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2011 DIGILAW 61 (JHR)

Nilamber Vaid v. State of Jharkhand

2011-02-01

D.K.SINHA

body2011
JUDGMENT D.K. Sinha, J.--The instant appeal is directed against the judgment dated 5.9.2002 passed by Sri C. Tanti, 4th Additional Sessions Judge, Dumka in S.C. No. 180 of 1998/6 of 2002 by which the sole appellant was held guilty for the charge under Section 323 of the Indian Penal Code and was released on executing probation bond of Rs. 4,000/- with two sureties with the direction to maintain peace and be of good behaviour for a period of two years under the provision of Section 4 of the Probation of Offenders Act. 2. The prosecution story in short was that on 14.7.1997 while the informant Shaligram Vaid was doing cultivation work in the field at about 11 a.m. by ploughing his land, in the meantime, his cousin sister Sahodra Devi (co-accused) came and asked as to why he had cut the ridges of her field which resulted into altercation between them which was intervened by the appellant Nilamber Vaid who snatched the spade from the hands of the informant and inflicted injury on his head as a result of which the informant fell down on the earth on sustaining injury. The informant was removed by his younger brother Deonarayan Vaid to Jarmundi Hospital where he was treated. The accused escaped after assaulting the informant taking away his spade. On the statement of the informant Jarmundi P.S. Case No. 86 of 1997 was registered on 14.7.1997 for the offence under Sections 341/323/324/ 307 of the Indian Penal Code against the appellant Nilamber Vaid and his wife Sahodra Devi. Admittedly, the appellant is the husband of the cousin Sahodra Devi of the informant Shaligram Vaid. After investigation charge-sheet was submitted for the alleged offence under Sections 323/324/307 of the Indian Penal Code against both the accused and thereafter the case was committed to the Court of Sessions. 3. As many as seven witnesses were produced and examined on behalf of the prosecution. 4. Mr. Manoj Tandon, the learned counsel appearing on behalf of the appellant submitted that no legal evidence has been brought about on the record so as to attract the conviction of the appellant under Section 323 of the Indian Penal Code. 3. As many as seven witnesses were produced and examined on behalf of the prosecution. 4. Mr. Manoj Tandon, the learned counsel appearing on behalf of the appellant submitted that no legal evidence has been brought about on the record so as to attract the conviction of the appellant under Section 323 of the Indian Penal Code. It would be relevant to mention that child against the accused were framed under Sections 307/34 of the Indian Penal Code and separate charge against the appellant Nilamber Vaid was also framed under Section 324 of the Indian Penal Code but none of the charges could be proved in course of trial by the prosecution and the appellant was convicted merely on suspicion under Section 323 of the Indian Penal Code which cannot be sustained under law. The allegation against the appellant under Sections 307/34 of the Indian Penal Code could not be substantiated by the evidence though P.W.6 Dr. Shambhu Ghose examined on behalf of the prosecution testified that he had examined the injured Shaligram Vaid on 14.7.1997 at Referral Hospital, Jarmundi and found one lacerated cut wound 1" x ¼" x ¼" over outer part of occipital region of his scalp in the midline with the margins separated. The age of the injury was assessed about 6 hours old. In the opinion of the Doctor the injury appeared to be caused by hard and blunt substance. On the X-ray of skull no bone injury was detected so in his opinion the injury on the skull of the informant was simple in nature, however, the doctor admitted that such injury could be possible by fall on the hard and blunt substance. 5. P.W.1 Ramprasad Vaid was not the eye witness of the occurrence but claimed having seen blood oozing out from the head of the informant. P.W.2 Govind Prakash Rakesh, P.W.3 Chamaklal Vaid and P.W.4 Bhuwneshwar Vaid were also not the eye witnesses of the occurrence and they were consistent by claimed having seen the blood oozing out from the head of the informant and learnt about altercation which took place between Sahodra Devi and Shaligram Vaid which was interfered by the appellant Nilamber Vaid and that the latter assaulted the informant with spade. Their testimony was based upon hearsay. 6. Their testimony was based upon hearsay. 6. P.W.7 Ranjan Kumar Linda, the Investigating Officer of the case admitted in his testimony having recorded the fardbeyan (Ext.-3) of the informant Shaligram Vaid at Referral Hospital, Jarmundi. He proved formal FIR (Ext.-4) and visited the place of occurrence but he did not find any mark of cutting of ridge except that the field was ploughed and the learned counsel for the appellant submitted that the prosecution failed to prove the very genesis of the alleged occurrence. 7. DW-1 Sushil Kumar Vaid was the solitary evidence examined on behalf of the defence who was the son of the appellant. He proved the written report of Jarmundi P.S. Case No. 87 of 1997 in his pen and signature scribed on the dictation of his mother Sahodra Devi which was read over to her and having found the facts correct she put her signature (Ext.- A). 8. Advancing his argument Mr. Tandon, the learned counsel for the appellant submitted that the occurrence as alleged did not take place in the manner presented by the prosecution. As a matter of fact co-accused Sahodra Devi who was later on acquitted had lodged FIR giving rise to Jarmundi P.S. Case No. 87 of 1997 on the same day on 14.7.1997 wherein she alleged that while Shaligram Vaid and his brother Deonarayan Vaid were ploughing their field and were trying to amalgamate her field by cutting the ridge, she went there and opposed to which Shaligram Vaid started abusing her. She was subject to assault by them as a result of which she fell down and both of them again assaulted her with sticks, kicks and fists. In the meantime her husband came and he began to snatch the spade from the hands of the informant and in said scuffle Sahodra Devi as well as Shaligram Vaid both sustained injuries. It was not the fact that her husband Nilamber Vaid inflicted blow by means of spade on his head causing injury and if at all there was injury sustained by the informant it was caused during course of scuffle and therefore allegation levelled against the appellant was false and concocted. 9. Heard Mr. Hatim, the learned A.P.P. appearing on behalf of the State-Respondent. Mr. 9. Heard Mr. Hatim, the learned A.P.P. appearing on behalf of the State-Respondent. Mr. Hatim submitted that admittedly charges under Sections 307/324/ 34 of the Indian Penal Code could not be proved but the material available on the record including the injury report of the informant and the testimony of the P.W. 6 Dr. Shambhu Ghosh indicated that the head injury of the informant was simple in nature. The other witnesses were consistent in their testimony having seen blood oozing out from the head of the informant and the trial court was judicious to consider that the injury caused to the informant by the appellant attracting the offence under Section 323 of the Indian Penal Code. 10. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, I find that though the appellant stood charged as framed under Section 307/324/34 of the Indian Penal Code but neither his intention could be proved so as to attract the offence under Section 307 of the Indian Penal Code nor any such injury was found on his head or on any part of his body which could easily constitute the offence under Section 324 of the Indian Penal Code, yet, since the injury found on the head of the informant was simple in nature held to be caused by the appellant. I find that the trial court was justified in holding the accused guilty under Section 323 of the Indian Penal Code and in this connection the trial court relied upon the statements of the informant and the other witnesses who arrived at the scene. Admittedly there was no eye witness of the occurrence except the statement of the injured witness but factum of altercation was supported in the evidence of the D.W. 1 who proved the FIR of Jarmundi P.S. Case No. 87 of 1997 brought about Sahodra Devi i.e. wife of the appellant who admitted in his fardbeyan about the altercation with the participation of the appellant husband therein. The learned counsel appearing on behalf of the appellant failed to show any illegality or irregularity or that the judgment in the facts and circumstances was perverse so as to call for interference of this court in its appellate jurisdiction. I do not find merit in this appeal. Accordingly, it is dismissed. The learned counsel appearing on behalf of the appellant failed to show any illegality or irregularity or that the judgment in the facts and circumstances was perverse so as to call for interference of this court in its appellate jurisdiction. I do not find merit in this appeal. Accordingly, it is dismissed. The judgment and order recorded by the 4th Additional Sessions Judge, Dumka in Sessions Trial No. 180 of 1998/6 of 2002 is affirmed.