The absence of independent witnesses and perverse findings regarding injuries led to the quashing of convictions under sections 304 Part II and 307 IPC, while sustaining the conviction under section 326 IPC.

11/Dated: 20th July, 2023

Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 22.06.2004/23.06.2004, respectively passed by the learned Additional District and Sessions Judge, Fast Track Court No.1, Gumla, in Sessions Trial No. 214 of 1998; whereby the appellant has been convicted and sentenced to undergo R.I. for 7 years for offence under section 304 Part II/34 IPC , R.I. 5 years for offence under section 307/34 IPC and 2 years R.I. for offence under section 324/34 IPC with a fine of Rs. 5000/- each, in default of which to undergo R.I. for 6 months. Further all the sentences were directed to run concurrently.

3. At the outset, it is stated that original appellant no.2, namely, Budhdeo Oraon had died and the instant appeal was dismissed as abated vide order of this court dated 09.02.2022.

4. The prosecution case in short is that on 30.04.1998 the informant’s son was cutting wood adjacent to her house, when accused persons armed with lathi and tangi came there and started assaulting him. On alarm, the informant and her husband came to save her son, but they were also assaulted. Her son and husband sustained injury on their head and she sustained injury on her wrist. The reason of assault was due to land dispute.

5.  Learned Amicus appearing for the appellant submits that this is a peculiar case where there is admitted rivalry between the two parties and admittedly there was a fight between both the parties on the ground of fencing of land. However, the learned trial court without going into intricacy of the evidences laid before him convicted the appellants for the offence punishable under Section 304 Part II/307/324 read with 34 IPC and sentenced them accordingly, but the fact remains that the place of occurrence was fully crowded due to fight, but for the reason best known to the prosecution no independent witness has been examined in this case.

Interestingly, P.W.4 had deposed that the Sarpanch, namely, Charwa and Gandur were present at the time of occurrence, but they have not been examined. Since, it was an admitted case of rivalry; thus, non-examination of independent witness as well as of the investigating officer highly prejudice the case of the appellant.

He further submits that by going through the deposition of the doctor, it clearly transpires that cause of death was injury no.2 i.e., embolism of right ventricle but as per the doctor the said injury was simple in nature. The doctor did not find any injury on vital part of the body of the deceased.

The learned trial court has completely ignored all these aspects and convicted the appellants on mere surmises and conjecture, as such the impugned order deserves to be quashed and set aside.

He lastly submits that by setting aside the conviction under 304 Part II/307/324, the sentence for other charges may be modified for the period already undergone.

6. Mr. Prabir Chatterjee, learned Spl. P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the appellant.

7. Having heard learned counsel for the parties and after going through the prosecution case, it appears that the allegation against the appellants were that on the date of occurrence which was a late afternoon i.e., 3 p.m. the appellants came with lathi and tangi and started assaulting the informant and her family members when son of the informant, Ram Oraon was cutting wood adjacent to his house.

From the deposition of P.W. 4 it is evident that there was previous dispute between the informant party and the accused and as a matter-of-fact P.W.4 was also in custody for murder of one of the accused, namely, Lordho. This deposition of P.W.4 does not leave any scope of confusion that there was enmity between the two sides.

8. Now coming on the contention of learned counsel for the appellant tha