2025:JHHC:15362-DB Criminal Appeal (D.B.) No. 139 of 1997 (R) [Against the judgment and order of conviction dated 25.04.1997 (sentence passed on 30.04.1997 passed by Sri Alok Kumar Sinha, learned VIth Additional Judicial Commissioner, Ranchi in S. T. No. 610 of 1995.] --- 1. Damodar Gareri 2. Kishun Gareri son of Balak Gareri Both residents of village Karge Patratoli, PS Bero, District Ranchi … … Appellants Versus The State of Jharkhand … … Respondent --- For the Appellants : Mr. Akhouri Awinash Kumar, Advocate For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE ARUN KUMAR RAI --- C.A.V. on – 28.01.2025 Pronounced on – 12.06.2025 Per, R. Mukhopadhyay, J. Heard Mr. Akhouri Awinash Kumar, learned counsel for the appellants and Mr. Abhay Kumar Tiwari, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction dated 25.04.1997 (sentence passed on 30.04.1997 passed by Sri Alok Kumar Sinha, learned VIth Additional Judicial Commissioner, Ranchi in S. T. No. 610 of 1995 whereby and whereunder the appellants have been convicted for the offence under Section 302/34 I.P.C. and have been sentenced to undergo imprisonment for life and the appellant no. 2 has further been convicted for the offence under Section 324 I.P.C. and has been sentenced to undergo rigorous imprisonment for one year. Both the sentences were directed to run concurrently so far as the appellant no. 2 is concerned. 3. The prosecution case arises out of a fard beyan of Diban Gareri @ Rameshwar Gareri recorded on 05.04.1995 in which it has been 2025:JHHC:15362-DB 2 stated that on the same day at 8:00 A.M., Kaushalya Devi the wife of his cousin Ganga Gareri had come to the house of the informant and disclosed that Balak Gareri and Kishun Gareri were cutting her jack fruit tree. On this information, the informant along with Kaushalya Devi went to the said place and found the same to be true and even though the informant objected, Balak Gareri and Kishun Gareri did not pay heed to such objection. It has been alleged that in the meantime, Shiv Sahay Gareri, Jageshwar Gareri and Bhunua Gareri came and in course of an altercation, Kishun Gareri gave a spade blow on Jageshwar Gareri which touched his right shoulder. When Kaushalya Devi went to her son’s rescue, Kishun gave a spade blow upon her as a result of which, she suffered a cut injury on her right palm. It has been alleged that Bhunua Gareri made efforts to pacify the situation, but the same resulted in Kishun Gareri assaulting Bhunua Gareri with an axe on cheek and when Bhunua fell down, Damodar Gareri snatched the axe from the hands of Kishun Gareri and gave a blow on the neck of Bhunua. The accused persons after committing assault fled away. The son of the informant Bhunua Gareri died at the spot. Based on the aforesaid allegations, Bero P. S. Case No. 14 of 1995 was instituted under Sections 323 ,324, 307, 302/34 of I.P.C. On completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 610 of 1995. Charge was framed against the accused persons under Sections 302/34 and 307/34 which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 12 witnesses in support of its case. 5. P.W. 1 – Rameshwar Gareri @ Diban is the informant who has stated that he was in his house when his sister-in-law Kaushalya Devi came and informed him that his jack fruit tree was being cut by Balak Gareri and Kishun Gareri. On this information, he went near the jack fruit tree and asked Balak Gareri and Kishun Gareri to wait for two 2025:JHHC:15362-DB 3 days, but they did not listen. In the meantime, his nephew Jageshwar Gareri and Shiv Sahay Gareri as well as his son Bhunua Gareri came at the said place. Bhunua Gareri asked Balak Gareri and Kishun Gareri not to cut the tree, but they did not heed such advice and in course of an altercation, Kishun Gareri assaulted Jageshwar Gareri with a spade on his shoulder and Kaushalya Devi was also assaulted which resulted in an injury suffered by her on her right hand. On the instigation of Damodar, Bhunua was assaulted by Kishun with an axe on cheek and he fell down after which Damodar snatched the axe from the hands of Kishun and gave Bhunua an axe blow on his cheek. He was taken on a cot to the hospital, but he died on the spot. In cross-examination, he has deposed that Balak is his own brother. There was already a partition of property between him and Balak. The jack fruit tree which was the cause of dispute belongs to Sita Gareri, but the same was being used by Ganga Gareri since childhood. Ganga Gareri is his cousin brother and husband of Kaushalya Devi. Balak Gareri had instituted a case against his son, but he did not know the subject matter of the case. There was no land dispute with the accused person. The accused persons did not stop cutting the jack fruit tree even when he and Kaushalya Devi arrived. Even when he and Kaushalya Devi objected, the accused persons did not respond and when this led to a commotion, Jageshwar Gareri and Shiv Sahay Gareri had arrived. His son Bhunua came after Jageshwar and Kaushalya were assaulted. 6. P.W. 2 – Jageshwar Gareri has stated that it was 8:30 A.M. and he was in his village when his sister had come and informed him that Kishun Gareri and Balak Gareri are cutting the jack fruit tree. On this information, he along with his brother Shiv Sahay Gareri had gone near the jack fruit tree, where he saw Kishun Gareri removing the earth from the root of the tree with a spade while Balak was cutting the roots of the tree. His mother Kaushalya Devi and uncle Diban Gareri were already present with them. When they had reached, they were trying to prevent Balak Gareri and Kishun Gareri from cutting the tree, but they did not listen to them. When he had asked the accused persons not to cut 2025:JHHC:15362-DB 4 the tree, he was assaulted with spade by Kishun and when his mother objected, Kishun had assaulted her with the sharp edge of spade. She has suffered a cut injury on her right palm. All these happenings resulted in a commotion at which Bhunua came and requested Balak not to cut the tree for two days. He also asked both the sides not to fight with each other. In the meantime, Damodar Gareri who was ploughing the field nearby had provoked others to commit assault after which Kishun assaulted Bhunua with an axe on face and when Bhunua fell down, Damodar snatched the axe from Kishun and assaulted Bhunua on his neck. All the accused persons thereafter fled away. Bhunua was put on a cot for taking him to the hospital, but he died at the spot itself. He was sent by the police to government hospital, Bero where he was treated. In cross-examination, he has deposed that the Jack fruit tree belongs to his father Ganga Gareri. There was no enmity between both the sides and they shared harmonious relationship. When Bhunua had come, the quarrel had settled down. Bhunua had asked not to fight amongst themselves at which Damodar came there leaving his ploughing. 7. P.W. 3 – Shiv Sahay Gareri has stated that he was at Patratoli when Jageshwar Gareri came and disclosed that Balak and Kishun were cutting the branches of jack fruit tree. When he and Jageshwar had gone to the place of occurrence, they had seen Balak and Kishun involved in uprooting the jack fruit tree and a quarrel had started and when the scuffle ensued, Kaushalya Devi objected to, for which she was abused and assaulted with a spade which resulted in an injury on her right palm. Bhunua had came subsequently, who had requested not to fight amongst themselves at which Damodar who was ploughing the field nearby had exhorted others to commit assault. This led to Kishun assaulting on the face of Bhunua with axe. Damodar had thereafter snatched the axe from the possession of Kishun and gave a blow on the neck of Bhunua. Bhunua had died due to the assault. The accused persons thereafter fled away. 2025:JHHC:15362-DB 5 In cross-examination, he has deposed that several persons had already assembled by the time, he had reached the place of occurrence. There was no animosity with Balak. 8. P.W. 4 – Bartu Munda has proved his signature as well as the signature of Ram Bhagat Sahu on the seizure list of blood-stained earth which has been marked as Exhibits 1 and 1/1. 9. P.W. 5 – Ram Bhagat Sahu has been declared hostile by the prosecution. 10. P.W. 6 – Kaushalya Devi has stated that while she was going to throw cow dung near her house, she saw Kishun Gareri and Balak Gareri cutting the jack fruit tree belonging to her. She and Diban thereafter went near the jack fruit tree and raised an objection, but it was not heeded by the accused. In the meantime, Jageshwar and Shiv Sahay had also come and Jageshwar asked the accused persons not to cut the tree to which they did not listen and instead Kishun gave a spade blow on the back of Jageshwar. Kishun also gave a spade blow upon Kaushalya Devi which injured her right palm. Bhunua had thereafter come and asked them not to cut the tree for two days, at which Kishun with an axe assaulted on his face and thereafter Damodar snatched the axe from Kishun and assaulted Bhunua on his neck. All the accused persons fled away. Bhunua died on the spot. In cross-examination, she has stated that there was no animosity with the accused persons prior to the incident. 11. P.W. 7 – Jamuna Mundain @ Sitia Mundain did not support the case of the prosecution and was declared hostile by the prosecution. 12. P.W. 8 – Sheikh Kadir has proved his signature on the seizure list which has been marked as Exhibit 1/2. 13. P.W. 9 – Dr. Niranjan Minz was posted as a Tutor in the Department of Forensic Medicine, RMCH and on 06.04.1995, he had conducted autopsy on the dead body of Bhunua Gareri and had found the following: “(A) Abrasions: (i) 3 x 2 cm on the right elbow back. (ii) 2 x 2 cm on the left elbow back. (B) Incised wounds: 2025:JHHC:15362-DB 6 (i) 9 x 2 cm x bone deep on right cheek and adjoining right lateral neck upper part. The weapon cut the soft tissues and the right maxillary and right mandible bones practically and the muscles of the right side of the neck partially (Sterno cleido musroid muscles.) (C) Lacerated wound: (i) 3 x 2 cm x bone deep on the right occipital region, in muscular neath there weas a depressed fracture of the right occipital bone measuring 5 x 4 cm area with diffused contusion of the occipital scalp. There was presence of subdural blood and blood clots over both sides of the brain.” The abrasions and lacerated wound were caused by hard and blunt substance may be caused by blunt portion of Tangi and the incised wound was caused by sharp cutting weapon may be with sharp edge of Tangi. The post mortem report has been proved and marked as Exhibit 2. In cross-examination, he has deposed that the incised wound was caused by a single blow and the lacerated wound can be caused by a fall on stone. Death was caused due to head injury. 12. P.W. 10 – Shamshul Mirdaha has proved his signature on the fard beyan of Diban Gareri which was marked as Exhibit 1/3. He has proved his signature on the inquest report which has been marked as Exhihit 1/4. He has also proved his signature on the seizure list of blood -stained axe recovered from the Verandah of Balak Gareri which has been marked as Exhibit 1/5. 13. P.W. 11 – Dr. Subodh Kumar was posted as Medical Officer, Primary Health Centre, Bero and on 05.04.1995, he had examined Kaushalya Devi and had found the following injury: “(i) one incised wound 2” x ½” x ¼ “ on the right palm between the index finger and the thumb (ii) one abrasion ½” x ¼” on the left shoulder.” The nature of injury was opined to be simple, caused by sharp edged weapon may be sharp edge of the blade of spade. The second injury was opined to be caused by hard and blunt object. He has proved the injury report which has been marked as Exhibit 3. 2025:JHHC:15362-DB 7 On the same day, he has examined Jageshwar Gareri and found no injury on his person. He has proved the injury report which has been marked as Exhibit B/1. 14. P.W. 12 – Shivaji Prasad was posted as an Officer In-charge of Bero police station and on 05.04.1995 at 11:30 P.M., Diban @ Rameshwar Gareri along with Kaushalya Devi, Jageshwar Gareri, Rahimuddin Ansari, Shamshul Mirdaha had arrived and his fard beyan was recorded by the police. He has proved the fard beyan which was marked as Exhibit 4. He had taken over the investigation. He had recorded the re-statement of the informant and sent a requisition to the government hospital, Bero of Jageshwar Gareri and Kaushalya Devi for treatment. He had recorded the statement of Shamshul Mirdaha and Rahimuddin Ansari. He has proved the inquest report which has been marked as Exhibit 5. The dead body was sent for post mortem examination to RMCH. He had made a seizure of blood-stained earth which has been proved and marked as Exhibit 6. He had inspected the place of occurrence which is at village Patratoli in the northern side, where there are several trees. He thereafter recorded the statement of the witnesses. On a search conducted in the house of Balak Gareri, a blood- stained Tangi was recovered which was seized and a seizure list was prepared. The seizure list has been proved and marked as Exhibit 6/1. He had obtained the injury report of Kaushalya Devi and Jageshwar Gareri from the government hospital, Bero. He had sent the blood- stained earth and blood-stained axe to the Forensic Science Laboratory. On completion of investigation, he had submitted charge-sheet. In cross-examination, he has deposed that he had not verified the ownership of jack fruit tree from the circle office. In re-examination on recall, he has stated that he had recorded the statement of Sitia Mundain who had stated that he had witnessed Kishun assaulting with an axe upon Kaushalya Devi and Jageshwar and Kishun and Damodar assaulting Bhunua which resulted in his death. 2025:JHHC:15362-DB 8 15. The statements of the accused persons were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the commission of murder of Bhunua. 16. The defence has examined as many as 4 witnesses in support of its case. 17. D.W. 1 – Durga Bhagat is the Mukhiya of Sero Panchayat who has stated that at Patradiba, the jack fruit tree was standing which was purchased by him from Sita Gareri in 1986-87. The same was purchased as he was building the school at Karge Basti, but since thereof he did not need it, he did not cut it. The tree was given to Damodar Gareri, the son of Balak Gareri and after one year he had sold the tree for Rs. 500/- to Balak Gareri and Madu Gareri. A document was also prepared which has a stamp of Panchayat and which has been proved and marked as Exhibit A. In cross-examination, he has deposed that the tree existed over a government land. The tree was purchased under a scheme in which the school was being constructed. The amount of Rs. 500/- for selling the tree was kept by him and it was not deposited before the Panchayat. 18. D.W. 2 – Hazrat Ansari has stated that at 7:00 A.M., he was ploughing the field and adjacent to him, Damodar was ploughing his own field. After 10:00 A.M., he left for his house. Damodar at that point of time was continuing to plough his field. In cross-examination, he had deposed that he had not seen the murder of Balak. His statement was never recorded by the police. 19. D.W. 3 – Chunia Mahto has stated that he was cleaning his well situated adjacent to the field of Damodar while Damodar was ploughing his field. Damodar had ploughed the field till 10:00 A.M. and thereafter he went to take bath. 20. D.W. 4 – Akhtar Ansari has proved the Malguzari receipt issued by Karamchari which was marked as Exhibit B. 21. It has been submitted by Mr. Akhouri Awinash Kumar, learned counsel for the appellants that the evidences of the witnesses suffers from vital contradictions. It has been submitted that the cause of 2025:JHHC:15362-DB 9 dispute was a jack fruit tree which was being cut by Balak Gareri and Kishun Gareri and as per the evidence of D.W. 1, he had sold the jack fruit tree to Balak Gareri for Rs. 500/- and therefore the act of the informant party to prevent the cutting of the tree would amount to aggression on their part. It has been submitted that the entire incident occurred at the spur of the moment and hence at best a case under Section 304 part II is made out against the appellant. The appellant no. 1 had earlier in custody for 4 and ½ years while the appellant no. 2 had remained in custody for 2 years. 22. Mr. Abhay Kumar Tiwari, learned A.P.P. has submitted that the evidences of P.W. 1, P.W. 2, P.W. 3 and P.W. 6 clearly depicts the manner in which the assailants and others had committed a concerted assault upon Bhunua Gareri, Kaushalya Devi and Jageshwar Gareri resulting in the death of Bhunua Gareri. It has been submitted that the post mortem report corroborates the manner of assault committed by the appellants. 23. We have heard the learned counsel for the respective parties and have also perused the trial court records. 24. A trivial incident of cutting the jack fruit tree snowballed into a brutal assault committed by the assailants resulting in the death of Bhunua and injury suffered by Kaushalya Devi and Jageshwar Gareri. Both sides claimed the jack fruit tree and though the prosecution has failed to verify the ownership of the tree but D.W.1, who is the Mukhiya has brought on record a sale receipt with a stamp of the Panchayat indicating that the tree was sold by Balak Gareri, the father of Damodar Gareri. This sale though also seems to be controversial since the tree was purchased under a scheme for construction of a school, but the sale proceeds of the tree was kept by D.W. 1. Moreover, the tree seems on a government land. P.W. 2 and P.W. 6 are the injured eye-witnesses duly supported by P.W. 1 and P.W. 3 who were present at the place of occurrence and all have stated about concerted assault committed upon the deceased Bhunua Gareri. The assault was the culmination of a quarrel going on between both the sides. It is said that when Kishun 2025:JHHC:15362-DB 10 Gareri has assaulted on the face of Bhunua with an axe, Damodar had also given an axe blow upon the neck of Balak Gareri. None of the appellants have given repeated blow, but have given singular blows; one with the blunt portion of the axe and other with its sharp end. As we have noted above, the informant party has failed to prove the ownership of the jack fruit tree, though the defence has at least brought a semblance of ownership over the said tree. Even otherwise, the assault was committed with an axe which was being used in cutting the tree. Pre- meditated intention on the part of the appellants to commit the assault is absent in the case of the prosecution. We therefore modify the conviction imposed upon the appellants from Section 302 I.P.C. to one under Section 304 Part II I.P.C. 25. So far as the conviction and sentence under Section 324 I.P.C. is concerned, the same needs no interference. The sentence is also modified to the period already undergone, since the appellants have remained a considerable period in custody apart from the fact that the appellants are facing the rigors of the case for last 3 decades. 26. This appeal stands disposed of with the aforementioned modification in the conviction and consequent sentence imposed upon the appellants. 27. Pending I.A.s, if any, stands closed. (Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Jharkhand High Court at Ranchi The 12th day of June, 2025 R.Shekhar/NAFR/Cp.3