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2010 DIGILAW 766 (JHR)

Sheobaran Pal v. State of Jharkhand

2010-07-31

D.K.SINHA

body2010
JUDGMENT : By Court.-This criminal appeal is directed against the judgment of conviction dated 23.9.2002 and order of sentence recorded on 24.9.2002 by Shri Kishore Kumar Srivastava, 2nd Additional Sessions Judge, Garhwa in Sessions Trial No. 18/98, by which appellant No.1 Sheobaran Pal was convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. By the same order, appellant No. 2 Ramchandra Pal was convicted under Section 324 of the Indian Penal Code, whereas appellant No. 3 Manoj Pal was convicted under Section 323 of the Indian Penal Code and both the appellants were released under Section 4(1) of the Probation of Offenders Act, 1958 on executing bond of Rs. 5,000/- with one surety each for a period of one year to maintain peace and be of good behaviour. 2. Prosecution story in short was that the fardbeyan of the informant Bihari Pal was recorded on 24.7.1997 at Sadar Hospital, Garhwa at about 10:00 a.m. who narrated that on 23.7.1997 at about 5:00 p.m. his co-villagers Sheobaran Pal (appellant No.1), Gurucharan Pal, Haricharan Pal, Muni Pal, Ramchandra Pal (appellant No.2), Manoj Pal (appellant No.3) were draining water to their field by channelizing the water through the field of the informant, thereby damaging the standing crops of the field of the informant. The informant then alongwith his father Deobaran Pal and his younger brother Arjun Pal went to the field and asked the accused persons to stop doing such act and in the same sequence the informant tried to plug the opening of the channel, it was alleged that the appellant Sheobaran Pal commanded his sons to assault and finish them. On such command, it was alleged that the appellant Manoj Pal inflicted blows with his lathi on the arms of the informant. When the father of the informant Deobaran Pal rushed forward to rescue the informant, other accused brought lethal weapons from their houses and It was alleged against the appellant Sheobaran Pal that he dealt Gadasa blows on the head of the father of the informant as a result of which he sustained bleeding injuries and fell down on the earth. His younger brother Arjun Pal when reached to rescue his father, the appellant Sheobaran Pal inflicted blow with an axe on his head causing injuries. His younger brother Arjun Pal when reached to rescue his father, the appellant Sheobaran Pal inflicted blow with an axe on his head causing injuries. Upon alarm, mother of the informant also arrived at the scene, who was assaulted by Kalawati Devi, Jhuni Devi, Prabha Devi, Rambha Devi and Sugani Devi with fists and slaps. Occurrence was witnessed by the co-villagers and on hearing the occurrence, the elder brother of the informant Pyari Pal arrived at the scene and removed all the victims to Garhwa Hospital for their treatment where statement of the informant was recorded and Meral P.S. Case No. 45/97 was instituted for the alleged offence under Sections 147/148/149/307/323/ 324/430 of the Indian Penal Code against eleven named accused. Investigating Officer after investigation submitted charge sheet against all the named accused for the alleged offence. 3. Prosecution had examined altogether nine witnesses, out of them P.W. 1 Deobaran Pal, P.W.3 Arjun Pal, P.W.4 Laxmi Devi and P.W. 5 Bihari Pal (informant) were the injured witnesses. Besides P.W. 2 Pyari Pal claimed to be the eye witness. P.W. 6 Dr. Ram Naresh Singh Diwakar had examined the injuries of the witnesses and P.W. 7 Rohni Jha was the Investigating Officer of the case. Other two witnesses viz. P.W. 8 Duldul Choudhary and P.W. 9 Ram Surat Choudhary, were unfavourable to the prosecution and they were declared hostile. 4. Learned counsel Mr. B.P. Jaiswal assailed the impugned judgment recorded against the appellants and submitted that in the instant case place of occurrence could not be established by the prosecution witnesses. According to the informant, it was his field where 'sawan' crops were standing, whereas the victim mother of the informant, P.W. 4 Laxmi Devi testified that the occurrence took place near her house at the distance of about 25 steps. She was consistent that when she arrived at the place of occurrence, she found her son and husband lying on the ground in injured condition. The other witnesses stated that altercation took place at the 'sawan' field of the informant, as such, for want of definite place of occurrence, it' could be safely held that the prosecution failed to prove its case. 5. Advancing his argument Mr. The other witnesses stated that altercation took place at the 'sawan' field of the informant, as such, for want of definite place of occurrence, it' could be safely held that the prosecution failed to prove its case. 5. Advancing his argument Mr. Jaiswal submitted that the specific case of the prosecution was that the appellant Sheobaran Pal had inflicted two blows with Farsa upon Deobaran Pal, as a result of which he fell down in the field and became unconscious sustaining bleeding injuries but no corresponding injuries alleged to be caused by Farsa were found by the Doctor, who attended him at Garhwa Hospital. Similarly, it was alleged against the appellant Manoj Pal that he inflicted blow with stick upon the informant on both of his arms but the informant in his substantive evidence admitted single blow in his arm alleged to be caused by the appellant Manoj Pal. The next contradiction appears in the statement of P.W. 3 Arjun Pal who testified that it was the appellant Ramchandra Pal, who inflicted blow by means of axe on his head as a result of which he fell down and became unconscious. Contrary to it, P.W. 5 Bihari Pal (informant) in his fardbeyan recorded first point in time narrated that it was Sheobaran Pal who had inflicted blow with Gadasa on the head of Arjun Pal and therefore, there was no consistency in the statements of the material witnesses. Admittedly, the appellants and the witnesses were the agnates and P.W. 1 Deobaran Pal admitted that the ancestral lands were not partitioned by metes and bounds amongst the witnesses and the appellants who were the descendants of the common ancestor. Admittedly, the appellants did not claim their right over the lands which were given to P.W. 1 Deobaran Pal and his son by interim arrangement but at the same time all the lands were irrigated in continuation being connected to each other and water for irrigation used to be channelized by one after another field for want of drainage system. 6. 6. Learned counsel by pointing out towards the inconsistency submitted that the appellants alongwith other accused were present in their field, as per statement made first point in time, draining out water channelizing through the field of the witnesses to which P.W. 5 Bihari Pal (in-formant) opposed their act explaining that his 'sawan' crops were being damaged by such channelization of water which resulted into altercation. P.W. 1 Deobaran Pal testified that the appellant Sheobaran Pal inflicted blow with Gadasa but without disclosing the number of blows and he further added that the appellant Ramchandra Pal inflicted blow with stick causing fracture in his left arm. Previous enmity between the parties was admitted which was on account of dispute related to a 'well', possession of which was given to the prosecution witnesses. 7. Learned counsel further pointed out that as per statement of P.W. 1 Deobaran Pal, all the assailants had not arrived collectively at a time rather it was the appellant Manoj Pal, who came at the scene first point in time and suddenly inflicted two to three blows with stick upon the informant Bihari Pal as a result of which the informant fell down in the field. Contradicting to it, the informant admitted in his testimony that the appellant Manoj Pal had infilicted single blow on his arm. 8. P.W. 1 Deobaran Pal was examined by P.W. 6 Dr. Ram Naresh Singh Diwakar on 24.7.1997 at Sadar Hospital, Garhwa and following injuries were found:- (i) Lacerated wound 2" x 1/4" x' bone deep on anterior portion of vault of scalp. (ii) Lacerated wound 2%" x 1/4" x bone deep on right parietal region. (iii) Diffused swelling with tenderness on posterior part and mid portion of left forearm with fracture of underlying bone. Injury Nos. (i) and (ii), in the opinion of the Doctor, were found to be simple but Injury No. (iii) was grievous in nature caused by hard and blunt substance within 24 hours and being called upon, Doctor suggested that assault could be caused by back portion of Gadasa. On the same day, the witness had examined P.W. 3 Arjun Pal and found following injuries: (i) Lacerated wound 2" x 1/4" x bone deep on vault of scalp. (ii) Diffused swelling and tenderness on the right shoulder. Injury No. (i) was found to be simple, whereas the opinion relating to Injury No. (ii) was kept reserved. On the same day, the witness had examined P.W. 3 Arjun Pal and found following injuries: (i) Lacerated wound 2" x 1/4" x bone deep on vault of scalp. (ii) Diffused swelling and tenderness on the right shoulder. Injury No. (i) was found to be simple, whereas the opinion relating to Injury No. (ii) was kept reserved. Both caused by hard and blunt substance. On the same day, he examined P.W.5 Bihari Pal (informant) and found diffused swelling with tenderness on posterior and upper part of right forearm. Injuries were simple in nature caused by hard and blunt substance within 12 hours. Mother of the informant Laxmi Devi was examined on the same day and diffused swelling on her right shoulder was found with complain of pain on the body. Injury was found to be simple caused by hard and blunt substance within 12 hours. He proved the injuries reports as Exts.1 to 1/3 respectively. In the cross-examination, the Doctor clearly stated that none of the injuries found on the person .of Deobaran Pal could have been caused by sharp edge (portion) of Gadasa. Diffused swellings and lacerated wounds were possible by fall. 9. Mr. Jaiswal finally submitted that the appellant No. 1 Sheobaran Pal was convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years, whereas appellant No. 2 Ramchandra Pal was convicted under Section 324 of the Indian Penal Code for causing injury with an axe and appellant No. 3 Manoj Pal was convicted under Section 323 of the' Indian Penal Code for the injury caused by stick. However, no substantive sentence was awarded to these two appellants viz. Ramchandra Pal and Manoj Pal and they were asked to execute bonds to maintain peace and be of good behaviour under Section 4(1) of the Probation of Offenders Act. 10. From careful perusal of the entire evidence on the record and appreciation of the argument made for and on behalf of the appellants, I find that no offence much less the offence under Section 307 of the Indian Penal Code is attracted against the appellant Sheobaran Pal. According to the informant, and the other witnesses, the appellants herein were present from before at the alleged place of occurrence but without any weapon. According to the informant, and the other witnesses, the appellants herein were present from before at the alleged place of occurrence but without any weapon. When the informant arrived at the scene, it was the appellant Manoj Pal against whom there was allegation that he dealt blow by means of lathi upon P.W. 5 Bihari Pal (informant) and in the meantime, the other accused persons brought weapons like Farsa and Tangi. It was further alleged that when P.W. 1 Deobaran Pal proceeded forward to save his son P.W. 5 Bihari Pal, it was the appellant Sheobaran Pal who inflicted blows by means of Farsa but P.W. 6 Dr. Ram Naresh Singh Diwakar was clear in his examination-in-chief as well as in cross-examination that no corresponding injury alleged to be caused by the edged portion of Farsa which is a sharp cut heavy weapon in 'middle bracket' shape was found. When called upon by the prosecution, the Doctor suggested that such injuries were possible from the back side of Farsa and not from the edged side. Inference can well be drawn thereby that the appellant Sheobaran Pal had no intention to commit murder and had it been there, he might had used the edged portion of Farsa and in that case, single blow with Farsa could have caused fatal. Even there was no intervening circumstance which could prevent the appellant Sheobaran Pal if he determined to commit murder and therefore, for want of mens rea the conviction of the appellant under Section 307 of the Indian Penal Code cannot be sustained which calls for interference in appeal. 11. The learned counsel pointed out that altogether eleven accused were put on trial including the appellants after framing of charge but the prosecution failed to prove charges against other accused persons except the appellants and in this manner eight accused were found to be innocent. Finally the counsel submitted that parties to the dispute are agnates, i.e. descendants of common ancestor who have resolved their disputes and living cordially without interfering in the interest of others. But compromise petition could not be filed at any stage of trial or appeal, hence this appeal may be considered from this point of view also. 12. Heard Mr. Md. But compromise petition could not be filed at any stage of trial or appeal, hence this appeal may be considered from this point of view also. 12. Heard Mr. Md. Hatim, the learned A.P.P. on behalf of the respondent-State at length, who very fairly conceded that in the facts and circumstances, conviction of appellant No.1 Sheobaran Pal for the alleged offence under Section 307 of the Indian Penal Code calls for reconsideration but keeping in view the grievous injury on the person of the victim P.W.1 Deobaran Pal found and held to be caused by the appellant Sheobaran Pal, the requirement for constituting the offence under Section 325 of the Indian Penal Code is fulfilled, as such, his conviction may be considered under Section 325 of the Indian Penal Code. 13. Having regard to the facts and circumstances of the case, keeping in view the argument advanced on behalf of the parties, I find substance that in the given situation, the offence under Section 307 of the Indian Penal Code is not attracted against the appellant Sheobaran Pal, who has been convicted under Section 307 of the Indian Penal Code. 14. Case of the prosecution was that the appellant Sheobaran Pal had inflicted blows on the head of Deobaran Pal by means of Gadasa which is a sharp cut heavy weapon but no corresponding injuries caused by edged portion were found on the person of the victim. At the same time, the Doctor suggested that the injuries found on the head of the victim were possible if caused by back portion of Gadasa. Such injuries were simple in nature as were bone deep. I find substance in the argument that had there been intention of the appellant Sheobaran Pal to commit murder, there was no intervening circumstance to prevent him and single blow from the edged portion of Gadasa could have caused fatal. I find that this appellant was cautious and did not use edged portion as such Section 307 of the Indian Penal Code could not be attracted against the appellant, however, keeping in view that the 3rd injury that was found on the head of Deobaran Pal alleged to be caused by Sheobaran Pal was grievous in nature, as such, conviction of the appellant Sheobaran Pal is maintainable under Section 325 of the Indian Penal Code and not under Section 307 of the Indian Penal Code. I further find from the facts and circumstances of the case that the trial Court has taken rational view by convicting the appellant Ramchandra Pal under Section 324 of the Indian Penal Code and the appellant Manoj Pal under Section 323 of the Indian Penal Code as discussed in foregoing paragraphs and they have been enlarged on executing bonds under the Probation of Offenders Act, 1958 which does not call for interference. In the result, conviction of the appellant Sheobaran Pal under Section 307 of the Indian Penal Code is modified and instead thereof, he is convicted under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. He is directed to surrender in the Court concerned to serve out the sentence with set off. Otherwise, trial Court would take effective and coercive steps. 15. With such modification in the sentence of appellant No.1 Sheobaran Pal, this criminal appeal is dismissed.