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2009 DIGILAW 369 (JHR)

Janki Kumhar v. State of Jharkhand

2009-03-17

PRADEEP KUMAR

body2009
JUDGMENT : The appeal is directed against the judgment dated 31.5.2001 and order of sentence dated 7.6.2001 passed by Shri Ramnath Ram Mahto, 1st Additional Sessions Judge, Giridih in Sessions Trial No. 87 of 1995, by which judgment the learned Sessions Judge found the appellant no.1, Janki Kumhar guilty under Sections 448 & 324 of the Indian Penal Code and sentenced him to undergo R.I. for 3 years under Sections 324 of the Indian Penal Code and 1 year under Section 448 of the Indian Penal Code. The learned Sessions Judge also found the appellant nos. 2 to 4, namely Dineshwar Kumhar, Ishwar Kumhar @ Ishwar Pandit and Kishun Kumhar @ Balkishun Kumhar guilty under Sections 448 & 323 of the Indian Penal Code and sentenced them to undergo R.I. for 1 year each. Both the sentences were directed to run concurrently. 2. The prosecution case was started on the basis of a Fardbeyan given by the informant, Sukhdeo Pandit (P.W.6) on 25.7. 94 stating therein that on the same day at about 6 a.m. the accused persons, Janki Kumhar, Ishwar Kumhar @ Ishwar Pandit and Dinesh Kumhar all of village Beko along with accused, Kishun Kumhar came variously armed with Lathi, Tangi & Kudal entered into his house and after entering his house they assaulted him with Lathi and Tangi. The accused, Janki Kumhar gave a Tangi blow on the head of his wife, causing injury on the head. The occurrence was seen by the witness, Ghanshyam Pandit and Kitu Kumhar. 3. On the basis of the said Fardbeyan the police registered a case under Sections 323/324/307/34 of the Indian Penal Code and after investigation submitted charge-sheet under Sections 323/324/448/307/34 of the Indian Penal Code. Since Sections 307/34 was exclusively triable by a court of Sessions and learned Magistrate after taking cognizance of the case committed the same to the court of sessions and finally the case was tried by 1st Additional Sessions Judge, Giridih, who found all the accused persons guilty and convicted and sentenced them as aforesaid. 4. It appears that in course of trial the prosecution has examined eight witnesses. P.W.1 is Tukali Devi, P.W.2 is Janki Devi, P.W.3 is Most. Sugiya Devi, P.W.4 is Ghanshaym Pandit, P.W. 5 is Titu Pandit, P.W. 6 is Sukhdeo Pandit, P.W.7 is Dr. Shiv Chandra Jha and P.W.8, Arbind Kumar is Investigating Officer of the case. 5. 4. It appears that in course of trial the prosecution has examined eight witnesses. P.W.1 is Tukali Devi, P.W.2 is Janki Devi, P.W.3 is Most. Sugiya Devi, P.W.4 is Ghanshaym Pandit, P.W. 5 is Titu Pandit, P.W. 6 is Sukhdeo Pandit, P.W.7 is Dr. Shiv Chandra Jha and P.W.8, Arbind Kumar is Investigating Officer of the case. 5. After examination of witnesses and after hearing both the parties, the learned Sessions Judge found the accused persons guilty as aforesaid. 6. It is submitted by the learned counsel for the appellants that although all the witnesses have stated that the occurrence took place and injuries were caused to the informant and to his wife, but all the injuries were simple in nature and the occurrence took place due to land dispute between the parties. It is further submitted that P.W.1, Tukali Devi has admitted that all the accused persons are related to accused, Janki Kumhar. Janki Kumhar is her ‘Sasur’ while accused, Dinesh Kumhar is her ‘Devar’ and as such it is first occurrence due to land dispute and the accused persons deserve the benefit of Section 360 Cr. P.C. , which was wrongly refused by the trial court since they are not criminals nor they have got any criminal history. 7. On the other hand, learned counsel for the State has also submitted that that the prosecution has proved by its witnesses that the occurrence took place and during assault the informant, Sukhdeo Pandit and his wife suffered simple injury. The conviction of accused, Janki Kumhar under Section 324 of the Indian Penal Code and rest of the accused under Section 323 of the Indian Penal Code are well founded. 8. After hearing both the parties and going through the evidences, I find that the Informant, Sukhdeo Pandit has very clearly stated that on the date of occurrence all the accused persons entered into his house variously armed with Lathi, Tangi & Kudal and accused, Janki Kumhar gave a Tangi blow, causing injury on his head and accused, Dinesh Kumhar also assaulted him and his wife came out in order to save him then she was also assaulted by accused, Janki Kumhar and other accused persons, Dinesh Kumhar and Ishwar Kumhar @ Ishwar Pandit have been corroborate by the evidence of P.Ws. 2 & 3 when the doctor has found injury on the person of informant, Sukhdeo Pandit ( P.W. 6) as also on the person of his wife. The doctor ( P.W.7) has found injury no.3 i.e. incised wound on right side forehead of the informant is 2” x ¼” x skindeep and in his opinion, although these injuries are simple, but caused by sharp cutting weapon and the injury was found on the vital part of the body. In that view of the matter, it is clear from the evidence of witnesses that Janki Kumhar caused injury on the person of the informant, Sukhdeo Pandit by sharp cutting weapon, which could have been dangerous, but the injury was simple in nature and it was only skin-deep, which shows that there was no intention to cause grievous harm or to commit the murder of the informant. It appears from the statement of the witnesses that the occurrence took place due to family dispute with regard to the land and as such the finding of conviction against accused, Janki Kumhar under Section 324 of the Indian Penal Code and finding of conviction of other accused persons, Dinesh Kumhar, Ishwar Kumar @ Ishwar Pandit under Section 323 of the Indian Penal Code is well founded. However, as per the statement of injured ( P.W.6) since, the accused persons were related to the informant as Sasur and Devar. In that view of the matter, their conviction under Section 448 of the Indian Penal Code is not founded. Hence their conviction under Section 448 of the Indian Penal Code is set aside in the facts and circumstances that since, there is no previous criminal history and the accused persons are related to the informant party. Hence the sentence of accused, Janki Kumhar under Section 324 is reduced to a fine of Rs. 2,000/-only coupled with the rigor, which they have undergone right from 1994 to this date during the trial the appellant no.1 and in default to undergo R.I. for six months and the rest of the appellants, Diheshwar Kumhar, Ihswar Kumhar @ Ishwar Pandit and Kishun Kumhar @ Balkishun Kumhar who have been found guilty under Section 323 of the I.P.C., their sentence is also reduced to fine of Rs. 1,000/-each and in default to undergo R.I. for 3 months. Further the fine amount of Rs. 1,000/-each and in default to undergo R.I. for 3 months. Further the fine amount of Rs. 4000/-if realized will be given to the injured, Sukhdeo Pandit (P.W. 6) and rest Rs. 1000/-will be deposited as fine. With the aforesaid amendment in the conviction and sentence passed by the court below, this appeal is allowed in part. The trial court will call upon the appellants for serving out the sentence.