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2014 DIGILAW 813 (JHR)

Umesh Thakur v. State of Jharkhand

2014-07-31

D.N.UPADHYAY

body2014
JUDGMENT This appeal has been preferred against the judgment of conviction and order of sentence dated 16th September, 2002 passed by Additional Sessions Judge, F.T.C.III, Bokaro, in connection with S.T. Case No.203 of 1997, whereby the appellants have been held guilty for the offences punishable under Sections 148 and 324 of the Indian Penal Code and, accordingly, they have been sentenced to undergo rigorous imprisonment for one and half years (eighteen months) under each of the sections i.e. Sections 148 and 324 of the Indian Penal Code. The sentences were directed to be run consecutively. 2. The prosecution case, in brief, is that on 6th February, 1996, at about 7:00 a.m., when the informant was going to attend his duty, some altercation took place between the informant and his uncle Jagdish Thakur. In the meantime, sons of Jagdish Thakur, who have been pleaded as accused, armed with deadly weapon reached to the place. Umesh Thakur (Appellant No.1) ordered to assault and it was followed by rest of the appellants. It is alleged that Jagdish Thakur and Sanjay Thakur caused injury to the informant and his father by means of Farsa, whereas other accused had assaulted the informant and others by means of Lathi, iron rod etc. In the incident, the informant Bhola Nath Thakur, his two brothers, namely, Lakhan Lal Thakur and Saryu Thakur and their father Hari Lal Thakur had sustained injuries on their persons. The occurrence was witnessed by nearby people. 3. On the basis of the written report lodged by Bhola Nath Thakur (P.W.8), Balidih P.S. Case No.11 of 1996 dated 6th February, 1996 under Sections 323, 324, 341, 307 and 34 of the Indian Penal Code was registered against the appellants/accused. 4. The police after due investigation submitted charge sheet under Sections 147, 148, 323, 324, 326, 341 and 307 of the Indian Penal Code and, accordingly, cognizance was taken. Since the offence under Section 307 of the Indian Penal Code is triable by the Court of Sessions, the case was committed to the Court of Sessions and after commitment, the record was transferred to the court of learned Additional Sessions Judge, F.T.C.III for its trial and disposal. The charges under Sections 148 and 307 read with Section 149 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and hence put on trial. 5. The charges under Sections 148 and 307 read with Section 149 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and hence put on trial. 5. The prosecution has examined altogether eight witnesses to substantiate the charges. Learned Additional Sessions Judge at the conclusion of trial held the appellants guilty for the offences punishable under Sections 148 and 324 of the Indian Penal Code and inflicted the sentence as indicated above. 6. The appellants have assailed the impugned judgment on the ground that the charge framed under Section 148 of the Indian Penal Code is defective, as per the prosecution case and the evidence available on record, the witnesses have not given consistent statement as to which of the accused was armed with deadly weapon. There are vital contradictions in the statements of witnesses. Somewhere they have stated that accused Sanjay Thakur was armed with iron rod and somewhere they have said that he was holding Farsa in his hand. Likewise the statements of witnesses regarding the weapon used by accused Jagdish Thakur are also not consistent. 7. It is further contended that no charge under Section 324 of the Indian Penal Code simpliciter has been framed against any of the accused but the learned Additional Sessions Judge has held all the appellants guilty for the offence punishable under Section 324 of the Indian Penal Code without seeking help of either Section 34 or Section 149 of the Indian Penal Code. It was pointed out that no injury report has been proved, therefore, no accused should have been held guilty for the offence punishable under Section 324 of the Indian Penal Code. The impugned judgment is highly erroneous, misconstrued on facts as well as law and the same is liable to be set aside. 8. On the other hand, counsel appearing for the respondent has vehemently opposed the argument and submitted that Bhola Nath Thakur (P.W.8), Hari Lal Thakur (P.W.4), Saryu Thakur (P.W.3) and Lakhan Lal Thakur (P.W.1) are injured witnesses and they have fully supported the prosecution case. They have elaborately explained the manner of occurrence and the injuries caused to them by naming the accused. Not only that, Sibu Parmanik (P.W.5), Khilu Manjhi (P.W.6) and Kajal Parmanik (P.W.7), who are independent witnesses, have also corroborated the prosecution case. They have elaborately explained the manner of occurrence and the injuries caused to them by naming the accused. Not only that, Sibu Parmanik (P.W.5), Khilu Manjhi (P.W.6) and Kajal Parmanik (P.W.7), who are independent witnesses, have also corroborated the prosecution case. Learned Additional Sessions Judge has rightly passed the impugned judgment and inflicted sentence, which need no interference. 9. I have gone through the impugned judgment, lower court record, evidence adduced and documents marked as exhibits. It is admitted case of the prosecution that all the accused were not armed with deadly weapon and the rioting with deadly weapon was not committed by all of them. The charge framed under Section 148 of the Indian Penal Code appears to be defective in the sense that the accused persons who were armed with deadly weapon as well as the accused persons who were not armed with any deadly weapon have been charged together under Section 148 of the Indian Penal Code. The appellants accused, who were not armed with deadly weapon have also been held guilty for the offence punishable under Section 148 of the Indian Penal Code. The accused persons, who were armed with deadly weapon, should have been separately charged under Section 148 of the Indian Penal Code and the accused persons, who were not having deadly weapon at the time of committing rioting, should have been charged under Section 147 of the Indian Penal Code. Admittedly no charge under Section 147 of the Indian Penal Code has been framed against any of the appellants. Since the learned Additional Sessions Judge has clubbed all the accused together for the purpose of framing charge under Section 148 of the Indian Penal Code, it appears apparently incorrect and, therefore, the conviction of the appellants under Section 148 of the Indian Penal Code cannot be sustained and stands set aside. 10. Since the learned Additional Sessions Judge has clubbed all the accused together for the purpose of framing charge under Section 148 of the Indian Penal Code, it appears apparently incorrect and, therefore, the conviction of the appellants under Section 148 of the Indian Penal Code cannot be sustained and stands set aside. 10. Now coming to the offence punishable under Section 324 of the Indian Penal Code, the conviction of the appellants under Section 324 of the Indian Penal Code is also incorrect and illegal in view of the fact that no charge simpliciter under Section 324 of the Indian Penal Code has been framed against any of the appellants and the learned Additional Sessions Judge has not taken help of either Section 34 or Section 149 of the Indian Penal Code for holding all the appellants guilty for the offence punishable under Section 324 of the Indian Penal Code. 11. Now coming to the evidence on record it appears that Bhola Nath Thakur (P.W.8informant) has fully supported the prosecution case. He has stated that while he left home for attending his duty, the incident took place in front of the house. They suddenly appeared and assaulted the informant by means of Lathi, Farsa etc. Hari Lal Thakur (P.W.4), who happened to be the father of the informant, was also assaulted by the appellants. Likewise Lakhan Lal Thakur (P.W.1) and Saryu Thakur (P.W.3), who were brothers of the informant, had sustained injuries caused to them by accused persons in the incident. All these four injured witnesses have supported the prosecution case, barring few contradictions in their statements with regard to weapon held by each of the accused/appellants. The depositions of P.Ws.1, 3, 4 and 8, finds corroboration from the evidence of P.Ws.5, 6 & 7, who were present at a tea stall, situated near the place of occurrence. Thus, the prosecution evidence, on the point of assault, has consistently been proved by the prosecution witnesses. 12. The lacunae, which the prosecution has left, is non-examination of the doctor as well as the Investigating Officer and due to that injury report, if any available with the prosecution, has not been proved. In absence of injury report, the nature of injury inflicted on the victim cannot be conclusively opined. 12. The lacunae, which the prosecution has left, is non-examination of the doctor as well as the Investigating Officer and due to that injury report, if any available with the prosecution, has not been proved. In absence of injury report, the nature of injury inflicted on the victim cannot be conclusively opined. Furthermore, no appellant has been charged simpliciter under Section 324 of the Indian Penal Code and, therefore, the conviction of the appellants under Section 324 of the Indian Penal Code is also unwarranted, but the fact remains that the informant, his two brothers (P.Ws.1 and 3) and his father (P.W.4) have been assaulted by the accused/appellants and the occurrence was witnessed by independent witnesses. It is also apparent from the evidence on record that all the appellants had participated in causing assault to the informant and other injured. 13. In the circumstances, the appellants cannot escape from getting punishment under Section 323 of the Indian Penal Code and, therefore, the conviction and sentence passed against them under Section 324 of the Indian Penal Code is set aside, but the appellants are held guilty for the offence punishable under Section 323 of the Indian Penal Code. 14. It appears from the evidence on record that the appellants as well as the informant party are closely related. Hari Lal Thakur (P.W.4) and Jagdish Thakur (Appellant No.7) are the brothers. Lakhan Lal Thakur (P.W.1) and Saryu Thakur (P.W.3) are sons of Hari Lal Thakur (P.W.4), whereas Appellant Nos.1 to 6 are sons of Jagdish Thakur (Appellant No.7). The reason behind the dispute also appears to be petty in nature. As indicated by the witnesses, the incident took place on account of extending CHHAJJA of the house, touching to the house of the accused persons. 15. Considering all these aspects, instead of inflicting substantive punishment, I feel it desirable to give the benefit of the provision of Section 4 of the Probation of Offenders Act and, accordingly, each of the appellants are directed to furnish surety bond of Rs.10,000/(rupees ten thousand) with two sureties for keeping peace and good behaviour for two years from the date of furnishing surety bond. 16. The appellants shall furnish surety bond within six weeks from today. In case of their failure in complying with the condition of surety bond, they shall be called upon to receive the sentence. 17. 16. The appellants shall furnish surety bond within six weeks from today. In case of their failure in complying with the condition of surety bond, they shall be called upon to receive the sentence. 17. With the said modification in the impugned judgment of conviction and order of sentence, the appeal stands disposed of. 18. Let a copy of this order be sent through fax at the cost of the appellants to the convicting/successor court.