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PATNA HIGH COURT
S.H.S.Abidi and Nagendra Rai JJ.
Ganesh Ram @ Ganesh Chamar
Versus
State Of Bihar
Criminal Appeal No. 81 of 1987 ;
Decided On : MARCH 16, 1989
The court altered the conviction of the appellant from Sec. 302 to 325 of the Indian Penal Code due to the non-appearance of the doctor and investigating officer, which resulted in the failure to establish the cause of death. The court held that the appellant's assault on the victim with a lathi, causing her head to break and leading to her death, constituted an offense under Sec. 325, I.P.C. The court sentenced the appellant to 5 years of rigorous imprisonment, considering the time already spent in jail and the need for deterrence.
Fact of the Case:
The appellant was convicted under Sec. 302/34 of the Indian Penal Code for the murder of a woman. The prosecution's case was that the appellant took the victim inside his house and assaulted her with a lathi, causing her death. The defense denied the prosecution's case and claimed that the victim was entangled with the appellant and that the informant and others had assaulted her, leading to her death. The doctor and investigating officer did not appear in court, and the postmortem report was proved by a clerk.
Finding of the Court:
The court found that the prosecution had established that the victim was assaulted by the appellant with a lathi, causing her head to break and leading to her death. However, due to the non-appearance of the doctor and investigating officer, the court could not determine the nature of the injuries and the cause of death. Therefore, the court altered the conviction from Sec. 302 to 325 of the Indian Penal Code, which deals with causing grievous hurt.
Issues: 1. Whether the prosecution had established the guilt of the appellant beyond a reasonable doubt. 2. Whether the non-appearance of the doctor and investigating officer affected the prosecution's case. 3. What was the appropriate sentence for the appellant.
Ratio Decidendi: 1. The court held that the prosecution had established that the appellant had assaulted the victim with a lathi, causing her head to break and leading to her death. This was based on the testimony of eyewitnesses who saw the appellant assaulting the victim. 2. The court found that the non-appearance of the doctor and investigating officer affected the prosecution's case because it prevented the court from determining the nature of the injuries and the cause of death. This made it impossible to establish that the appellant's actions had caused the victim's death, which was necessary for a conviction under Sec. 302 of the Indian Penal Code. 3. The court held that the appropriate sentence for the appellant was 5 years of rigorous imprisonment, considering the time already spent in jail and the need for deterrence.
Final Decision: The court altered the conviction of the appellant from Sec. 302 to 325 of the Indian Penal Code and sentenced him to 5 years of rigorous imprisonment.
S.H.S.Abidi, J.
1. Appellant-Ganesh Ram @ Ganesh Chamar has been convicted under Sec. 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Other accused, namely, Dhanesh Chamar, Etwaru Chamar and Dashrath Chamar were also chargesheeted but they absconded, and hence the case proceeded only against the appellant.
2. The case of the prosecution was that on 23.3.1984 at about 10.30 a.m. in village Itbandh, police-station Hussainabad, district Palamu, the victim Smt. Sahodari Devi wife of Sudarshan Ram and sister-in-law of Lakhan Ram (P.W. 4) was going to Japla Bazar from her house and when she reached in front of the house of the appellant Ganesh Ram, the accused took her inside the house and then she was assaulted. She cried. The informant also reached there and saw that the appellant was assaulting her with lathi on the head. Other accused had given fits and kicks. The informant got her relieved from their clutches and raised alarm which attracted Raghuni Ram, Charitar Ram and others, whereupon the accused ran away. She had received severe injuries and became unconscious. Then she was taken to Hussainabad Hospital but died in way. The Doctor declared her dead. The motive of the offences was said to be old enmity and property dispute. Thereafter the victim was taken to the police-station and first information report (Ext. 4) was lodged on 29.3.1984 at about 2.30 p.m. against the appellant, Dhanesh Chamar, Etwaru Chamar and Dasrath Chamar under Sec. 302/34 of the Indian Penal Code (for short I.P.C.) at Hussainabad police-station, whereafter investigation proceeded. The postmortem examination (Ext. 5) had been conducted by Dr. S.A. Hatiz, Assistant Civil Surgeon, Sadar Hospital, Daltanganj on 30.3.1984 at 9 a.m.. Though the said Doctor has not been examined but the postmortem report has been proved by P.W. 8 Ram Kishore Pandey, Taid (clerk) to the Advocate. After investigation chargesheet was sumitted by Satyendra Singh Sub-Inspector of Police who has also not been examined as witness.
3. The accused, in defence, denied the prosecution case. From the trend of the cross-examination of the prosecution witnesses and the statements recorded under Sec. 313 of the Code of Criminal Procedure and the evidence produced on behalf of the defence it appears that the informant and others had suspicion that the deceased Sahodari Devi was entangled with the appellant. At the time of occurrence she had gone to the house of the appellant to take fire and then the informant and others reached there and assaulted her as well as the appellant Ganesh Chamar with lathi resulting into her death and very serious injuries to the appellant. Had the appellant been not treated at Sadar Hospital, Daltanganj and Ranchi Medical College Hospital, Ranchi, he would have not been saved. It was to cover up his own deeds that the informant has lodged the first information report in collusion with the police. Later on the appellant-Ganesh Chamar had filed complaint Case No. 279/1984 in the court of the learned Chief Judicial Magistrate, Daltonganj. The defence in support of its case examined two witnesses, namely, Mababir Prasad Kushwaha (D.W. 1) and Mahesh Prasad Sharma (D.W. 2). D.W. 1 has said that the appellant was admitted in the Hospital on 29.3.1984 at 3.30 p.m. and was discharged from the Hospital on 31.3.1984 at 6 p.m. D.W. 2 is said to have examined the appellant on 31.3.1984 Ext. C is the injury report of the appellant.
4. The prosecution in support of its case has produced eight witnesses. P.W. 1-Ram Lal Rajwar, not named in the first information report, says that he had seen the victim being taken by the accused inside their house. P.W. 2 Charitra Yadava (named as a witness in F.I.R., has also said that he had seen the victim being taken inside the house of the appellant. P.W. 3 Laxaman Ram son of the deceased has been tendered from the cross-examination. P.W. 4 Lakhan Ram is the informant and dewar of the victim
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