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2015 DIGILAW 1208 (JHR)

Bhagiran Prasad v. State of Jharkhand

2015-10-01

RATNAKER BHENGRA

body2015
JUDGMENT : RATNAKER BHENGRA, J. 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 13.9.2002 passed by Shri Gitendra Kumar Singh, Additional District and Sessions Judge, Fast Track Court No. 4 Jamshedpur in S.T. No. 279 of 1996 whereby and whereunder appellant had been sentenced to undergo R.I. for two years under Section 325 of the Indian Penal Code. 2. The prosecution story in short is that on 15.9.1995 at about 21 hours while informant had gone to Jogabera Market for his business transaction, a boy of his locality came to him and informed that Krishna Prasad, his mother and Baby his sister have been assaulting Fua on her home. After getting this information that his wife was being assaulted by accused persons the informant at once reached his house and saw that aforesaid persons have badly assaulted his wife namely Sundar Baso Devi and she had fallen on the ground. Informant enquired about the matter and came to know that his Buffalo had eaten louky (gourd) of the accused persons. Due to his questioning, accused Bhagiran Prasad and Krishna Prasad started to attack him on his head with Lathis which caused injury on the right and left hand of informant. He also sustained some head injury and there was some bleeding on his head. All the accused persons assaulted the informant and his wife by means of lathi and danda. 3. One Rajesh Yadav took them from there and by tempo he brought the informant and his wife to Hospital for their treatment. Informant and his wife got admitted to M.G.M. Hospital at Jamshedpur and a Fardbeyan of informant was taken by police. On the basis of fardbeyan of informant a case was registered U/Ss. 341/323 and 307/34 of the Indian Penal Code. After investigation charge-sheet has been submitted against the accused persons U/ss. 341/323/325/307/34 IPC and accordingly cognizance was taken in this case. 4. Charge has been framed against the accused persons and explained to them to which they pleaded not guilty and claimed to be tried. 5. Altogether eight witnesses have been examined on behalf of prosecution, in which prosecution witness nos. 5 to 8 are hostile witnesses. PW-1 is Sundarbaso Devi, she is one of the victims of the case. PW-2 is Laxman Yadav, he is the informant and one of the victims of the case. 5. Altogether eight witnesses have been examined on behalf of prosecution, in which prosecution witness nos. 5 to 8 are hostile witnesses. PW-1 is Sundarbaso Devi, she is one of the victims of the case. PW-2 is Laxman Yadav, he is the informant and one of the victims of the case. PW-3 is Dr. D.K. Sinha who has examined the injured persons and submitted his injury report, after examination of the injured persons. PW-4 is Gita @ Sita, daughter of informant. PW-5 is Binod Singh, PW-6 is Motilal Mahato, PW-7 is Balaram Singh and PW-8 is Jogeswar Mahato. They are hostile witnesses. From prosecution side Ext. No.1 is signature on Fardbeyan of Laxman Yadav. Ext. No. 2 is injury report of Laxman Yadav, Ext. no. 2/A is injury report of Sundarbaso Devi and Ext. No. 3 is FIR. No witness has been examined on behalf of defence. On the basis of aforesaid evidence it is to be considered whether the prosecution is able to prove its case beyond all reasonable doubts or not? 6. PW-2 Laxman Yadav has stated in his deposition that occurrence has taken place on 15.9.1995 at about 9 p.m. when he had gone to Jogabera Market for some business transaction. At that time his daughter Sita reached there and informed him that some persons are beating her mother and she has died. Informant rushed to his house and saw that his wife Sundarbaso Devi had fallen on the ground. She was injured. He asked the accused Bhagiran why they had beaten his wife. At which Bhagiran ordered his men to beat the informant. Accused Bhagiran, Krishna, Baby assaulted the informant by wooden patti of a Khat. He further stated that his left arm and right hand were fractured and he also sustained injury on his head. All the accused persons wanted to kill the informant. Due to act of accused persons, informant and his wife got many injuries and to save themselves they entered into their house. He further stated that he reached M.G.M. Hospital along with his wife by one Tempo where police had taken his fardbeyan. He identified his signature on the fardbeyan which has been marked as Ext.1. He also identified Bhagiran who was present in the Court at the time of his evidence. 7. He further stated that he reached M.G.M. Hospital along with his wife by one Tempo where police had taken his fardbeyan. He identified his signature on the fardbeyan which has been marked as Ext.1. He also identified Bhagiran who was present in the Court at the time of his evidence. 7. PW-1 is Sundarbaso Devi, she stated in her evidence that at about 9 p.m. her buffalo went near the house of accused persons and she came there to bring her buffalo, then accused Bhagiran informed that her buffalo has eaten his louky (Gourd) which she denied it. On hearing this the accused Bhagiran, Krishna Prasad, Shanti Devi and Baby Kumari started beating her and they assaulted her by means of lathi, danda and one wooden patti and injured her on the head. She fell down on the ground. After that a child had informed the woman's husband about the occurrence. After that informant reached there, and then accused Bhagiran assaulted the informant also by means of wooden patti, targetting his head and in the course of saving himself both hands of the informant were fractured. They intended to kill us. That when they were going to hospital the accused then threatened them. She identified the accused Bhagiran who was present in the court at the time of evidence and said she can also identify other accused persons. 8. PW-4 is Gita @ Sita she stated in her statement that the occurrence took place on 15.9.1995 at about 6 p.m. while she was studying and her mother was doing kitchen work, their buffalo had eaten louky (gourd) of accused persons. Her mother went to bring her buffalo and at that time wife of Bhagiran, Shanti and his daughter Baby started beating her mother. Some injuries were caused to her mother and she fell down. She ran to inform her father and went to the hotel which was situated at Jogabera Market. She further stated in her statement that she informed her father that accused persons were assaulting her mother. After getting this information her father ran and reached the place of occurrence. He asked Bhagiran why he assaulted his wife. On hearing this accused Bhagiran and accused Krishna started assaulting the informant. They assaulted her father by a wooden patti and both hands of her father were fractured. After getting this information her father ran and reached the place of occurrence. He asked Bhagiran why he assaulted his wife. On hearing this accused Bhagiran and accused Krishna started assaulting the informant. They assaulted her father by a wooden patti and both hands of her father were fractured. She further stated that her mother also sustained some injury on her head. Both were hospitalized and got treatment there. She also identified accused Bhagiran who was present at the time of evidence. 9. PW-3 is Dr. D.K. Sinha who has examined both the injured persons. The injury report of Laxman Yadav has been marked as Ext.2 and the injury report of Sundarbaso Devi has been marked as Ext. 2(A). In his evidence he has stated that on 15.9.1995 at about 11:05 p.m. he examined Laxman Yadav and found the injury on his person which is fully described by him in his evidence and his injury report which is marked as Ext.2. 10. From perusal of injury report of Laxman Yadav (Ext.2) it appears that Laxman Yadav got altogether four injuries. No. 1 injury is diffuse swelling over middle of left forearm 2'' x 2''. No. 2 injury is one diffuse tender swelling over middle of right forearm 2'' x 2''. No. 3 injury is pain over left shoulder. No.4 injury is one abrasion 1'' x 1'' over center of scalp. Xray of left forearm, right forearm and left shoulder shows fracture of left radius shaft, right ulna shaft and left Clavicle bones. 11. It appears from Ext.2 that injury No. 1, 2 and 3 are grievous in nature while injury no.4 is simple caused by some hard blunt substance. From perusal of Ext.2/A, it appears that wife of informant Sundarbaso Devi got one injury which is lacerated wound over her scalp which is simple in nature caused by hard blunt substance. PW-5, 6, 7, 8 are hostile witnesses and they have not supported the case of prosecution. 12. Learned counsel for the appellant submitted that the accused did not directly take part in the assault. 13. Moreover, if he may have hit him, the intention to cause him any injury was not there. Rather, the informant moved his hands and he was hit on the hands by the accused persons. Counsel for the appellant also submitted that the assault was not repeatative. 13. Moreover, if he may have hit him, the intention to cause him any injury was not there. Rather, the informant moved his hands and he was hit on the hands by the accused persons. Counsel for the appellant also submitted that the assault was not repeatative. There was no intention to hit on head or there was no intention to kill or that they were repeatedly assaulting the injured persons is also not made out from the judgment of the trial court. 14. Learned counsel for the appellant claimed that first and foremost there was provocation from the side of the informant. That their grown vegetable, louky (gourd) was eaten by the buffalo of the informant. The wife of the informant denied this, hence, further they started arguing. When the husband reached there he also sought to know what was happening, rather than accepting that their buffalo had eaten the louky (gourd) of the appellant. Hence, the provocation continued. There was no preparation or elaborate preparation for the assaults which shows that there was no intention. He also submitted that prosecution witnesses nos. 5, 6, 7 and 8 have turned hostile. 15. Learned counsel for the State/APP Submitted that the appellant is guilty and deserve the punishment. He refers to the deposition of PW-1 who has stated that Bhagiran had wooden patti, Krishna had lathi and that even the ladies had lathis in their hands. She also stated that her husband's hands were fractured when he attempted to self defend himself. However, that assailants had assaulted with intent to kill. 16. Learned counsel for the State had then referred to the deposition of PW-2, Laxman Yadav, victim and informant. As submitted by the APP, Yadav's daughter Sita informed him that her mother had died due to assaults from the assailants/appellant. That he then rushed to the place of occurrence and saw that his wife was lying on the ground and he picked her up. He said that his wife's head was broken. He questioned the assailants but in response Bhagiran, Krishna and Baby started assaulting him too with wooden patti and lathi and my hands were broke. He was injured and they wanted to kill him. They further threatened that if he came out of his house he will be killed. 17. He said that his wife's head was broken. He questioned the assailants but in response Bhagiran, Krishna and Baby started assaulting him too with wooden patti and lathi and my hands were broke. He was injured and they wanted to kill him. They further threatened that if he came out of his house he will be killed. 17. Then the daughter of the victims PW-1 and PW-2 (informant) is mentioned by the learned counsel for the State as being PW-4 and also an eyewitness to the assault. According to learned APP. PW-4 has also in her deposition stated that her parents/ mother and father were assaulted by wooden patti and her mother's head was injured. The daughter has admitted previous dispute and case between the opposing party. 18. Finally, learned APP submits that intention was clearly there, and said buffalo grazed the crops, as a consequence of which assault took place. The intention has further made out from the facts that all the assailants were carrying wooden patti and lathi and that the assaults were not restricted by a single blow, but repeated by the appellant. 19. Learned APP has also referred to the deposition of Dr. D.K. Sinha, PW-3. Dr. Sinha had examined both the informant husband and his wife, who were allegedly assaulted and the injuries were serious and of lathi and kath. FINDINGS 20. Having gone through the records of the case, heard the arguments of the learned counsels and the facts and circumstances of the case it is observed that:- The prosecution case is supported by the evidences of the injured victim PW-1 and PW-2. The deposition of the doctor lends credence or corroboration to the fardbayan and evidence of PW-1 and PW-2. The daughter, PW-4 of the injured couple is also a witness and supported the deposition of her parents, PW-1 and PW-2. 21. On the other hand counsel for the appellant has not denied that the incident of assaults did not take place, but, that there was no intention of injury and that the assaults arose out of provocation caused on behalf of the victims or due to their buffalo. So at least it is admitted that assault did take place. 22. The question then is was the provocation so grave so as to assault the victims. So at least it is admitted that assault did take place. 22. The question then is was the provocation so grave so as to assault the victims. What was the offence, apparently, a buffalo of the victim family had eaten a louky/kaddu or gourd of the accused family. If one has to cost it, it would surely not amount to much. However, the incident so enraged the accused persons that they first assaulted the wife of the informant, or PW-1, Sundar Baso Devi. She had been assaulted in such a manner that she fell on the ground, and their daughter thought she was dead. The matter could have ended there. However, when the informant, the husband of PW-1 also came hurriedly to the place, he was assaulted leading to grievous injuries. Intention may not have been preplanned, meditated, but it was there. More particularly it seems in the case of the husband, when by then tempers should have been regained. The injury report and deposition also indicated serious injury and assault by hard and blunt substance. On the other hand it cannot be said that knowledge was lacking, particularly on the part of the elders, that being assaulted by four persons with lathi, dandas and patti would not result in serious and a grievous injury. In fact the Trial court judge while sentencing him had rightly observed that for a very little reason the accused had caused grievous injury to the informant and fractured both his arm and shoulder. 23. So looking into the records, arguments and facts and circumstances of the case, I find and hold that the offence under section 325 IPC against the sole appellant is sustained. Keeping in mind, his age, the domestic nature of the dispute, and the rigor of trial already undergone, the initial sentence imposed is reduced from two to one year. The period, if any, already spent by him in custody will be hence reduced from his total sentence. The petitioner seems to be on bail, he is directed to surrender within two weeks from the date of this order and if he fails to do so, the concerned court below may issue process to arrest him. 24. Hence, with above modification in sentence the appeal is dismissed.