Ananda Sen, J
1. Today, this case has been listed for consideration of I.A. No.4713 of 2024, preferred on behalf of the appellant, praying therein to suspend the
sentence and release him on bail during pendency of this appeal. The appellant has been convicted and sentenced in connection with Sessions Trial
No.843 of 2022, arising out of Airport P.S. Case No.30 of 2022 dated 28.05.2022, corresponding to G.R. Case No.2596 of 2022. He has been
convicted for the offence under Section 304 part I of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years with a
fine of Rs.25,000/-.
2. Learned counsel for the appellant argued at length by referring to evidence of all the witnesses and exhibits, as the Trial Court Record is already
available.
3. Learned A.P.P. has also argued at length referring to the evidences and the exhibits and other documents.
4. Considering the nature and length of arguments advanced by learned counsel for the parties, and the fact that the Trial Court Record is already
available and this Appeal stood already admitted, this Court requested the parties to finally argue the entire appeal on merits.
5. Counsel for both the parties agreed and argued the entire appeal, challenging the impugned judgment.
6. Thus, when we have already heard the entire appeal on merits, we are not passing any order in this Interlocutory Application and the same is being
disposed of as not pressed.
7. Learned counsel appearing on behalf of the appellant submits that from the evidence led on behalf of the prosecution, the appellant could not have
been convicted for committing offence under Section 304 part I of the Indian Penal Code. From the evidence led, it is clear that no ingredients of
Section 304 part I of the Indian Penal Code is made out.
As per the evidence, the allegation against the appellant is that he slapped the deceased and gave a fist blow. There is no evidence that the appellant
had any intention of causing death, nor there is any evidence which would remotely suggest that the appellant also had an intention to cause bodily
injury which is likely to cause death. The deceased was a cancer patient and died because of cancer. Admittedly, in the F.I.R., the informant did not
even whisper that at any point of time when the appellant was assaulting the deceased, it was made known to the appellant that the deceased was
suffering from cancer.
As per the appellant, the informant has developed the story while deposing as prosecution witness and only in her deposition as P.W.-6 has stated that
she had stated before the appellant that the deceased was suffering from cancer. This is a major improvement made in the deposition only to attract
the ingredients of the offence of Section 304 part I which initially was not there at the time of lodging of the F.I.R. This statement of P.W.-6 at the
time of deposition is nothing but an afterthought and it should have been brushed aside by the Appellate Court. Learned counsel for the appellant relied
upon Ext.C which is the medical report of the victim issued by the Doctors of Orchid Hospital which clearly suggests that cause of death is not the
assault. It is his contention that this document has not been disputed by the prosecution. Further as per the F.I.R., there is no repeated blows and no
weapon was used. The inquest report does not suggest any injury, farless an injury sufficient to cause death. Learned counsel further refers to the
statements of P.W.-7 who is the Doctor who stated that injuries were not such which can aggravate cancer. So far as the genesis of the occurrence
is concerned, since both the vehicles were in an open field, it cannot be said that the vehicle which the appellant was driving was on the wrong side.
On the aforesaid ground, learned counsel for the appellant prays for acquittal of the appellant after allowing this appeal.
8. Learned Additional Public Prosecutor submitted that this is a case of road rage and this appellant has mercilessly assaulted the husband of the
informant who was suffering from blood cancer. P.W.-3 is the daughter of the deceased who was in her house, from where she could see the
occurrence. She has clearly stated that it is this appellant who has assaulted the deceased. The informant is an eye witness who was accompanying
the deceased in the vehicle when the occurrence has taken place.
Learned APP further argues that the version of P.W.-3 and P.W.-6 corroborates each other on the fact that immediately after the assault the
appellant became unconscious and started vomiting and was taken to hospital wherein he died. P.W.-5 is the Doctor who conducted the post-mortem
has opined that there was a head injury. Since there was head injury and the same was result of assault, the death being the cause of said assault, the
appellant has rightly been convicted for committing offence under Section 304 part I of the Indian Penal Code.
9. To prove the prosecution case, altogether 08 witnesses were examined by the prosecution whose names are here under:-
i. P.W.-1 :-Pankaj Kumar Mahto
ii. P.W.-2 :-Dashrath Lohra
iii. P.W.-3 :-Shristy Marandi
iv. P.W.-4 :-Ashish Hansel Besra
v. P.W.-5 :-Dr. Ajay Kumar Bhagat
vi. P.W.-6 :-Anastasia Murmu
vii. P.W.-7 :-Dr. Vikram Singh
viii. P.W.-8 :-Sudhanshu Kumar
10. Several documentary evidences were also exhibited which are as here under:-
i. Ext.-P1/PW5 :- Postmortem report.
ii. Ext.-P1A/PW6 :- Entire written report
iii. Mark x for identification :- Photo copy of X-Ray Report
iv. Mark X/1 for identification :- Photo copy of Blood Report
v. Ext.-P2/PW6 :- Application dated 08.09.2023
vi. Mark Y for identification :- Photo copy of report of CT scan along with documents
vii. Ext. P3/PW7 :- Attested copy of documents â€" 27 sheets which were marked Y for identification
viii. Ext.P4/PW8 :- Registration of written application
ix. Ext. P5/PW8 Formal F.I.R.
x. Ext.P6/PW8 :- Arrest memo of accused Aman Chandra
xi. Ext. P7/PW8 Confessional statement of the accused Aman Chandra.
11. P.W.-1 Pankaj Kumar Mahto and P.W.-2 Dashrath Lohra, have been declared hostile and nothing relevant could be extracted from their
deposition.
P.W.-3 Shristy Marandi is the daughter of the deceased and the informant, who deposed that it was the incident of 28.05.2022 and at that time she
was at her home. Her father and mother went to market to purchase vegetables by car. She deposed that she was in the garden when she saw that
car of her parents was standing in the middle of the field about 40-50 metres away from her house. She stated that suddenly a four wheeler vehicle
from wrong side came in front of the vehicle of her parents and parked there. She deposed that she saw the driver of other car came out of the
vehicle and was pulling her father out of the car and her mother was sitting on the seat next to her father. She further deposed that her mother started
screaming loudly and came out of car and was trying to save her father. She saw the driver of other vehicle coming out of the car and caught hold of
her father and assaulted him hard on his face and head. When people gathered there, fighting stopped. When she along with her mother asked the
driver of other vehicle that why he is beating her father, he said that he thought he was a driver, hence he hit him. She deposed that when she asked
that person to show his license, he refused to show the same. Since her father was feeling dizzy, he said to take him home. By that time, nearby
persons kept that driver in confinement. They took her father to home thereafter when they returned to that place they saw that the driver fled away.
When she reached home, she saw that after some time her father started suffering from headache and he started vomiting. Thereafter, they took him
to Orchid Hospital and during that time her father fainted and had gone in coma. She stated that on 01.06.2022 at 04:00 P.M her father expired during
treatment. She states that her mother lodged a written report in her own handwriting and signature about this incident in the Police Station. She
identified the accused Aman Chandra in video conferencing. She stated that the vehicle of the accused was Scorpio, black colour bearing Registration
No.JH01BS9009. She deposed that when appellant was fighting with her father, he threatened her father by saying that „you don‟t know me I will
kill you right here‟ and also used filthy language.
In her cross-examination, she deposed that her father was patient of blood cancer. He was under treatment and medication for nine months in Tata
Memorial Hospital, Mumbai, prior to his death. She admits that she did not inform the police that her father was suffering from cancer. She states that
her father was transferred from Mumbai to Ranchi due to the disease. She stated that the traffic rules are not followed at the place where the vehicle
was parked. She deposed that it is true that her father does not have any enmity with the accused.
P.W.-4 Ashish Hansel Besra, deposed that on 28.05.2022 he was going to the house of uncle (deceased). When he came near the house, he saw a
crowd of 20-25 people. He saw that the deceased was injured and was fainting. He saw that accused was there with his vehicle. He deposed that
when he asked from the people gathered there about the incident, he got to know that there was some hot talks between both of them for giving way,
thereafter that driver of another vehicle started fighting. He deposed that he does not have knowledge about illness of his uncle.
P.W.-5 namely Dr. Ajay Kumar Bhagat, is the Doctor who deposed that on 02.06.2022 he was posted in FMT Department, RIMS, Ranchi. On that
day he conducted post-mortem of the deceased Sono Marandi under the guidance of Dr. Sanjay Kumar, Associate Professor, Department of RIMS,
Ranchi. He deposed that during post-mortem he made following observations:-
a) “Average built rigor mortis present all over the body. Abdomen not distended.
b) Bruise area 10 cm X 5 cm fronto lateral right arm upper part.
c) Internal :- Diffuse contusion of soft tissue of neck. Diffuse contusion of right temporalish muscle. Contusion of Brain on right side, there is presence of subdural
blood and blood clot right side of brain. All internal organs are congested.
d) Opinion:- Above noted injuries are antemortem in nature. Caused by hard and blunt substance. Death is due to head injury and its complication. Time since
death 12 hours to 24 hour from the time of post-mortem examination.â€
Postmortem report was marked as Ext.1.â€
P.W.-6 namely Anastasia Murmu, is the wife of the deceased who deposed that in the morning she was returning with her husband after purchasing
vegetables from market. She states that her husband was driving the car. She deposed that when they were on the way to their home, one black
colour Scorpio bearing No.JH01BS9009 came towards them from the opposite direction. She saw that vehicle from 200 metres. She deposed that
their vehicle was on the right side still the driver of another vehicle was asking them to give him way and suddenly he stopped his vehicle at a distance
of 10 feet and he was telling her husband to go on the wrong side. She further deposed that their house was just behind that vehicle where the
accused stopped his vehicle. She states that they requested the accused person that he can easily go as there was enough space on the right side. The
accused became angry and came out screaming and using filthy language. Thereafter he came near their vehicle and tried to pull her husband from
the window of the car and started beating him. She deposed that her husband tried to save himself and she remained stunned because neither her
husband hit the car nor they have used any filthy language. Then he opened the door of their car and started giving fist blow to her husband. When
she came out of the car to save her husband he pushed her also. The accused started threatening them of dire consequence. She pleaded by saying
that her husband is a cancer patient and he should not be assaulted, but then also he did not stop. Thereafter her husband fainted and fell down. She
deposed that when they reached home, her husband started vomiting. Thereafter, she took her husband to the Orchid Hospital and admitted him. One
Dr. Vikram Singh told that health condition of her husband is very serious. There was an internal bleeding in all four sides of the head and blood has
clotted.
P.W.-7 namely Dr. Vikram Singh, is a neurosurgeon who deposed that the deceased came to the Orchid Hospital for treatment and he was in an
unconscious state. He stated that after conducting the CT scan of his head, brain haemorrhage was detected. It was also found that the platelet count
of the deceased was very low due to which he could not be operated on. He was put on ventilator. He deposed that despite all efforts, Sono Marandi
died in course of treatment on 01.06.2022.
P.W.-8 namely Sudhanshu Kumar, is the Investigating Officer, who deposed that he had recorded the restatement of informant Anastasia Murmu
present at the police station. He along with the informant and police force, reached Orchid Hospital under Lalpur Police Station. After reaching there,
he found that Sono Marandi was being treated at bed No.10 of ICU. The doctor told that he is still in a complete state of coma and is not in a position
to give his statement. In his cross examination, he stated that during the course of investigation, he did not find that the accused and the informant in
this case were known to each other, or there was enmity between them. He proved the confessional statement of the appellant which was marked as
Ext.P7 / PW-8.
12. After closure of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded.
13. On behalf of the defence, following three defence witness were examined:-
1. D.W.-1 Pramod Kumar
2. D.W.-2 Niraj 3.
D.W.-3 Aman Chandra
14. Several documentary evidences were also exhibited which are as here under:-
1. Ext.D1/PW6 Facebook post dated 25.09.2020
2. Ext.DB/PW6 Photocopy of receipt of Raj Hospital
3. Ext.DC/PW6Â Injury report.
15. D.W.1 namely Pramod Kumar, deposed that he personally knew the accused Aman Chandra as he is his neighbour. He deposed that he is a
resident of Hazaribagh and Aman Chandra‟s house is at 2-3 minute walking distance from his house. He stated that on 28.05.2022, accused Aman
Chandra was at this residence at Hazaribagh. Repair work was being done at Aman Chandra‟s house. He had purchased sand and rods etc., from his
friends. He stated that Aman Chandra has two vehicles at his house. In his cross examination, he stated that he is not aware that Aman Chandra has
a Black Scorpio with registration number JH01BS9009 or not. He also stated that he has no work in Ranchi and Aman Chandra does not visit Ranchi.
D.W.2 namely Niraj, is the own brother of the accused Aman Chandra. He stated that on 28.05.2022, Aman Chandra was at Hazaribagh at his home.
He also deposed that Aman Chandra was at his Hazaribagh house for the entire month of May, 2022 since repair work of the bathroom etc., at their
house was going on. This work was going on under the supervision of Aman Chandra. In his cross-examination he deposed that his brother does not
have any vehicle at present.
D.W.-3 namely Aman Chandra is the appellant himself who in his examination-in-chief, stated that on 28.05.2022, he was at his house at Hazaribagh.
He stated that in the month of May, 2022, repair work was going on at his house for which his father had given him the responsibility and he was
getting the repair work done in his house. He further deposed that he is married and at that time in the month of May, 2022, his wife was also at this
house. He stated that he does not have any four wheeler. He has a motorcycle which is registered in his name. In his cross-examination, he has stated
that he was not in Ranchi on 28.05.2022 and he does not have any Scorpio vehicle.
16. The trial court after going through the material on record and also considering the evidence of the prosecution witnesses, and the defence
witnesses and all documentary evidence, has found the charge levelled against the appellant to be proved and thereafter sentenced him as aforesaid.
17. After we analysed the evidence properly, we find that the place of occurrence is just 40 â€" 50 metres away from the house of the informant. It is
an open field. P.W.-3, who is the daughter of the informant had stated that she was there in the house and she has seen the entire occurrence which
occurred in the field. The informant P.W.-6 also stated that the entire incident occurred in the field which was near her house. P.W.-4 who reached
the place of occurrence and was on the way to the house of P.W.-3, also stated that the incident had occurred in the field. Though P.W.-4 had not
seen the assault but he stated that the appellant was present with a car and there was a crowd of 20 â€" 25 person. Further, the investigating officer
in his deposition also gave a detailed description of the place of occurrence in para-7 & 8. He also in para-9 admits that the house of the deceased is
about 50 metres west of the place of occurrence. This corroborates with the statements of P.W.-3 and other witnesses. Thus, the place of occurrence
has been proved by the prosecution.
So far as the defence witnesses are concerned, they stated that this appellant was all along present in Hazaribagh at that point of time and had never
been to Ranchi. We don‟t believe the aforesaid evidence of the D.W.s as they have given only a bald statement without there being any corroborative
evidence.
Further, in his statement recorded under Section 313 Cr.P.C., the appellant has never stated that he was in Hazaribagh throughout and was not at the
place of occurrence. He simply gave evasive reply to all the questions stating that he is unaware of the facts, which according to us is an evasive
reply not rebutting the circumstances. If we weigh the evidence of the prosecution witness and the defence witness, we find that the statements of
prosecution witnesses on the point of presence of the appellant at the place of occurrence and about the place of occurrence are more reliable.
18. Now, comes the genesis of the occurrence. From the evidence of P.W.-3, P.W.-4 and P.W.-6, it is clear that the deceased and P.W.-6 who is the
wife of the deceased were returning from market in their car. The vehicle driven by this appellant came from the opposite side and they stopped at a
distance. This appellant came down abusing and assaulted the deceased with fists and slaps. This incident was seen by P.W.-3 and P.W.-6 who was
with the deceased in the car. They stated the same fact. P.W.-4 who is a chance witness and was going to the house of P.W.-3 reached there and
saw a crowd and saw the deceased fainting when the members of the crowd had narrated the story to him. Thus, the evidence of P.W.-3 and P.W.-6
who are the eye witnesses and also the P.W.-4 who reached immediately after the occurrence, establishes the fact that this is a case of road rage and
this appellant assaulted the deceased. Thus, the genesis has also been proved by the prosecution.
19. Now, the point to be considered is the manner and the nature of assault. Admittedly from the evidence of the prosecution, it is clear that the
assault was on the face by fist and slaps. Admittedly no weapon was used by the appellant and also there was no premeditation. The fact that the
appellant has assaulted the husband of P.W.-6 is evident and has been established from the evidence of P.W.-3, P.W.-6 who are eye witnesses. Now,
if we see the medical report, we find that P.W.-6 in para-81 & 82 has categorically stated that in the injury report it has been stated that she had seen
the injury report of her husband prepared by Orchid Hospital, wherein it was mentioned that there is “No external injury seenâ€. The Doctor i.e.
P.W.-7 who treated the deceased when he was in an injured condition, stated that he was suffering from brain haemorrhage. He also found the
platelet count to be very low as a result of which the patient could not be operated upon. In cross examination, he stated that the cause of death is
Severe lactic acidosis due to cardiorespiratory failure associated with SDH, AML. He stated that the cause of low platelet count is related to AML.
He also admitted that in his report, there is no finding about injury. From his evidence, we could find that the patient was suffering from cancer also.
20. From the documentary evidence, we find that Ext.-3 is the C.T. Scan report of the deceased. From the report, we find that there was subdural
bleeding along the right cerebral hemisphere but there is no fracture. In the death summary report there is mention of fact that the patient was a
known case of Acute Myeloid Leukaemia (AML). In the said death summary report, we also find that it has been opined that the patient has been
declared dead due to Severe lactic acidosis secondary to cardiorespiratory failure associated with SDH, AML subdural haemorrhage and Acute
Myeloid Leukaemia. This means that the death occurred due to cardiorespiratory failure which is caused by both subdural haemorrhage and
Leukaemia.
21. It is the case of the appellant that the deceased died due to Leukaemia and as since the Doctor did not find any external injury, it cannot be said
that the death was caused due to alleged assault. Though, the report suggest that there is no external injury seen but the fact which cannot be lost
sight of is that soon the patient was assaulted, he started losing his consciousness and the witnesses said that he started vomiting also. In the injury
report, the Doctor has noted about the history of this patient wherein it has been mentioned that the patient was having severe headache and profuse
sweating. Thus, the case of haematoma can be the result of the assault upon the deceased by fists and slaps. The patient may have been suffering
from Leukaemia but the fact of assault has been proved by the prosecution. It is also proved by the prosecution that immediately after the assault, the
condition of the deceased started deteriorating and he was admitted in the hospital and was in a coma, and thereafter he died.
22. Now, on the aforesaid fact, it has to be seen whether the case of the appellant comes within the ambit of Section 304 part-I of the IPC or not.
From the evidence led by the prosecution it is clear that the parties were not known to each other. The incident occurred suddenly on the spur of the
moment out of a road rage. The appellant was not carrying any weapon and the assault was by the fists and slaps. There is nothing on record to
suggest that this appellant knew that the deceased was suffering from cancer. Though, P.W.-6 in her deposition stated that when the appellant was
assaulting, she came begging before appellant, stating not to assault her husband, as he is suffering from cancer but this fact has not been mentioned in
the F.I.R. Further her daughter i.e. P.W.-3 admitted that she did not inform the Police that her father was suffering from cancer.
23. Thus, we come to a conclusion that this part of the statement is an exaggeration. There is nothing on record to suggest that this appellant at all
knew about the illness of the deceased. Further, the deceased was driving the car and was aged about 57 years. His age was also not such where an
unknown person can presume that he was suffering from any ailment arising out of old age or suffering from any terminal disease. Thus, we hold that
the appellant was unaware about the health condition of the deceased when this incident had taken place.
24. Section 304 of the IPC provides for punishment for culpable homicide not amounting to murder. Section 304 of the IPC is in two parts. The first
part relates to intention of causing death or of causing bodily injury as likely to cause death and the second part relates to knowledge that it is likely to
cause death but without any intention to cause death. It is necessary to quote Section 304 of the IPC which reads as here under:-
“304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with
[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely
to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.â€
25. To bring within the ambit of the aforesaid Section, the prosecution has to establish and prove that there was mens rea to commit the crime defined
under Section 299 of the IPC. Relevant portion of Section 299 of the IPC is quoted herein below:-
“299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
26. As per the aforesaid provision of law, an intention of causing death or bodily injury which is likely to cause death or the fact that the accused has
knowledge that he is likely to cause death because of his act, must be established and proved. In the instant case, from the evidence it is clear that
none of the ingredients of the aforesaid Section are present in this case. As noted earlier, there was no weapon and the assault was by fists and slaps.
In absence of these basic ingredients, the appellant cannot be convicted under Section 304 Part-I of the IPC.
27. Now, the next question is in view of the proved fact that the appellant had assaulted the deceased, under what provision of law he can be
punished? The case in hand is some what similar in the fact also with the case decided by the Hon‟ble Supreme Court reported in the case of
Jaswinder Singh (Dead) through Legal Representative Vs. Navjot Singh Sidhu & Ors.r eported in (2022) 7 SCC 628. In the aforesaid case, the
Hon‟ble Supreme Court was dealing with the death caused due to road rage wherein the respondent Navjot Singh Sidhu and others assaulted the
deceased with fist and slaps. While dealing with the case, the Hon‟ble Supreme Court has held that the case only comes under the provision of
Section 323 of the IPC. In this case also on the facts of this case and the evidence which has been led, we find that this case comes within the ambit
of Section 323 of the IPC. The punishment under Section 323 of the IPC is prescribed as sentence of a term of one year or with a fine which may
extend to 2,000/- or both.
Thus, we convict the appellant for committing the offence punishable under Section 323 of the IPC and sentence him to undergo rigorous
imprisonment for one year along with a fine of Rs.1,000/-.
28. Since, it has been submitted by counsel for the appellant that the appellant has already remained in custody for more than two years, he is directed
to be released forthwith, if not wanted in any other case.
29. Accordingly, judgment of conviction dated 27.02.2024 and order of sentence dated 11.03.2024, passed by learned Additional Judicial
Commissioner-III, Ranchi, in Sessions Trial No.843 of 2022, stands modified. As a result, this Criminal Appeal is partly allowed.
30. I.A. No.4713 of 2024 stands disposed of.
