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2007 DIGILAW 227 (JHR)

Kando Dhabariya v. State Of Jharkhand

2007-04-02

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Sole appellant Kando Dhabariya stands convicted for the offence punishable under Section 323 of the Indian Penal Code and sentenced to serve simple imprisonment for three months and to pay a fine of Rs. 500/- in default thereof to further undergo simple imprisonment for one month, by the 1st Additional Sessions Judge, Seraikella in Sessions Trial No. 55 of 1999. 2. Brief facts leading to this appeal are that in the afternoon of 4.7.1998 informant Sudhir Mahto was going to village Nuwagawn when the appellant along with Sona Mandal assaulted him with iron rod. The incident was been by Chandra Shekhar Dhabariya who rescued the informant from further assault. The appellant became unconscious and was moved to Seraikella Sadar Hospital where his statement was recorded by Seraikella Police at 9.00 P.M. According to informant, this occurrence was took place due to demand of money from appellant for drinking wine. 3. The police registered Seraikella Police Station Case No. 24 of 1998 under Sections 341, 323, 325, 307/34 of the Indian Penal Code against two persons and ultimately submitted charge sheet against both of them. The case of the appellant was committed to the Court of Sessions where he was charged for offence under Sections 307/325 of the Indian Penal Code while co-accused Sona Mandal was charged under Section 109 of the Indian Penal Code. The appellant pleaded not guilty. The trial court acquitted co-accused Sona Mandal from the charge under Section 109 of the Indian Penal Code and the appellant from charge under Sections 307/325 of the Indian Penal Code, but found him guilty for the offence under Section 323 of the Indian Penal Code and sentenced him as stated above. 4. The present appeal has been preferred mainly on the grounds that when the main charges under Sections 307/325 of the Indian Penal Code were not found proved, the conviction of the appellant under Section 323 of the Indian Penal Code deserves to the set aside. Mr. R.C.P. Sah, learned Counsel appearing on behalf of the appellant, submitted that the whole prosecution story is concocted and deserves to be thrown away. According to Mr. Sah, the prosecution version has not been supported by any positive evidence in this case. It is further submitted that P.W.2, the brother of the informant, P.W.3, P.W.4 and P.W.5 are hearsay witnesses while P.W.1 has been declared hostile. According to Mr. Sah, the prosecution version has not been supported by any positive evidence in this case. It is further submitted that P.W.2, the brother of the informant, P.W.3, P.W.4 and P.W.5 are hearsay witnesses while P.W.1 has been declared hostile. Therefore, the conviction of the appellant may be set aside. 5. I have gone through the lower court records to ascertain the submissions made by the learned Counsel for the appellant The prosecution depends upon nine witnesses, out of which P.W.9 is the doctor who examined P.W.7, the informant, at 7.30 P.M. on 4.3.1998 and found bruise on left scapular region, simple in nature caused within 6.00 hours. He further opined that it was superficial injury may be caused due to fall. In this context, the statement of P.W.7 that he was given repeated blows with iron rod appears to be exaggerated. The informant has claimed that his left shoulder was injured and started bleeding from his mouth after which he became unconscious. He further asserted that assault was made by the appellant alone and after receiving two to four strike from rod he became unconscious. He could not say who has brought him to hospital. According to him, he became conscious at 9 P.M. and gave the statements to police in the hospital. 6. P.W.6, the alleged eyewitness of the occurrence, reaches at the place of occurrence and brought him to hospital. He has admitted in his cross-examination that he cannot say how many times the appellant has assaulted the informant. He further asserted that many witnesses have arrived at the place of occurrence before him. According to him, he was never examined by the police. Other witnesses are hearsay witnesses and reached at the place of occurrence after the appellant had fled away, P.W.2 further asserted that he was informed by one girl named Prem Jori and when he reached at the place of occurrence there was none except his unconscious brother. He contradicted his earlier version made before the police. P.W.3, P.W.4 and P.W.5 are not eyewitnesses of the occurrence. 7. On perusal of the entire materials on records, it is apparent that the incident, if any, took place in the afternoon of 4.3.1998, which is not, supported by any other witnesses except the informant. He contradicted his earlier version made before the police. P.W.3, P.W.4 and P.W.5 are not eyewitnesses of the occurrence. 7. On perusal of the entire materials on records, it is apparent that the incident, if any, took place in the afternoon of 4.3.1998, which is not, supported by any other witnesses except the informant. It is also apparent from the records that the informant has exaggerated the manner of assault and resultant injury on him. The doctor has found only one bruise on him; simple in nature may be caused due to fall on ground. The learned trial court has considered all these facts and circumstances, acquitted the appellant from other charges but having believed the informant and injury on him, sentenced the appellant under Section 323 of the Indian Penal Code. 8. Having considered the facts and circumstances discussed above, I find and hold that the prosecution in the facts of present case has not been able to prove beyond doubts the charge against the appellant. As such, the present appeal has got merit and deserves to be allowed. 9. In the result, the present appeal is allowed and the judgment of the trial court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and further discharged from the liabilities of his bail bonds.