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2003 DIGILAW 1068 (JHR)

Mahesh Rajbhar v. State of Bihar (now Jharkhand)

2003-09-01

VISHNUDEO NARAYAN

body2003
Judgment By Court.- This appeal has been directed by the appellant named above against the impugned judgment and order dated 17.1.1997 and 18.1.1997 respectively passed in Sessions Trial No 210 of 1991 by Shri Awadesh Kumar Ojha, 5th Additional Sessions Judge. Dhanbad whereby and whereunder the appellant was found guilty for the offence punishable under Section 323 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for one year. However, the appellant was found not guilty for the offence punishable under Sections 307, 354 and 341 of the Indian Penal Code and he was accordingly, acquitted in respect thereof. 2. This case has arisen on the basis of the fardbeyan (Ext. 2) of P.W 3 Tetri Devi, the informant, and the injured of this case, recorded by P.W 7, S.I., Bindeshwari Thakur of Dharmabandh O.P. on 21.7.1989 at 10.00 hours in Tilatand Central Hospital regarding the occurrence which is said to have taken place on 20.7.1989 at 21.00 hours at Ghaura No. 4 in village Dharmabandh within P.S. Gobindpur District Ranchi. 3. The prosecution case, in brief, is that the informant was sitting at the door of her house and a lunatic woman came there and sat before her and at this the appellant started abusing the informant in filthy languages and, thereafter, he came there with lathi and started assaulting the informant. It is also alleged that when the informant was fleeing away, the appellant caught her arms and did not allow her to go inside the house and as a result of that she fell down and the appellant, thereafter, dragged her by catching hold of her leg and also attempted to press her neck. It is also alleged that the informant has sustained bleeding injuries on her temporal region and also other injuries on her arm, back, wrist and both the legs P.W. 4 Samrali Rajbhar, P.W. 2, Toofani Pasi and one Gobind Rajbhar have witnessed the occurrence. 4. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have' committed no offence and that he has been falsely implicated in this case. 5. The prosecution has in all examined seven witnesses to substantiate its case. 4. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have' committed no offence and that he has been falsely implicated in this case. 5. The prosecution has in all examined seven witnesses to substantiate its case. P.W 3, Tetri Devi is the informant of this case and P.W. 1 Udai Rajbhar is her son and was 12 years old at the time of the occurrence and his statement has not been recorded by the I.O. in course of investigation under Section 161 of the Code of Criminal Procedure. P.W 4, Samrali Rajbhar and P.W 6, Anarik Singh have turned hostile and they do not support the prosecution case. P.W 2, Toofani Pasi is a hearsay witness of the occurrence. P.W. 5, Dr. K.K. Tantuway has examined the informant on 20.7.1989 at 23.30 hours at his residence and the injury report in respect thereof per his pen is Ext. l and his opinion regarding the nature of injuries as per X-Ray report is Ext. 1/1 in this case. P.W 7, Bindeshwari Thakur is the I.O. of this case. The blood stained clothes of the informant are material Exts. I and II in this case. 6. It has been submitted by the learned counsel for the appellant that the learned court below did not consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and the solitary testimony of the informant is replete with inherent improbabilities and material consistencies and contradictions and her evidence does not stand corroborated by any independent natural and reliable witness of the occurrence and her testimony is fit to be brushed aside in this case. It has also been submitted that there is nothing in the fardbeyan (Ext. 2) or in the evidence of the informant regarding the genesis or motive for the appellant to assault her and this aspect of the matter goes at the very root of the prosecution case and casts a cloud of suspicion to the very credibility of the prosecution case. 2) or in the evidence of the informant regarding the genesis or motive for the appellant to assault her and this aspect of the matter goes at the very root of the prosecution case and casts a cloud of suspicion to the very credibility of the prosecution case. It has also been Submitted that the injuries appearing on the person of the informant have been 'caused due to her fall in a drunken state and the medical witness who had examined her within two hours of the alleged occurrence has found her in an intoxicated stage and viewed thus the impugned judgment cannot be sustained. In the alternative it has been submitted that the sentence of R.1. for one year for the offence under Section 323 of the Indian Penal Code is very severe and there is provision of releasing the accused on conviction either on due admonition or executing of the probation bond under the Probation of Offenders Act, 1958 as well as under Section 360 of the Code of Criminal Procedure and the learned court below has not recorded any satisfactory reasons as to why the appellant is being denied the privilege of the provisions of Section 360 of the Code of Criminal Procedure or the Probation of Offenders Act and this aspect of the matter is an infirmity which vitiates the impugned judgment. However, he has no objection if the appellant in this case is released on due admonition without going into the merits of the appeal. 7. The learned A.P.P has contended that the appellant was found guilty for the offence under Section 323 of the Indian Penal Code and he was sentenced to undergo R.I. for one year and there is legal and reliable evidence on the record that the appellant has assaulted the informant in the manner as alleged and the informant has materially corroborated her case on oath and her evidence is in conformity with the medical evidence as deposed by the medical witness and, therefore, there is no illegality in the impugned judgment. He has also submitted that the sentence of one year for the offence under Section 323 of the Indian Penal Code is no doubt severe and the provision of Section 360 of the Code of Criminal Procedure as well as of the Probation of Offenders Act mandates to release the appellant either on probation bond or on due admonition. He has also submitted that the sentence of one year for the offence under Section 323 of the Indian Penal Code is no doubt severe and the provision of Section 360 of the Code of Criminal Procedure as well as of the Probation of Offenders Act mandates to release the appellant either on probation bond or on due admonition. He has also submitted that the impugned judgment is conspicuously silent as to why the appellant was denied the privilege of the mandate of Section 360 of the Code of Criminal Procedure or of the Probation of Offenders Act when the conviction under Section 323 of the Indian Penal Code was recorded against him. He has also submitted that this appellant has remained in custody for 15 days as under trial prisoner and further more 14 years has elapsed since the date of occurrence and as such the appellant may be enlarged on due admonition modifying the sentence and affirming the impugned judgment. 8. It will admit of no doubt that an occurrence has taken place on 20.07.1989 at 21.00 hours in which P.W. 3, the informant has sustained injuries on her person besides bleeding injury on her temporal region caused by lathi and immediately soon, thereafter, she was examined by P.W. 5, Dr. K.K. Tantuway at 23.30 hours on that very day. The medical witness has found the following injuries on the person of the informant: (i) A swelling 2" x 1 1/2" over the left renal angle. (ii) A lacerated wound 1 1/4" x 1/2" x scalp deep over the left temporal region. (iii) An oval swelling 1" x 1/2" over the right wrist arterially. (iv) An abrasion 1 1/2" x 1/2" over the front of the left knee. The medical witness has further deposed that the nature of injuries was simple and has opined the age of the injuries aforesaid within six hours. P.W. 7, the I.O. has deposed that he has found the stains of blood at the place of occurrence. The clothes which the informant was wearing has also blood stains thereon which has been produced by the I.O. in the court in course of his evidence. The evidence aforesaid establishes the fact that an occurrence had taken place at the door of the informant in which she has been assaulted and sustained injuries. The clothes which the informant was wearing has also blood stains thereon which has been produced by the I.O. in the court in course of his evidence. The evidence aforesaid establishes the fact that an occurrence had taken place at the door of the informant in which she has been assaulted and sustained injuries. Therefore, the time and place of the occurrence are fully established by legal evidence on the record. P.W. 3, the informant has deposed that at the time of the occurrence she was sitting at the door of her house and the appellant came there and started abusing her in filthy languages. It is pertinent to mention here that the house of the appellant is west of the house of the informant intervened by two houses and there are only seven residential houses of he B.C.C.L. in which the informant and others were residing. She has further deposed that the appellant came there and started assaulting her by lathi as a result of which she sustained injuries on her temporal region, back wrist and leg and when she fell down the appellant also dragged her catching hold of her leg. She has also deposed that witnesses came there and rescued her. However, none of the persons cited as witnesses in the fardbeyan is corroborating the evidence of the informant and they have truned hostile. P.W. 1, Udai Rajbhar was 12 years old son of the informant at the time of the occurrence and he in his evidence on oath supports the assault on her mother by the appellant caused by lathi. He was a child witness at the time of the occurrence and his statement has not been recorded in course of investigation. Therefore, much reliance cannot be placed on his evidence. It has been suggested in cross examination to the medical witness that the informant has sustained injuries on her person as a result of fall but the medical witness in reply to that has categorically stated that the injuries appearing on the person of the informant can not be caused by fall. As per the evidence on the record the informant was under booze when she was examined by the doctor. As per the evidence on the record the informant was under booze when she was examined by the doctor. The evidence of P.W. 3, the informant stands corroborated by the medical evidence coupled with the objective finding of the I.O. There is no apparent reason for the informant to falsely implicate the appellant in this case and in the facts and circumstances of this case the false implication of the appellant is totally ruled out. The testimony of P.W. 3 though not corroborated by any other witness on the record appears to be reliable and worthy of credit and I see no reason to discard her evidence. The medical evidence on the record is in conformity with her testimony. I see ring of truth in her evidence. The learned court below has, therefore, rightly come to the finding of the guilt of the appellant and has carefully scanned and scrutinized the evidence on the record and I see no legal infirmity in the finding arrived at by the learned court below. 9. This appellant has been found guilty for the offence under Section 323 of the Indian Penal Code in a case which was lodged on 21.07.1989 regarding the occurrence of 20.07.1989 and the appellant was acquitted for the offence under Sections 307, 354 and 341 of the Indian Penal Code. The judgment of conviction was pronounced in the month of January, 1997 against which this appeal has been preferred by the appellant before this Court. All the injuries appearing on the person of the informant is simple in nature, one of which is a lacerated wound on her scalp. Rest of the injuries are swelling and abrasions and not on her vital part. The appellant is an employee of the B.C.C.L. working in Dharmabandh colliery. A period of 14 years have elapsed since the occurrence. Section 360 of the Code of Criminal Procedure mandates to release on probation of good conduct or after admonition any person found guilty of an offence punishable with fine only or with imprisonment for a term of seven years or less regard being had to his age, character and antecedents coupled with the circumstances in which the offence has been committed and against whom no previous conviction is proved. Section 3 of the Probation of Offenders Act, 1958 also mandates for the release of the accused on being held guilty on due admonition which runs thus: "3. Power of court to release certain offenders after admonition.-When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation-For the purposes of this section, previous conviction agains1 a person shall include any previous order made against him under this section or section 4. The offence under Section 323 is punishable with imprisonment for one year or fine of Rs. 1000/- or both. No reason has beer assigned by the learned court below regarding the denial of the privilege of Section 360 of the Code of Criminal Procedure or of the provision of Section 3 of the Probation of Offenders Act to the appellant in the impugned judgment. In view of the nature of the offence and the appellant being the first offender having no criminal antecedent deserves to be released or due admonition in this case. 10. Considering all the pros and cons of the matter I find no merit in this appeal and it fails. The impugned judgment of the learned court below is hereby affirmed but the sentence awarded to the appellant is hereby modified and the appellant is hereby released on due admonition. The appellant is also discharged from the liability of his bail bond.