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2010 DIGILAW 933 (JHR)

Balram Lohar v. State of Jharkhand

2010-09-23

PRADEEP KUMAR

body2010
JUDGMENT (1) HEARD the learned counsel for the appellants and the learned counsel for the State. (2) THE instant appeal is directed against the judgment of conviction and order of sentence dated 11.12.2002 passed in S.T. No.146 of 1988 by Shri B. K. Goswami, 2nd Additional Sessions Judge, Seraikella, by which he found the appellants guilty under Sections 148 and 307/149 of the Indian Penal Code and sentenced appellant No. 1 Balram Lohar to S.I. for two years and a fine of Rs. 2000/- under Section 307/149 of the Indian Penal Code and S.I. of five months and a fine of Rs. 1000/-under Section 148 of the Indian Penal Code, in default of fine the accused Balram Lohar shall undergo one month and fifteen days S.I. respectively and sentenced appellant Nos. 2 and 3 namely Bishu Lohar and Lelo Lohar to S.I. for five years and a fine of Rs. 5000/- under Section 307/149 of the Indian Penal Code and S.I. for one year each and a fine of Rs. 1000/- under Section 148 of the Indian Penal Code, in default of fine the accused Bishu Lohar and Lelo Lohar shall undergo two months and fifteen days S.I. respectively. Both the sentences shall run concurrently. It is submitted by the learned counsel for the appellants that it is an admitted fact that there is land dispute between appellants and his uncle. The informant had grabbed the land of the appellants by force. They had gone there only for raising objection. There is no allegation of assault by them. The assault was made only by the accused Lakhan Lohar, who died in the course of trial and as such, the conviction of the appellants under Sections 148 and 307/149 of the Indian Penal Code is bad in law and fit to be set aside. (3) ON the other hand, learned counsel for the State opposed the prayer and submits that since all these three appellants also helped the main accused Lakhan Lohar in causing assault on the person of injured informant causing grievous injury on his neck and as such, they have rightly been convicted as aforesaid. (3) ON the other hand, learned counsel for the State opposed the prayer and submits that since all these three appellants also helped the main accused Lakhan Lohar in causing assault on the person of injured informant causing grievous injury on his neck and as such, they have rightly been convicted as aforesaid. (4) AFTER hearing both the parties and going through the evidences, I find that prosecution case was started on the basis of fardbeyan given by the informant of the case P.W. 2 Binod Lohar stating therein that on 26.06.1987 at about 7.30 a.m. in the morning his uncle Lakhan Lohar along with Putu Lohar, Balram Lohar, Bishu Lohar and Lelo Lohar were uprooting the planted fence of the residential house of the informant whereupon he objected them then Lakhan Lohar armed with farsa, Balaram Lohar and Bishu Lohar armed with bow and arrow and Putu and Lelo nothing in their hands surrounded him and uttered filthy words. It is stated that Balram, Bishu and Lelo and Putu caught hold him, in the meanwhile Lakhan Lohar gave farsa blow on his back twice or thrice thereafter he fell down there. On the basis of the said fardbeyan, police registered a case under Sections 147,148, 149, 307 and 324 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case as aforesaid. Since, the case was exclusively triable by the court of Session, after taking cognizance learned Magistrate committed the case to the court of Session and subsequently, the case was tried by learned 2nd Additional Sessions Judge, Seraikella, who found the appellants guilty as aforesaid. (5) IT appears that in the course of the trial, the prosecution has examined as many as eight witnesses. P.W. 1, Dr. Gopal Chandra Mahto, is doctor. P.W. 2. Binod Lohar, informant of the case. P.W. 3. Birendra Kumar P.W. 4. Gunaram Manjhi P.W. 5. Menka Loharin P.W. 6. Shankar Lohar P.W.7. Kartik Mahant P.W.8. Ravindra Nath Pradhan P.W. 1, Dr. Gopal Chandra Mahto, is doctor, who examined the informant-injured P.W.2 Binod Lohar, found two injuries i.e. (i) incised wound on the left of the chest and back 9" x 1 1/2 " x whole thickness of the chest valve (ii) incised wound on the left side of the neck and upper part of the chest 4" x 3" bone deep and collar bone exposed. Injury No. 1 was grievous in nature and injury No. 2 was simple in nature. All the injuries were caused by sharp cutting instruments. P.W. 2. Binod Lohar, informant of the case, stated in his evidence that on the date of occurrence when he objected the appellants as to why they were uprooting the boundary of his bari, then all five appellants came there and caught hold of him and lakhan lohra, who had farsa in his hand, suddenly assaulted him by farsa from back causing injury on his neck and chest thereafter he fell down. He proved his signature and fardbeyan as Ext. 2. He admitted in his cross-examination that the land in question was in possession of Budu Lohar and he had purchased the same by registered sale-deed and he had taken possession of the land in question in the presence of the witnesses and necessary documents in this regard were prepared, but no such papers were filed in the Court. He denied that he had given loan to Buda Lohar and taken signature on the registered sale-deed in the guise for taking loan. P.W. 3. Birendra Kumar, is declared hostile. P.W. 4. Gunaram Manjhi, is also declared hostile. P.W. 5. Menka Loharin, stated that when the appellants were removing the boundary of her bari, her son Binod Lohar objected then they caught hold of him and from the back suddenly Lakhan Lohar gave farsa blow twice on him thereafter he fell down. She also stated that earlier there was a case with regard to the said bari and since the appellants lost the case, this occurrence took place. She also admitted in her cross-examination in para 6 that this bari land belongs to the accused Budu Lohar, which was purchased by her son. P.W. 6. Shankar Lohar, is nephew of the informant, also stated that when the accused persons were uprooting the boundary of bari land then informant objected them thereafter, they caught hold of him and from the back gave farsa blow on him. P.W.7. Kartik Mahant, is a formal witness, who has proved fardbeyan as Ext. 3. P.W.8. Ravindra Nath Pradhan, is a formal witness, who has proved fardbeyan and signature of the Investigating Officer. (6) THUS, from the evidences of witnesses, informant, mother of the informant P.W. 5 Menka Loharin and nephew of the informant P.W. 6. P.W.7. Kartik Mahant, is a formal witness, who has proved fardbeyan as Ext. 3. P.W.8. Ravindra Nath Pradhan, is a formal witness, who has proved fardbeyan and signature of the Investigating Officer. (6) THUS, from the evidences of witnesses, informant, mother of the informant P.W. 5 Menka Loharin and nephew of the informant P.W. 6. Shankar Lohar, it is clear that these appellants have neither intention to cause any injury nor they took part in any assault on the informant, but everybody was present on the place of occurrence and they caught hold of the informant Binod Lohar and subsequently, from the back Lakhan Lohar gave two farsa blows on the informant, in which one of the blows is grievous in nature. It is also admitted by mother of the informant that land belongs to the accused persons, which was purchased by her son. It was suggested to the informant that he had taken the signature of the owner of the land Budu Lohar on the sale deed in the guise of the loan given to Budu Lohar by the informant. THUS, from the evidences, it appears that it was the informant, who had given loan by force and although there is statement in the FIR that other accused persons were present at the place of occurrence, but they did not participate in the assault. In that view of the matter, these three appellants cannot be charged under Section 307/149 of the Indian Penal Code and their conviction and sentence under Section 307/149 of the Indian Penal Code is set aside. However, since they were members of unlawful assembly, they are convicted under Section 323/148 of the Indian Penal Code. The sentence against the appellants, is modified and reduced to the extent of the period of imprisonment, which the appellants has already undergone during trial and appeal. With the aforesaid alteration in the conviction and sentence, the appeal is allowed in part. Since, the appellants are on bail, they are released from the bondage of bail. Appeal partly allowed.