Partly allowed

Ashok Yadav v. the State of Jharkhand

Jharkhand HC8 Aug 2024Cr.A(DB)/547/2015

Case brief

AI extract

What is this about?

The Criminal Division Bench re-examined evidence in an appeal against conviction for attempt to murder under IPC 307. Upholding the conviction, it modified the sentence from 10 years to 4 years, cancelled bail, and ordered surrender.

What did the court decide?

Conviction upheld; sentence reduced from 10 years to 4 years; bail cancelled; appellant directed to surrender and pay fine.

Ashok Yadav Vs the State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2024)

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Cr. Appeal (D.B.) No. 547 of 2015

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…..

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( Against the judgment of conviction dated 22.06.2015 and order of sentence dated 29.06.2015 passed by learned Additional Sessions Judge-IV, Garhwa in Session Trial Case No.165 of 2013-cum-Session Trial No.213 of 2013 ).

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……… Ashok Yadav, S/o Ram Chandra Yadav, R/o Village- Bahiyar Khurd, P.O. + P.S. Ramna, District- Garhwa ….. Appellant Versus The State of Jharkhand …. Respondent

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………

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For the Appellant : Mr. Anil Kumar, Advocate For the State : Mrs. Nehala Sharmin, Special Public Prosecutor

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PRESENT Sri Ananda Sen, J. Sri Gautam Kumar Choudhary, J.

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J U D G M E N T

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CAV On 25.07.2024 Pronounced On 08 /08/2024

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Per Ananda Sen, J. :

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The instant criminal appeal is directed against the conviction of the sole appellant under Section 307 of the Indian Penal Code vide judgment of conviction dated 22.06.2015 and order of sentence dated 29.06.2015, whereby the sole accused has been sentenced to undergo R.I. for ten years with a fine of Rs.5,000/- for the offence punishable under Section 307 of IPC and in case of default in payment of fine he has to undergo S.I. for six months.

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Learned counsel for the appellant submitted that there is no material to convict the appellant under Section 307 of the Indian Penal Code. All the witnesses are interested witness and related to the injured. The independent witness, Jagdeo Yadav has not supported the prosecution case and has been declared hostile. Surprisingly the incident occurred near the house of one Banarsi Paswan, but he has not been made a witness. He would have been the best witness to depose about the correct fact, but withholding him has given a death blow to the prosecution case. He further argues

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that as per the prosecution the stab wound was inflicted with sharp cutting weapon i.e. knife ( chhura ), but the same was not recovered from the possession of the appellant, the blood stained cloth was also not produced. It has further been submitted that even the Doctor’s report would suggest that there was only one injury, which would suggest that there was no intention on the part of the appellant to commit murder of the injured. From evidence, it is clear that there was a land dispute between the parties and there is high probability of false implication. It is the case of the appellant that the witnesses are old and they themselves admit that their eye sight is not good, thus as per the defence it is impossible for these witnesses to see the occurrence. Further there is no motive present in this case. On this background, the appellant prays for acquittal.

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Learned A.P.P. for the State submitted that only on the ground that the eye witnesses are related with the injured, this Court should not discard their statement. In the instant case, those eye witnesses, who are natural witness to the occurrence, their reliability cannot be questioned. The medical evidence also supports and corroborates with the ocular evidence. The opinion of the Doctor suggests that the injury is grievous and was dangerous for life, thus, as per the prosecution, offence under Section 307 of IPC is made out. The eye witnesses categorically stated that this appellant has assaulted the injured. In view of the clinching evidence, there is no ground to set aside the judgment of conviction and order of sentence.

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We have heard, the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit-2 and the same is at the instance of Subhagia Devi. In the fardbeyan she has stated that on 09.11.2012 at about 07.00 P.M. there was an altercation going on between Ashok Yadav and her husband Sheodutt Yadav on some issue. Her husband told Ashok Yadav that he would not go with him for drinking liquor and he has no faith upon him. Ashok Yadav told him that he would not repeat similar mistake, which has occurred earlier. The informant intervened and started moving therefrom along with her

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husband. Ashok Yadav also started following them. Sunil Yadav and Ashok Yadav moved ahead. Thereafter, Ashok Yadav came running and inflicted a knife blow in the stomach of her husband and fled away. Sheodutt Yadav told that Ashok Yadav had stabbed with a knife in his stomach. Thereafter, Nand Kishore Yadav came and told that the victim had assaulted his son, three years ago and he has taken the revenge. When Ram Briksh Yadav came there, they tried to catch the accused, Ashok Yadav. Bablu Yadav, Nagina Yadav and Manoj Yadav were also there in company of the accused. The informant stated that these accused had role in the occurrence. There was a land dispute pending since long between them.

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On the aforesaid fardbeyan , Ramna P.S. Case No.135 of 2012 was registered under Sections 147, 148, 323, 324, 307, 149 of IPC. The police after investigation filed chargesheet under Sections 147, 148, 323, 324, 307, 149 of IPC.

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As the appellant pleaded not guilty, charge was framed and he was put on trial. Nine witnesses have been examined in this case, who are as follows:-

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(i)P.W.-1- Kermatiya Devi (ii)P.W.2- Nageshwar Yadav (iii) P.W.-3- Lal Jee Yadav (iv)P.W.-4- Subhagiya Devi (informant) (v)P.W.-5- Shiv Narain Yadav (vi)P.W.-6- Sheodutt Yadav, victim- injured (vii)P.W.-7- Dr. Sameer Kumar (viii)P.W.-8- Jagdeo Yadav (ix)P.W.-9- Avnu Topno, I.O. of this case.

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P.W.-1 (Kermatiya Devi) is the mother of the victim- informant, who deposed that the occurrence is of 2012 on the evening of summer season. Sheodutt Yadav went to return the ox to son of Mahra, after ploughing his field, when Ashok Yadav gave a blow of knife in the stomach of Sheodutt Yadav. Nandkeshwar Yadav caught hold of the victim, Sheodutt Yadav during this occurrence. This witness and son of Nageshwar Yadav have seen the occurrence. After the occurrence, the accused persons fled from the spot. In her cross-examination, she

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admitted that she could not see well during night and as she is an old lady, she could not save the victim. She was standing near the victim.

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P.W.2- Nageshwar Yadav is the brother of the victim- injured, who deposed that while he was coming back from his field, he saw Ashok Yadav and Sheodutt Yadav were quarreling. Ashok Yadav gave a blow of knife in the stomach of Sheodutt Yadav with intention to commit murder when the blood oozed out from the injury, he tied up a towel to stop the blood. Thereafter, he took the injured to the police station and from there to the Nagar Untari Hospital from where the injured was referred to Daltonganj and thereafter to Ranchi. In cross-examination, he admitted that there was a proceeding under Sections 144 of Cr.P.C. and 145 Cr.P.C. pending between both the parties in the Court.

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P.W.-3- Lal Jee Yadav is the father of the victim- injured. who deposed that the occurrence happened 8-9 months ago. He submits that in the evening while he was returning with ox on the way, he saw that Ashok Yadav was quarrelling with the son of this witness, Sheodutt Yadav. Manoj Yadav, Sunil and Subhagia Devi were also present there. He further submits that Ashok Yadav gave a blow of knife in the stomach of Sheodutt and thereafter Ashok Yadav fled away from the place of occurrence. In his cross-examination, he deposed that at the time of occurrence, he was about “four bamboos” far from the place of occurrence. He further stated before the police that when he reached the place of occurrence, he saw Sheodutt’s wife was holding him.

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P.W.-4- Subhagiya Devi is wife of the victim- injured and the informant of this case. She deposed that the occurrence happened ten months earlier on Friday at about 07.00 P.M. when she was going to her old house with her grand-children after tying the ox. She saw Ashok Yadav and Sunil Yadav coming and giving a blow of knife in stomach of her husband. Thereafter the accused fled away from the place of occurrence. Thereafter she took the injured to the police station and from there to the hospital. In her cross-examination, she deposed that at the time of occurrence it was dark about 07:00 P.M. However, she had clear vision. She further stated that when Ashok Yadav fled, she made hue and cry and after 5-10 minutes some witnesses arrived and her

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husband told them that Ashok Yadav has assaulted him. She further stated that there was a land dispute between both the parties.

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P.W.-5- Shiv Narayan Yadav is own brother of the victim-injured. He deposed that at the time of occurrence, he was standing on Tobacco shop and saw Ashok Yadav giving a blow of knife at the left rib of Sheodutt Yadav. In his cross- examination, he stated that there was the enmity between the accused and the victim. He further stated that the shop of Tobacco was half kilometer far from the place of occurrence and there was no light in the village at that point of time.

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P.W.-6- Sheodutt Yadav is the victim- injured of this case. He deposed that the occurrence happened ten months ago at 07:30 P.M. when he had gone to house of his uncle for returning the ox. When he was returning from there Ashok Yadav and Sunil Yadav came and offered wine to him, but he refused, then, Ashok Yadav gave a blow of knife in his ribs. Thereafter, his wife and other witnesses came there and tied up his injury with towel and thereafter they take him to the police station and from there to the City Hospital, thereafter he was referred to Garhwa, Daltonganj and lastly to Ranchi Hospital for treatment. In his cross-examination, he stated that the accused is his relative. Their lands were divided orally and there is no partition. He further stated that he, his wife and cousin brother went to the police station, but his statement was recorded in the hospital.

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P.W.-7- Dr. Sameer Kumar had examined the injured on 09.11.12, who was posted at Sub-Division Hospital Nagar Untari, Garhwa. He found following injury :-

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“Sharp instrument injury on left lumber region 1”x ½”x1”, abdominal fat came out.”

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In his opinion, the injury was grievous in nature. He said that the injury was dangerous for life.

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P.W.-8- Jagdeo Yadav was declared hostile.

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P.W.-9- Avner Topno is the Investigating Officer of this case. He deposed that he was posted as A.S.I. at P.S. Ramna on 09.11.12. He stated that he recorded the re-statement of the informant and statement of other witnesses as well as he inspected the place of occurrence. The

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place of occurrence is situated in village Bahiyar Khurd. The witness has proved and identified requisition of police regarding transmitting the accused for medical treatment and statement on fardbeyan of Subhagia Devi in his handwriting and signature and also endorsement made therein as well as the Formal F.I.R. in the handwriting and signature of the then Officer-in-Charge, which are marked as Exhibits-2, 3 and 4 respectively. This witness did not turn up for his crossexamination.

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The following documents and material objects were also exhibited by the prosecution:-

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Exhibit-1 injury report. Exhibit- 2 fardbeyan of Subhagia Devi Exhibit-3 endorsement on fardbeyan Exhibit-4 Formal F.I.R.

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After conclusion of the prosecution evidence, the statement of the appellant was recorded under Section 313 of Cr.P.C. No defence witness was produced on behalf of the appellant. Ultimately the Trial Court found the appellant guilty and has convicted him under Section 307 of IPC.

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In this case, the allegation against the appellant is of assaulting P.W.-6. Now let us analyze as to whether the said allegation has been proved by cogent evidence or not. From the evidence which has been discussed hereinabove, we find that P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 all stated that they had seen the occurrence of assault. Though the P.W.-1 admitted that she could not see well during night as she is an old lady, but she stated that she was standing near the victim. P.W.-2 also stated that he had seen the occurrence where this appellant had assaulted the P.W.-6 with a knife on his stomach. Similar is the statement of P.W.-3, P.W.-4 and P.W.-5. All these witnesses though related to each other were present at the place of occurrence and there is nothing to disbelieve their statements. In this context, P.W.-6, who is the injured witness has also stated that he was given a knife blow on his rib by this appellant. Thus, we come to a

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conclusion that there is overwhelming evidence that eye witnesses had seen the assault upon P.W.-6.

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Now the next question is about the injury and it nature. P.W.-1, P.W.-2, P.W.-3, and P.W.-4 had stated that the appellant had given a blow with the knife in the stomach of P.W.-6. P.W.-5 has stated that the assault was on the left rib. The injured witness, P.W.-6 also stated that blow was given with the knife in the rib. This statement given by each of the witness has been corroborated by the medical evidence of P.W.-7 i.e. Doctor, who had stated that the injury was on the left lumber region and abdominal fat came out. The injury report is marked as Exhibit-1. The Doctor has stated that the injury was inflicted by sharp instrument. Thus, the fact that injury was inflicted with a knife in the lumber/ stomach region has been established by the prosecution. So far as the nature of the injury is concerned the Doctor opined that the same is grievous. The Doctor in his evidence stated that injury was dangerous to life of the patient. Though, this fact was not mentioned in the injury report, yet this fact was narrated by the Doctor in his cross-examination. This Doctor is none, but one who had himself examined the injured. Since he has examined the injured, he is the best person who can say as to whether the injury was dangerous to life or not. This meant that injury was life threatening.

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P.W.-2, who is none but the brother of the injured, deposed that there was a dispute going on between both the parties and there is a proceeding under Sections 144 and 145 of Cr.P.C. P.W.-3 also stated that this appellant was quarrelling with his son (injured) and thereafter had inflicted the knife blow. P.W.-6, the injured also stated that this appellant and Sunil Yadav offered wine, but he refused thus, this appellant inflicted a blow of knife on his rib. From the aforesaid, we find that there was dispute between the parties. The appellant had intention to inflict the aforesaid blow. It cannot be said that due to enmity, the appellant has been falsely implicated because the

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witnesses have clearly deposed about the assault and the manner of the assault corroborates with the medical evidence.

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Section 307 of IPC provides for punishment for an attempt to murder. Section 307 of IPC is quoted herein below:-

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“307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

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To bring home the charge under Section 307 of IPC, there has to be an intention or knowledge that if the accused by that act cause death, he would be guilty of murder.

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Murder is define under Section 300 of IPC, which is quoted

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herein under:-

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300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

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2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

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3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—

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4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

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The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

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Section 300 of IPC provides that if there is intention to cause bodily injury which is likely to cause death of the person or there is intention to inflict such bodily injury which is sufficient in the

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ordinary course of nature to cause death then the same will come within the definition of murder.

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Thus, if the act is done with the intention to causing death to whom the harm is caused, then the said act will be covered under Section 300 of IPC. In this case, the prosecution has proved that the assault was by knife, in the abdominal region and the abdomen fat came out. The Doctor found the injury to be grievous and he stated that the injury was dangerous for life. Thus, from the Doctor’s opinion and also from the nature of injury and the part of the body where the injury was inflicted, it is proved that the offender had intention to cause such bodily injury which is sufficient to cause death. Thus, from the evidence led, it is clear that this case comes within the purview of Section 307 of IPC.

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From what has been discussed above, I find that the prosecution has proved the guilt of this appellant beyond all reasonable doubt to the extent that he had committed offence punishable under Section 307 of IPC.

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So far as the sentence is concerned, I find that he has remained in custody for approximately two years, eleven months and eleven days. Considering the short tenure for which, he has remained in custody and the gravity of the offence, I am not inclined to reduce the sentence to the period which he has already undergone. The Trial Court has sentenced the appellant to undergo imprisonment for ten years with a fine of Rs.5,000/- and in default of payment of fine, he has to further undergo simple imprisonment for six months. Considering the age of the appellant, which was 30 years on the date of the judgment i.e. 22.06.2015, we are inclined to reduce the sentence to four years. The appellant is thus, directed to surrender and serve the remaining sentence and also pay the fine of Rs.5,000/-under Section 307 of IPC and in default of payment of fine he has to further undergo simple imprisonment for three months.

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Since, the appellant is on bail, his bail bond is cancelled and he is directed to surrender immediately, failing which, the Trial Court will

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take appropriate steps to arrest him and take him in custody to serve the rest of the sentence.

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Accordingly, the instant Criminal Appeal stands dismissed only with the aforesaid modification of the sentence.

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(Ananda Sen, J.)

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Gautam Kumar Choudhary, J: I agree.

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(Gautam Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated 08/08/2024 AFR /R.S./ Cp 03.

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Ashok Yadav v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ashok Yadav v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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