Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 697 (JHR)

Sitaram Tanty v. State of Bihar

2008-07-08

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J.- This appeal has been filed by the appellant against the judgment and order of conviction and sentence dated 17.5.2000 passed by Sri Ram Prabodh Singh, 1st Add!. Sessions Judge, Chaibasa, in Sessions Trial No. 435 of 1995 whereby the appellant has been convicted for the offences under Section 307 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and to pay a fine of rupees two thousand and in default of payment of the fine, to undergo further imprisonment for one year. The appellant has also been convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. However, both the sentences have been ordered to run concurrently. 2. The facts of the case, in brief, is that a panchayat was convened comprising of a few persons of the village as members of the panchayat for settling a land dispute between the appellant and his brother Bahadur Tanti. The members of the panchayat proceeded to the disputed land along-with the appellant and his younger brother and one of the members of the panchayat inquired from the appellant as to Why he had erected a fence around the land which was allotted to the share of the appellant's younger brother by the decision of the previous panchayat. Upon this the appellant became furious and snatched a tangi from his wife who was standing nearby and assaulted the member namely Yogeshwar Singh (PW-10) on his head with the blunt portion of the tangi as a result of which the victim fell on the ground unconscious owing to the grievous injury caused to him. The persons standing nearby tried to snatch the tangi from the hand of the appellant while he was wielding it and in the process, he caused hurt on the leg of the informant Ghutan Baraik (PW-12). The persons who were present there could manage to restrain the appellant from indulging m further violence. Since it was already dark the FIR was lodged in the morning on the next day with the Police Station by the informant/injured PW-12. 3. The Investigating Officer after completing the investigation, submitted charge-sheet recommending trial of the appellant for the offences under Sections 307/323 of the Indian Penal Code. 4. The trial court took cognizance of the offence against the appellant. 3. The Investigating Officer after completing the investigation, submitted charge-sheet recommending trial of the appellant for the offences under Sections 307/323 of the Indian Penal Code. 4. The trial court took cognizance of the offence against the appellant. Charges were framed against the appellant to which the appellant pleaded not guilty, The case of the appellant in defence was denial of the occurrence. 5. At the trial, as many as 13 witnesses were examined by the prosecution including the informant, the Investigating Officer as also the doctor who had treated the injuries of the injured persons and submitted his injury report. 6. The trial court relying on the testimonies of the eye witnesses, besides the testimony of the injured witnesses including the informant PW-12, recorded its finding of guilt against the appellant for the offence under Section 307 IPC besides the offence under Section 323 IPC and sentenced him accordingly. 7. The appellant has assailed the impugned judgment of his conviction and sentence on the grounds that the conviction of the appellant for offence under Section 307 IPC is totally misconceived and is against the weight of evidence on record. Learned counsel for the appellant would explain that even according to the evidence of the witnesses, it would transpire that the assault on PW-12 though made with tangi, but it was not with the sharp edge of the weapon. Rather, the allegation is that the assault was made by the blunt portion and furthermore, there is no allegation of any repetition of the assault on the victim and furthermore, the evidence would disclose that the assault was made on grave and sudden provocation given to the appellant at the time of the occurrence. These circumstances, according to the learned counsel indicate that the elements of the offence under Section 307 of the Indian Penal Code are essentially racking. 8. These circumstances, according to the learned counsel indicate that the elements of the offence under Section 307 of the Indian Penal Code are essentially racking. 8. Learned counsel for the State while controverting the grounds advanced on behalf of the appellant, offers support to the impugned judgment of the trial court and submits that the intention of the appellant to commit murder of the injured/informant PW-12 can be inferred from the fact that even though the appellant had used the blunt portion of the tangi to inflict the injury, but the assault was made on the head of the injured which is a vital part of the victim's body and furthermore, the assault caused grievous injury to the victim and therefore, the only inference that can be drawn is that the assault was made with knowledge of causing such bodily injury which was likely to cause death of the victim. 9. From perusal of the impugned judgment of the trial court, it appears that out of 13 witnesses, as many as three have been declared hostile and two are formal witnesses. Nevertheless, the prosecution had examined as many as 4 material independent witnesses who had seen the occurrence and are claimed to be the eye-witnesses. In addition to the above, both the injured persons including the informant were examined. The testimonies of these witnesses regarding the manner and the genesis of the occurrence is consistent and there is no contradiction whatsoever in their evidence. The trial court has rightly inferred that the testimonies of the witnesses do inspire confidence and reliability regarding the manner of the occurrence. However, the trial court appears to have been carried away by the mere fact that the injury inflicted was on the vital part of the victim's body and was grievous in nature. The trial court has failed to take into consideration that the opinion of the doctor PW-1'1 that the injury on the head of the victim was grievous in nature, was not based on his own assessment, but was based on the recordings in the victim's discharge certificate issued by the Hospital and the doctor who had recorded his opinion in the discharge certificate was not examined. so that the basis of his opinion could be ascertained. so that the basis of his opinion could be ascertained. The trial court appears to have drawn its inference on such doubtful evidence that assault by the appellant was made on the head of the victim with tangi, was with the intention to cause death of the victim. Such inference is totally misconceived. 10. Facts as disclosed by the witnesses categorically indicate that the appellant on the spur of the moment snatched the tangi from the hand of his wife and assaulted PW-12, but while doing so, it was with the blunt portion of the tangi. It also appears that there was no repetition of the assault by the appellant on the victim. These circumstances indicate that the appellant had no intention to kill the injured or else he would have used the sharp edge of the weapon and would have repeated the assault on the Victim since there was no provocation from anyone. The facts and circumstances of the case, clearly indicate that the ingredients of the offence under Section 307 IPC is not made out. Therefore, the conviction of the appellant for the offence under Section 307 IPC is not sustainable and is fit to be set aside. 11. However, considering the fact that the injury was caused on the head of the victim PW-12 for which he was hospitalized for one week for treatment of injuries and considering the fact that the evidence regarding the nature of the injury is not conclusive, the appellant would at best be liable for causing simple hurt to the injured. It appears that the trial court has held the appellant liable also for the offence under Section 323 IPC and has convicted him accordingly. 12. In the circumstances aforesaid, there being merit in this appeal, the appeal is allowed in part. The conviction of the appellant under Section 307 IPC is set aside, but his conviction under Section 323 IPC is sustained. 13. The appellant is on bail. He is directed to surrender before the trial court within fifteen days from the date' of this order to serve out the sentence imposed on him by the trial court. .. 14. The trial court is directed to take all necessary steps for securing the. at. tendance of the appellant to serve out the sentence for the offence under Section 323 IPC as imposed by the trial court.