the
occurrence. The informant along with others took the deceased to
T.M.H. Hospital for treatment, where he died just before lodging the
FIR. It was further alleged that the reason behind the occurrence was
a quarrel between the deceased and the appellants in the last night
and therefore the appellants with common intention have killed the
deceased.
3. Charges were framed under sections 109 & 302/34 IPC against
appellant no. 4-Gurnam Singh and under section 302/34 against
appellant nos. 1, 2 and 3, to which they pleaded not guilty and
claimed to be tried. Their defence was that they are innocent and
have been falsely implicated in the case.
4. The prosecution has examined 14 witnesses. Certain
documents have also been exhibited. The Material Ext. ( two swords)
was also produced before the trial court.
5. Learned counsel appearing for the appellants assailed the
impugned judgement on various grounds. He submitted that the
prosecution has not proved the motive; the place of occurrence has
also not been clearly established; P.Ws. 1 and 6 claimed tobe eye
witnesses but they are not; independent witnesses were available but
only the interested witnesses have been examined; the prosecution
has not explained the abrasions found by the doctor in the
postmortem report; the earliest report about the alleged occurrence
has been suppressed by the prosecution; FIR was lodged before the
Officer in charge Sidhgora Police Station in Tata Main Hospital ( TMH
for short) whereas the police camp was available at the T.M.H. It was
lastly submitted that at best the appellants could be convicted under
section 304 Part II IPC.
6. On the other hand, learned counsel for the State supported the
impugned judgement.
7. The submissions made on behalf of the appellants are not
acceptable for the following reasons.
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8. P.W-1-Gurmit Kaur is the mother of the deceased. She inter alia
said that when she along with her daughter in law (P.W-6-Reshma
Kaur) were in their house, they heard some “hulla” outside and heard
Paramjeet Singh crying “Bachao Bachao”; they rushed and saw that
the appellant nos. 1, 2 and 3 were assaulting the deceased with
swords and appellant no. 4 was instigating them to kill.
In cross-examination, she said that a Kali Puja Pandal was near
to her house, at about half kilometer. It appears that an attempt was
made to confuse this witness about the place of occurrence.
However, she said that the occurrence took place at the ‘Chakki’
besides Kali Puja Pandal. Her son Paramjeet Singh (P.W-9) was trying
to save the deceased when sword blows were given. Other persons
were also present but no body intervened. P.W-9 took the deceased
to hospital. She was weeping and was not her in full senses.
9. P.W-2-Ganesh Kumar is resident of the same Basti. He inter alia
said that he saw the occurrence, in which appellant nos. 1, 2 and 3
were assaulting the deceased by swords and appellant no. 4 was
instigating them and that when people assembled, they fled away
throwing swords. At the time of occurrence, P.W-1, 6 and 9 were
present.
In cross examination, he said that it was seen from the place of
occurrence that P.W. 1 was coming from her house. He also tried to
save the deceased. First assault by sword was done suddenly. The
appellants threatened this witness of dire consequences if he
intervened. Harjeet Singh ( P.W-3) and others took the deceased to
the hospital. The occurrence took place near Kali Puja Pandal. This
witness admitted that he was in jail thrice in connection with arms
act case; one ‘Marpit’ case and one ‘Daru wala’ case. Police seized
sword from the place of occurrence.
10. P.W-3-Harjeet Singh is inquest witness. He also said that on
“hulla” he came outside of his house and saw that there was crowd
and ‘Jhagda’ was going on. He was not in a position to say as to who
assaulted to whom and by which weapon, but sword blows were
being made causing injuries to the deceased who died in the hospital.
11. P.W-4 is Karnail Singh. He inter alia said that on the date of
occurrence he went to meet Surjeet Singh in 10 No. Basti. On “hulla”
when he reached near the place of occurrence, he saw that three
persons were assaulting the deceased by swords and one lady and
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one boy were crying not to assault. Appellant no. 4 was instigating
the three persons to assault. Appellant nos. 1 to 3 assaulted the
deceased by swords, due to which he sustained injuries and died in
the hospital after about 2-3 hours.
In cross-examination, he said that he lives at about 5 K.M. from
the place of occurrence. The deceased was his nephew. He said that
there was a “Chakki” near the place of occurrence. There was blood
on the stairs. The occurrence took place at about ½ kilometer from
Kali Puja Pandal. P.Ws.1 and 9 were already there and were crying.
12. P.W-5-Billu Agrawal is a hearsay witness, about the occurrence.
13. P.W-6-Reshma Kaur is the wife of the deceased. She said that
when she with P.W.1 were in their house, on ‘Hulla’ of informant,
they rushed running to the place of occurrence. She saw the
appellants 1 to 3 assaulting her husband(deceased) by sword.
Appellant no. 4 was instigating them. She inter alia said that one of
the appellants fled throwing his sword and other two fled with
swords.
In cross-examination, she said that the place of occurrence is
near Kali Puja Pandal. P.W-4 Karnail Singh is her maternal uncle and
he was also present at the place of occurrence.
14. P.W-7-Surjeet Singh is resident of the same Basti. He said that
on ‘Hulla’, he came out of his house, and then saw that the
appellants 1 to 3 were assaulting the deceased by sword. He inter
alia said that P.Ws 1, 6 and 9 were also there and were crying not to
assault the deceased.
In cross-examination, he said that the deceased was his cousin.
They live in the same house/holding number, with partition. At the
time of assault, the deceased could not run away and he was killed
within 15-20 ft. from Atta Chhaki. The deceased fell down near Aina
Godown while running. There, he was again assaulted by sword.
There was blood near Godown of Aina Press. There was also blood
near the stairs in front of the Chakki. From there up to Aina Press,
blood was spilled, up to which the deceased could run. The sword
blows were given at the chest and there were injuries on the hands
also.
15. P.W-8-Raj Kumar Sharma is a hearsay witness, to the
occurrence.
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16. P.W-9-Paramjeet Singh is the informant. He fully supported the
FIR. He inter alia said that on 8.11.1999 at about 3.30, he with his
elder brother (deceased) and others were sitting on the Chabutra of
Chaki. The Ata Chaki is near Tulsi Chowk in 10 No. Basti. The
appellant nos. 1, 2 and 3 came. The appellant nos. 1, 2 and 3 came
with swords in their hands. Appellant no. 4 was instigating them to
kill. Appellant nos. 1,2 and 3 inflicted sword injuries on the body of
the deceased. On his alarm, P.Ws, 1, 4, 6, 7 and others reached at
the place of occurrence. This witness further said that on receiving
injury, the deceased started running and he fell in front of Aina Press,
where, again he was assaulted. When people assembled, appellants
fled away. The deceased was taken to T.M.H. where he died after
about 1 and ½ hours. The reason for incident was that in the previous
night, there was some quarrel between the appellants and the
deceased. The deceased was a convoy driver.
In his cross-examination, he said that out of several other
persons, only Ganesh Kumar ( P.W-2) is a witness in this case. There
was no sword in hand of appellant no. 4-Gurnam Singh.
17. P.W-10-Parsuram Paswan is the Investigating Officer. He
described the place of occurrence. He found blood at the place of
occurrence. He also found two sharp edged swords, which have been
marked as material Exts.1 and 1/1. On the swords, there was no
blood stains and there was rust. This witness also said that the house
of the deceased is about 100 yards from the place of occurrence. He
has marked a portion of the case diary as Ext.-A. In his cross-
examination, he said that he did not seize blood stained soil.
18. P.W-11- Akhilesh Kumar is the Doctor who conducted
postmortem. He found the following injuries.
Abrasions on knee, leg, arm and forearm etc. (He proved the
postmortem report Ext-7). He found 14 incised wounds on vital parts
of the body such as face and head including three injuries over palm,
thumb and fingers. Doctor opined that the said injuries were ante
mortem. The abrasions were caused by hard and blunt substance
and incised wounds were caused by heavy sharp cutting weapons.
The death was due to head and facial injuries.
19. P.Ws.-12 and 13- namely S. Shankar Ray and Kamaljeet Singh
are witnesses to the seizure of two swords.
20. P.W-14-Rakesh Kumar is witness to the Fardbeyan.
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21. Two swords were marked as material exhibits 1 and 1/1. The
Fardbeyan is Ext-3. Formal FIR is Ext-4. Inquest Report is Ext-5.
Seizure list is Ext-6 and the Postmortem Report is Ext-7 along with
signatures of the witnesses thereon.
22. The defence exhibited the information sent to the police by the
Hospital ( Ext-A).
23. Motive- The prosecution has proved that the motive behind the
occurrence was some quarrel between the deceased and the
appellants in the previous night. Moreover, as the eye witnesses have
proved the prosecution case, the question of motive takes back
stage.
24. Eye Witnesses- The relative eye witnesses P.Ws, 1, 4, 6, 7 and
9 cannot be brushed aside only because they are related to the
deceased. They have stood the test of cross-examination and have
fully supported the prosecution case. Apart from them, P.W-2-Ganesh
Kumar is an independent eye witness. He also proved presence of
other eye witnesses. It appears that on being asked, he said that he
was in jail thrice in connection with three cases under Arms Act, in a
case of ‘Marpit’ and in a case of liquor but for that, his evidence
cannot be discarded.
P.W-3 though admitted that he is a relative of the deceased but
he did not project himself as eye witness. If the prosecution wanted,
it could project him also as an eye witness.
About P.W-4-Karnail Singh, it is said that he lives at a far away
place and he became chance witness only because he is a relative of
the deceased, but this witness said that he came to meet P.W-7 on
8.11.1999 in 10 No. Basti. He heard ‘Hulla’ near Tulsi Chowk where
he found that appellant nos. 1,2 and 3 were assaulting the deceased
by sword who ultimately died after 2 1/2-3 hours in hospital.
It was contended that P.Ws. 1 & 6 could not hear the hulla/cry
and could not be eye witness as P.W. 1 said that the distance
between her house and the place of occurrence was about ½ K.M.
P.W. 1 is a rustic house wife. The Investigating Officer said that such
distance was about 100 yards. P.W. 2 said that from the place of
occurrence, it was visible that P.W.-1 was coming from her house.
P.W. 1 & 6 said that they came running at the place of occurrence.
25. Place of occurrence- The witnesses have consistently proved
the place of occurrence. It may be noted here that P.W-7 stated in his
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evidence that the deceased while being inflicted by sword injuries
could not run and he fell within 15-20 ft. and blood spilled at the
places the deceased was assaulted and he tried to run and fell.
P.W-9 also said that on receiving injuries, the deceased started
running and fell in front of Aina Press. Thus, it appears that the place
of occurrence is spread between the places where the deceased was
assaulted, he ran for his life; he fell on the ground; and where he was
again assaulted. This position also find support from the postmortem
report in which abrasions on knee, leg, arms and forearms and three
incised injuries on palm, thumb and fingers were found, which the
deceased must have received while trying to run and save himself.
Thus, it is not possible to accept the contention of the appellants that
the place of occurrence has not been proved by the prosecution.
26. On the first information received by the police- It appears from
paragraph 3 of the case diary that at about 4 P.M. on 8.11.1999, the
telephonic information was received that some untoward incident
had taken place in 10 No. Basti near Kali Puja Pandal at Tulsi Chwok,
which was registered as Station Diary No. 186 dated 8.11.1999 and
the police proceeded towards the place of occurrence. Such vague
information on telephone cannot be treated tobe first information
and it cannot be said that the prosecution has suppressed the first
information. It further appears that on such information, police
reached at the place of occurrence and then at TMH and therefore
the fardbeyan was recorded before the officer in charge at ‘Camp
TMH’. It further appears that immediately on the death of injured,
the FIR was lodged.
27. The submissions for converting the conviction under section
304 Part II IPC is also not acceptable. There was some quarrel in the
previous night of the occurrence, and not at the time of occurrence.
The appellants came prepared with swords. They assaulted the
deceased indiscriminately by swords causing about 13 incised
injuries on him. The incised injuries on palm, thumb and fingers
indicate that the deceased tried to save himself. The abrasions
corroborate the evidence that he tried to run for life and fell. On
considering the entire material, it is not possible to convert the
conviction into Section 304 Part II IPC, as this case does not fall
within Exception 4 of Section 300 IPC.
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28. It may be noted here that the Doctor found 5 abrasions
caused by hard & blunt substance and 13 incised injuries caused by
heavy sharp cutting weapon, on the body of the deceased which
includes about 4 injuries on head and 5 on face. Such injuries could
not be caused by one accused. Otherwise also Section 34 IPC is
attracted in this case.
29. Thus the prosecution has fully proved it’s case against the
appellants. There is no reason for false implication. Some minor
contradictions were pointed out, but on those, the prosecution case
cannot be brushed aside.
(Learned counsel for the appellants did not press this appeal on
behalf of appellant no. 4, saying that he died during pendency of the
appeal. )
30. Learned trial court, did not impose fine. Learned counsel for the
appellants was noticed and heard on this aspect.
31. In the result, this appeal is dismissed. However, a token fine of
Rs.1000/- is also imposed on appellants 1, 2 and 3, and in default,
they will undergo simple imprisonment of one month.
( R.K. Merathia, J)
I agree
( P.P. Bhatt, J) ( P.P. Bhatt, J)
Jharkhand High Court, Ranchi
Dated the 1st September, 2011
/
Rakesh NAFR