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2019 Supreme(Jhk) 563
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RATNAKER BHENGRA, J.
Matlub Alam Son of Md. Hanif - Appellant
Versus
The State of Jharkhand - Respondent
Cr. (Jail) Appeal (S.J.) No. 578 of 2003
Decided On : 22-02-2019
.Advocate Appeared:
For the Appellant : M/S Ruby Pandey, Amicus Curiae
For the Respondent: Mr. G.S.Prasad, A.P.P.
Headnote:
Indian Penal Code,1860 –Section, 302 - FIR - Punishment - Case of prosecution as per informant who brother of deceased is that evening at about deceased was taking tea near Nursing home in tea stall of Jang - In meantime some altercation took place between deceased and accused and in course of it there was scuffle between them- In meantime accused assaulted deceased by bricks repeatedly three to four times on his head due to which deceased sustained injuries and fall down deceased was admitted to RMCH for treatment and subsequently he succumbed to his injuries basis of aforesaid a criminal case being case was registered and after investigation police submitted charge-sheet against accused- On submission of charge-sheet cognizance of offence was taken and case was committed to court of Sessions for trial- appellant pleaded not guilty and claimed to be tried –Held, Counsel said had also seen occurrence and therefore evidence fully corroborates evidence - counsel further said that post mortem report fully supportive of assault and injury that has been tendered by prosecution witnesses- inquest report also indicates that there was a mark of bleeding on his face- Counsel further pointed out from post mortem report that injury pointed out by doctor is lacerated wound of bone deep over face around right angle of mouth lacerating both upper and lower lips and there was fracture and dislocation of teeth- There was also bone deep lacerated wound over right side of chin and over nose and under line fracture of nasal holes- doctor has also opined that injuries were ante mortem caused by hard and blunt substance- counsel for State further submitted that appellant had only been sentenced and he should have been punished and therefore he has already been leniently punished and that too he had received remission and therefore his conviction needs to be fully sustained arguments of both parties and having gone through records case and in facts and circumstances of case I see that this is a case in which though informant is not an eye witness and though who is brother is also not an eye witness but there are other witnesses who are eye witnesses to occurrence and have justified assault post mortem report corroborates ocular evidence of both eye witnesses It has come in evidence that appellant assaulted deceased after an altercation so there was no intention of appellant to cause death of deceased- Therefore learned court below had rightly held him guilty of offence - Appeal dismissed
JUDGMENT :
RATNAKER BHENGRA, J.
1. When the matter was called out, nobody had appeared on behalf of appellant. However, counsel for the State Mr. Gauri Shankar Prasad was present.
2. Mrs. Ruby Pandey is appointed as amicus curiae to assist the court which she rendered.
3. Vide order dated 21.12.2018 it was observed that a report vide memo no. 6388 dated 17.9.2018 has been received from the Superintendent of Birsa Munda Central Jail, Hotwar, Ranchi that the appellant has served out his sentence and has been released on 25.5.2005 from the jail. Nevertheless, a communication was again sent to the appellant seeking to know whether he will contest the appeal on the point of conviction. A report vide memo no. 108/2019 dated 9.1.2019 has been received from the officer-in-charge, Bariatu, Police Station, Ranchi that the appellant has sold out his property and moved away from the locality. In view of the aforesaid two communications, this court proceeded with the instant appeal.
4. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 28.11.2001 and 3.12.2002 passed by Additional Judicial Commissioner -cum- Special Judge, IV, Ranchi in S.T. No. 281 of 2001 whereby and whereunder appellant namely Matlub Alam was convicted u/s 304 Part II IPC and sentenced to undergo R.I. for five years.
5. The case of the prosecution as per fardbeyan of the informant PW-6 Sayeed Muhammad Sajid who is brother of the deceased is that on 16.1.2001 in the evening at about 6:00 p.m. the deceased Saheed was taking tea near Alam Nursing home, in the tea stall of Jang Bahadur. In the meantime some altercation took place between the deceased and the accused and in course of it there was scuffle between them. In the meantime the accused assaulted the deceased by bricks repeatedly three to four times on his head due to which the deceased sustained injuries and fall down. The deceased was admitted to RMCH for treatment and subsequently he succumbed to his injuries.
6. On the basis of aforesaid fardbeyan a criminal case being Bariatu P.S. case no. 4 of 2001 was registered u/s 302 I.P.C. and after investigation the police submitted charge-sheet against the accused. On submission of the charge-sheet, cognizance of the offence was taken and the case was committed to the court of Sessions for trial. The appellant pleaded not guilty and claimed to be tried.
7. Prosecution has examined altogether ten witnesses to prove its case. PW-1 Md. Walayat Khan, PW-2 Md. Iqbal Khan, PW-3 Ramzan Khan, PW-4 Sanika Swansi, PW-5 Latan @ Rehman , PW-6 Sayeed Md. Sajid, the informant, PW-7 Sayeed Md. Khalid, PW-8 Ram Iqbal Monchi, the I.O. of the case, PW-9 ram Pukar Singh, A.S.I. and PW-10 Dr. Tulsi Mahto who had conducted autopsy of the deceased.
8. PW-3, PW-4 and PW-5 have been declared hostile.
9. PW-6 is the informant and younger brother of the deceased. He deposed that on the date of occurrence his brother went to the tea stall of Jang Bahadur for taking tea where accused demanded rangdari from the deceased for taking liquor. When his brother denien then the accused assaulted him on his head by bricks as a result he died. He further deposed that he came to know about it from one Md. Ibrar and reached at the place of occurrence. There he found his brother in injured condition who told him that the accused Matlub Alam had injured him by assaulting him with bricks. Thereafter he was taken to RMCH where he died during course of treatment. He denied the suggestion of defence that he had no talk with his deceased brother.
10. PW-1 is Md. Walayat Khan. He deposed that on the day of occurrence he was going to purchase medicine. He saw both the deceased and the accused taking tea. Thereafter altercation took place between them and the accused assaulted the deceased with brick three – four times as a result he sustained injuries. They rushed to rescue him. He further deposed that on receipt of the information, the brother of the deceased came. Deceased Sa
