KISHUN SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) BOTH the Criminal Appeals are arising out of the judgment and order of conviction and sentenced dated 4th and 6th August, 1999 respectively, passed by the learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 167 of 1989, by which, the appellants of Cr. Appeal No. 280 of 1999 i.e. Kishun Singh, Gondu Singh and Inder Singh have been convicted for the offence under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months whereas the sole appellant of Cr. Appeal No. 300 of 1999 i.e. Girja Singh has been convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also order to pay a fine of Rs. 500/ - and in default thereof further simple imprisonment of three months has been awarded. Against these convictions, the accused have preferred the aforesaid Criminal Appeals.

(2.) IF the case of the prosecution is unfolded, the brief facts of the case are as under: It is the case of the prosecution that on 23rd February, 1988 at 6.30 a.m. accused assaulted Laljeet Kandu (deceased), Latti Kandu (PW 6) and Murli Kandu (PW 5) as they were constructing a wall. The whole dispute has arisen because of the construction of the wall. The victims were under belief that the land belongs to them whereas accused were believing that the land is belonging to the accused side persons. There was hot altercation between the parties and thereafter, Laljeet Kandu sustained injuries, who has been declared dead later on. Accused No. 1, accused No. 3, accused No. 4 and accused No. 5 have also sustained several injuries and they were also taken to Sadar Hospital, Giridih. Likewise, injured eye witnesses i.e. PW 5 and PW 6 were also taken to the same hospital on a same date. Dr. B.P. Singh (PW 10), who is doctor at Sadar Hospital, Giridih, examined the prosecution witnesses as well as Laljeet Kandu as well as accused No. 1, accused No. 3 and accused No. 4 and thereafter Laljeet Kandu was referred to Rajendra Medical College & Hospital, Ranchi, where he was declared dead at the hospital at Ranchi on 24th February, 1988 at 11.30 a.m. It is also a case of the prosecution that accused No. 3 Girja Singh (appellant of Cr. Appeal No. 300 of 1999) was having sharp cutting instrument 'Farsa' and he caused head injuries to Laljeet Kandu, who fell down and further injuries were caused by the accused persons by stick upon Laljeet Kandu. PW 5 and PW 6 also sustained injuries. PW 2, PW 3, PW 4, PW 5 and PW 6 are saying that there was hot altercations between the family of Girja Singh and Laljeet Kandu. The victim side -Laljeet Kandu family were having spear, sword, stick and dagger whereas accused side was having Farsa and sticks in their hands. In this free fight Laljeet Kandu expired mainly due to head injury as per the evidence of the doctor (PW 10). First Information Report was lodged by Latti Kandu (PW 6) on 23rd February, 1988 at 8.15 a.m. at Sadar Hospital, which was registered as Giridih (Mofassil) P.S. Case No. 32 of 1988. The same was investigated and charge sheet was filed upon completion of investigation and upon recording the evidence, Girja Singh has been convicted for an offence punishable under Section 302 of the Indian Penal Code whereas Kishun Singh, Gondu Singh and Inder Singh were punished for an offence punishable under Section 323 of the Indian Penal Code for six months' rigorous imprisonment. Against this conviction Girja Singh has preferred Cr. Appeal No. 300 of 1999 whereas rest of the accused have preferred Cr. Appeal No. 280 of 1999.

(3.) WE have heard learned Counsel appearing on behalf of the appellants, who has mainly submitted that the prosecution has failed to prove the offence beyond reasonable doubts against the accused -appellants. There are lots of omissions, improvements and contradictions in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the trial court and hence the judgment and order of conviction and sentence, passed by the trial court, deserves to be quashed and set aside. It is also submitted by the learned Counsel or the appellants that there was no intention on the part of the appellants to commit the murder of the deceased nor there was any premeditation on the part of the accused. It is submitted by the learned Counsel for the appellants that PW 2, PW 3, PW 4, PW 5 and PW 6 have stated that there were injuries caused to accused. There was hot altercations between the accused side persons and victim side persons. Looking to the deposition of PW 5 (Murli Kandu), the victim side persons were having spear, sword, sticks and dagger in their hands. Looking to the deposition of PW 10 (Dr. B.P. Singh) accused No. 3 has sustained five injuries, including scalp deep injury, accused No. 4 has sustained four injuries (injury No. (ii) was a grievous injury), accused No. 1 was having five injuries (injury No. (i) could have been caused by sharp edged instrument like sword) and accused No. 5 has sustained eight injuries [injury Nos. (i), (ii), (iv) and (v) can be caused by sharp cutting instrument like sword and injury No. (v) was a grievous injury]. Looking to the deposition of PW 10 (Dr. B.P. Singh) injuries caused to the accused persons were within three hours from their examination. The doctor examined the accused persons on 23rd February, 1988 at 7.45 a.m. Thus, the whole incident has taken place because of sudden fight and the accused have not taken any undue advantage. It is also submitted by the learned Counsel for the appellants that Girja Singh has already undergone approximately twelve and half years imprisonment and, therefore, if the conviction is altered under Section 304 Part -II of the Indian Penal Code, looking into the evidence on record, the appellant of Cr. Appeal No. 300 of 1999 has no objection. In fact the trial court ought to have punished Girja Singh for the offence punishable under Section 304 Part -II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. The injuries caused to the accused side persons have not been explained by the prosecution. The injuries are several in number including grievous injuries. There is no premeditated or preplanned well designed action or any intention on the part of the accused. Only because of sudden fight the whole incident has taken place because of digging of a land for constructing a well as the boundary of the land, claimed by both the sides. This aspect of the matter has not been properly appreciated by the trial court.