Cr.Appeal (S.J.) No.998 of 2009
With
Cr. Appeal (S.J.) No.854 of 2009
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Against the judgment of conviction and order of sentence dated 19.08.2009 &
21.08.2009
respectively passed by the Sessions Judge, Koderma in
Sessions Trial No. 298 of 2004.
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In Cr.Appeal (S.J.) No.998 of 2009
1. Narayan Yadav.
2. Binod Yadav.
3. Kuwar Yadav.
4. Ashok Yadav. ... ... ... ... ...Appellants
-Versus-
The State of Jharkhand. ... ... ... ...Respondent
In Cr.Appeal (S.J.) No.854 of 2009
1. Jageshwari Devi.
2. Bhatni Devi.
3. Sijni Devi. ... ... ... ... ...Appellants
-Versus-
The State of Jharkhand. ... ... ... ...Respondent
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For the Appellants: Mr. V.P.Singh, Sr. Advocate.
Mrs. Rashmi Kumar, Advocate.
For the State: Mrs. Mahua Palit, A.P.P.
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C.A.V. on 23.06.2011 : Pronounced on 25.07.2011
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PRESENT
THE HON'BLE MR. JUSTICE DILIP KUMAR SINHA
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D.K.Sinha,J. Both the appeals have been preferred arising out of common
judgment recorded by the Sessions Judge, Koderma in Sessions Trial
No.298 of 2004 (Koderma P.S. Case No.214 of 2003) by which the
appellants were convicted under Sections 147,323,307/149 of the Indian
Penal Code and each of them was sentenced to undergo imprisonment for
one year, six months and seven years respectively on each count. However,
all the seven appellants were acquitted from the charge under Section 380
of the Indian Penal Code.
2. Koderma P.S. Case No. 214 of 2003 was instituted on the basis of
the written report of the informant-Ramchandra Bhagat Yadav with the
allegation that on 15.06.2003 (Sunday) his neighbour agnates Narayan
Yadav along with his nephew Binod Yadav, Kuwar Yadav and his son Ajay
Yadav and Krishna Yadav were making preparation of liquor illegally on his
land whereupon the informant opposed their illegal act, which resulted into
scuffle and it was alleged that all the accused persons started beating him,
his son Sukhdeo Yadav and his wife Bishni Devi. In the same sequence of
assault the wife of Narayan Yadav, namely, Jageshwar Devi, wife of Binod
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Yadav, namely, Bhatni Devi and wife of Kuwar Yadav, namely, Sijni Devi
also joined their hand with the assailants by holding ‘Tangi’, ‘Garasa’ and
‘Kudali’ whereas other named accused were holding sticks and Danda. The
son of the informant sustained six injuries on his head alleged to be caused
by blows of Lathi, Farsa and Tangi and his condition became precarious.
The victims were removed to Domchanch Police Outpost where the
statement of the informant was recorded and for the better management of
the injuries the son of the informant was referred to Sadar Hospital,
Koderma. The informant further gathered on 20.06.2007 after five days of
the alleged occurrence that the accused persons had broken open the lock
of his house and removed all their belongings and had extended threat that
the informant and other inmates of his house would be killed in case they
would return back. The occurrence was witnessed by several persons. A
written report was presented on 20.06.2003 before the Domchanch Police
Outpost by the informant which was forwarded to Koderma Police Station
on the basis of which the F.I.R. was lodged. The I.O. after investigation
submitted charge-sheet against the appellants and one Krishna Yadav
under Section 307 of the Indian Penal Code besides other Sections. All the
eight accused were put on trial including the appellants and on conclusion
each of them was convicted as referred to hereinbefore against substantive
sentence.
3. Learned Sr. Counsel Mr. V.P.Singh, appearing on behalf of the
appellants at the outset submitted that the occurrence as alleged took place
on 15.06.2003 at about 4 p.m. and the written report was presented on
20.06.2003 to which an F.I.R. was lodged but the same was received in the
Court on 23.06.2003 without plausible explanation to such inordinate delay
caused in lodging the F.I.R. and its receipt in the Court. It would be relevant
to mention that the informant- Ramchandra Bhagat Yadav, who was an
important witness to the alleged occurrence could not be examined in the
Court because of his death during pendency of the trial. The conviction
recorded against the accused appellants was based upon the evidence of
only four witness viz. P.W. 1 Bisni Devi, P.W. 2 Sukhdeo Yadav, P.W. 3
Rajshri Rai, (second) Investigating Officer and P.W. 4 Dr. Dinesh Murmu,
who had examined the injuries of the victims. Mr. Singh further attracted the
attention that there were two injuries reports of Bisni Devi issued by P.W. 4
Dr. Dinesh Murmu, who admitted in his evidence that the first injury report
Ext. 1 was proved on behalf of the prosecution whereas another injury
report was proved Ext. A by the defence bearing glaring contradictions. The
injury report of Sukhdeo Yadav was proved Ext. B and the injury report of
the informant Ramchandra Bhagat Yadav was proved Ext. C. Besides these
injury reports, no other document could be proved on behalf of the
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prosecution. It would be relevant to mention, learned Sr. Counsel added that
even the Fard Bayan or the F.I.R. could not be proved to substantiate the
allegation for the purpose of corroboration or contradiction of the
prosecution case and in that manner the appellants were highly prejudiced
for not getting an opportunity to cross-examine the informant.
4. Advancing his argument the learned Sr. Counsel submitted on
behalf of the appellants that no offence alleged under Section 307/149 of
the Indian Penal Code on the evidence adduced could be attracted against
any of the appellants in view of the fact that there was no intervening
circumstance to prevent the appellants if at all they had intention to commit
murder of Sukhdeo Yadav and that the injuries found on his person were
dangerous to his life and therefore, the prosecution failed to prove the
charge under Sections 307/149 of the Indian Penal Code. Similarly, charge
under Section 147 is not made out against any of the appellants. As per
prosecution story only four appellants viz. Narayan Yadav, Binod Yadav,
Kuwar Yadav & Ashok Yadav opposed the illegal act when the informant
and his son were manufacturing liquor illegally and there held scuffle which
was joined by other three ladies appellants and therefore, it could safely be
said that the appellants of Criminal Appeal No.998/2009 had not formed any
unlawful assembly as defined under Section 141 of the Indian Penal Code.
It was the specific case that the four appellants were manufacturing liquor to
which the informant opposed and at the later stage they were joined by
other three ladies and therefore, the conviction of the appellants under
Section 147 I.P.C. cannot be sustained under law. As regards conviction of
the appellants under Section 323 of the Indian Penal Code, the learned Sr.
Counsel submitted that when the appellants were convicted under the
graver offence under Sections 307/149 of the Indian Penal Code, their
separate conviction under Section 323 of the Indian Penal Code could not
be sustained under law. The appellants Narayan Yadav, Binod Yadav,
Kuwar Yadav and Ashok Yadav remained in custody for 2,1/2 years
whereas the lady appellants were released after detention in their custody
for 22 months in total and now they were enjoying the privilege of ad interim
bail during pendency of their appeal.
5. Finally, the learned Sr. Counsel submitted that in the given
situation when the offence under Section 307/149 of the Indian Penal Code
could be proved against the appellants, Section 147 could not be attracted
and offence under Section 323 could not be made out against any of them,
it needed deep consideration of this Court for their acquittal or in alterantive
they might be set at liberty after modifying the offence and the punishment
awarded to each of them for the period of imprisonment already undergone
4
by them.
6. Heard the learned A.P.P. appearing on behalf of the Respondent-
State, who submitted that the P.W. 1 Bisni Devi and Sukhdeo Yadav were
consistent in their evidence about the complicity of all the appellants in
assaulting them causing a number of injuries who have been rightly
convicted under Sections 307/149 and allied Sections of the Indian Penal
Code. It was only because of good fortune that the life of the injured
Sukhdeo Yadav, (P.W.2) could be saved in spite of injuries on his vital
organs by appropriate medical aid and management of his injuries. P.W. 1
Bisni Devi also consistently testified the occurrence with the participation of
the appellants in such assault and the Trial Court was justified in holding the
appellants guilty under Section 307/149 of the Indian Penal Code which
needed no interference in appeals.
7. Having regard to the facts and circumstances of the case,
argument advanced on behalf of the parties, I find substance in the
argument that there was no intervening circumstance available to prevent
the appellants had there been their intention to commit murder of P.W. 2
Sukhdeo Yadav, who had out numbered him and at best, in view of the
injuries found on the person of Sukhdeo Yadav, found to be caused by hard
and blunt object total 7 in number with the injuries No.1,2 & 3 laceration in
nature on the right and back portion of skull and lacerated wound on the left
side of occipital region 1/2 cm x 1/3 cm x scalp deep and lacerated wound
on upper lip 1.5 cm x1/4 cm x skin deep besides other superficial injuries, to
my view the aforesaid injuries found on the person of Sukhdeo Yadav,
cannot be put in the category of simple injury but grievous in nature, an
offence under Section 325 of the Indian Penal Code wherein sentence has
been prescribed which can be extended up-to 7 years and fine. Admittedly,
the parties were agnates and the occurrence arose on the disputed land
which resulted into scuffle and I have held that there was no intention of the
appellants to commit murder of Sukhdeo Yadav. I further observe that the
statements of the appellants recorded under Section 313 of the Code of
Criminal Procedure were not found to be put in right way and that general
and omnibus allegations were put to each of the appellants against the
settled requirement of Section 313 of the Code of Criminal Procedure and
for that the appellants have been highly prejudiced for not being confronted
with incriminating evidence appearing against each of them during course of
trial so as to accord an opportunity to each of them to explain, as such they
were prejudiced. But the facts cannot be ignored in the backdrop that the
prosecution proved the injuries on the persons of the victims, amongst them
are the injured witness P.W. 1 and P.W. 2. The cummulative effect of the
entire facts and circumstances indicates that a lenient view may be taken
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against the appellants while considering appeal. In the facts and
circumstances their conviction under Section 307/149 is modified into one
under Section 325/34 of the Indian Penal Code against each of the
appellants. I further observe that in the facts and circumstances no offence
is made out under Section 147 and 323 of the Indian Penal Code against
the appellants for the reasons discussed hereinbefore, accordingly, each of
them is sentenced to undergo imprisonment for the period already
undergone by them with the fine of Rs.1000/- and in default of payment
each of the appellants shall be liable to undergo simple imprisonment for
two months.
8. With such modification in conviction and sentence this appeal is
dismissed with regard to Sessions Trial No.298 of 2004 arising out of
Koderma P.S. Case No.294 of 2003 with the direction that the fine amount
must be deposited within two months of the receipt of the communication of
this judgment in the trial court below. Let the appellants of Criminal Appeal
(S.J.)No.998 of 2009 be released forthwith on their deposition of fine.
9. Both the appeals are dismissed.
[D.K.Sinha,J.]
Jharkhand High Court, Ranchi
Dated the________7. 2011
P.K.S./N.A.F.R.