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2016 DIGILAW 1025 (JHR)

Surendra Rai v. State of Jharkhand

2016-07-12

RAVI NATH VERMA

body2016
JUDGMENT : R.N.Verma, J. Invoking the revisional jurisdiction of this Court under sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as "the Code") all the three petitioners have prayed for setting aside the judgment of conviction and order of sentence dated 12.05.2004 passed by Ist Assistant Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 109 of 1996 and affirmed by the Sessions Judge, Palamau at Daltonganj in Criminal Appeal No. 70 of 2004 with certain modification in the sentence. 2. The prosecution story in brief is that the informant Mandeep Rai (P.W.4) was sitting on his Darwaza on 15.11.1995 at 9 a.m. and watching his flour mill, when accused no. 1, Surendra Rai started quarreling with the grand son of Indradeo Rai (P.W.1), whereafter the informant and his brother Bishwanath Rai (P.W.5) tried to pacify the matter by scolding both of them. But in the meantime, petitioner no.1, Surendra Rai gave Garansa blow on the head of Bishwanath Rai, causing grievous injury. The other two petitioners namely, Murari Rai and Dhrub Rai, who were also holding lathi and sickle, assaulted the informant and his aunt. On the basis of said information, Lesliganj P.S.case no. 59 of 1995 was instituted under sections 341, 323, 324, 307/34 of the Indian Penal Code and after investigation, the police submitted the charge-sheet against the four named accused persons, whereafter cognizance of offence was taken but the case of the above three accused petitioners were only committed to the Court of Sessions. The case of the fourth accused, namely, Dilip Rai who was juvenile, was sent to Juvenile Court for inquiry under the Juvenile Justice Act. 3. The petitioners were put on trial by framing charge under section 307/34 of the Indian Penal Code. The prosecution in order to establish the guilt of the accused persons, examined altogether 12 witnesses including the injured Bishwanath Rai (P.W.5), Sarswati Devi (P.W.6) and the informant Mandeep Rai (P.W.4). The doctors , who had examined the other two injured persons were examined as P.W.10 and P.W.12. The doctor found one depressed fracture in the left side of frontal bone of injured Bishwanath Rai and the said injured was operated for depressed fracture and the depressed bone piece was removed. The doctor has opined that the nature of injury was grievous and the said injury report was marked as Ext.2. The doctor found one depressed fracture in the left side of frontal bone of injured Bishwanath Rai and the said injured was operated for depressed fracture and the depressed bone piece was removed. The doctor has opined that the nature of injury was grievous and the said injury report was marked as Ext.2. It has come in the evidence of P.W.10 that after examination of Bishwanath Rai by the doctors of Daltonganj Hospital, he was referred to RMCH, Ranchi, where he was admitted on 15.11.1995 and after treatment he was discharged on 25.11.1995. 4. The trial court after considering the evidence available on record, convicted petitioner no.1, Surendra Rai under section 307 of the Indian Penal Code and sentenced him to under go R.I for Five years. Petitioner no.2 and 3, namely, Murari Rai and Dhrub Rai were also convicted under section 323 of the Indian Penal Code. Accordingly, they were sentenced to under go R.I. for One year. The above petitioners being aggrieved by the said judgment of conviction and order of sentence, preferred Criminal Appeal before the Sessions Judge. The Appellate Court after hearing both the parties affirmed the judgment of conviction and order of sentence, but reduced the sentence of Surendra Rai from Five years to Three years with a fine of Rs.2000/- and the sentence awarded to other two petitioners, namely, Murari Rai and Dhrub Rai were also reduced from One year to Six months each with a fine of Rs.500/- each. Thereafter, the petitioners preferred this revision. 5. Mr. A.K.Kashyap, learned senior counsel appearing for the petitioners while assailing the judgment of conviction and order of sentence submitted that the two courts below failed to appreciate that there was no repetition of blow and only single injury was found by the doctor as such the conviction of the petitioner no.1, Surendra Rai under section 307 of the Indian Penal Code is bad in law and at best the conviction of petitioner no.1, Surendra Rai should have been under section 325 of the Indian Penal Code. It was also submitted that the 'X-ray report', relying upon which conviction has been made, has not been brought on record by the prosecution and the learned trial courts committed grave error of law by passing the order of conviction relying upon the said X-ray report. It was also submitted that the 'X-ray report', relying upon which conviction has been made, has not been brought on record by the prosecution and the learned trial courts committed grave error of law by passing the order of conviction relying upon the said X-ray report. The conviction and sentence is, therefore, not sustainable and calls for indulgence of this Court by setting aside the conviction and sentence. It was also submitted that even the courts below failed in not giving the benefit of Section 4 of Probation of Offenders Act or section 360 of the Code. Learned senior counsel further relying upon the principles laid down by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others : (2004)7 SCC 659 submitted that the three petitioners have faced the rigors of trial and appeal for more than 21 years, benefit of Probation of Offenders Act, 1958 may be granted to the them. 6. Contrary to the aforesaid submission, Mr. Mahesh Tewari, learned counsel appearing for the informant as well as the learned counsel appearing for the State seriously contended that all the injured witnesses examined by the prosecution have fully corroborated the prosecution story of alleged assault and in order to attract section 307 of the Indian Penal Code, causing hurt is sufficient. Even though there was only one injury but since it was on the vital part of the body of the injured, the trial court rightly convicted the petitioner no.1 under section 307 of the Indian Penal Code. Lastly, it was submitted that benefit of Section 4 of the Probation of Offenders Act cannot be given to petitioner no.1, Surendra Rai, who remained in custody for four months only. 7. Having heard learned counsel for the petitioner as well as the learned counsel appearing for the informant and the State and on perusal of the materials available on record, I find that the two courts have discussed the evidence of the prosecution witnesses in detail. One of the injured Bishwanath Rai(P.W.5) in his evidence has consistently narrated the version of assault, which has been corroborated by the injury report. Similarly, the other two injured witnesses are also consistent on the point of assault made by the petitioners. One of the injured Bishwanath Rai(P.W.5) in his evidence has consistently narrated the version of assault, which has been corroborated by the injury report. Similarly, the other two injured witnesses are also consistent on the point of assault made by the petitioners. The doctor (P.W.10), who had examined the said injured Bishwanath Rai has clearly testified that the injured Bishwanath Rai was operated by the Neuro Surgeon at RMCH, Ranchi for depressed facture of frontal bone and the blood clot and depressed bone pieces were removed. The nature of injury was grievous. Another doctor P.W.12 Dr. Awadhesh Kishor Upadhya had found only one lacerated wound on the side of the hand of injured Mandeep Rai. There is no injury report of third injured, namely, Sarswati Devi on record. 8. Thus, from the evidence of the witnesses, it appears that though one injury was found on the head of injured Bishwanath Rai(P.W.5) and the nature of injury was grievous, but the witnesses have no where testified that there was any intention to commit murder of Bishwanath Rai (P.W.5). Evidently, an altercation took place between the parties and the petitioner no.1, Surendra Rai assaulted Bishwanath Rai (P.W.5) on his head with Garansa. I find substance in the argument of the learned senior counsel that had there been any intention of petitioner no.1, Surendra Rai to commit murder, there was no intervening circumstance to prevent him from repeating the blow. Even, from the report of the doctor, it appears that back portion of Garansa was used, as the doctor has found one depressed fracture in the left side of the frontal bone. It means, petitioner no.1 Surendra Rai was cautious and did not use the sharp portion of the Garansa. As such, Section 307 of the Indian Penal Code can not be attracted against the petitioner no.1, Surendra Rai. 9. So far the contention of Mr. Kashyap, learned senior counsel for the petitioners that "X-ray report" of the injured was not produced in the court, I find that its non-production would not have made much of difference. It is a case of direct evidence. The witnesses appear to be reliable and trustworthy. 9. So far the contention of Mr. Kashyap, learned senior counsel for the petitioners that "X-ray report" of the injured was not produced in the court, I find that its non-production would not have made much of difference. It is a case of direct evidence. The witnesses appear to be reliable and trustworthy. On perusal of the evidence of witnesses, specially of the injured witnesses, it appears that even no suggestion was given by the defence that the injured Bishwanath Rai (P.W.5) got the injury somewhere else and that the said injured was never operated or treated for the said injury. Hence, I do not find any force in the submission of learned senior counsel. 10. However, considering the circumstances as discussed above, conviction of petitioner no.1 Surendra Rai is altered under section 325 of the Indian Penal Code from his conviction under section 307 of the Indian Penal Code. From the discussions made in the impugned judgment, it is apparently clear that the trial court has taken a rational view by convicting the other two petitioners under section 323 of the Indian Penal Code. 11. In the result, the conviction of petitioner no.1 Surendra Rai under section 307 of the Indian Penal Code is modified and altered and instead there of, he is convicted under section 325 of the Indian Penal Code. Since, petitioners have suffered rigors of trial and appeal for a long 21 years and the petitioner no.1 remained in custody for more than four months, in my opinion, the period already under gone by petitioner no.1 would be sufficient sentence in the interest of justice. Hence, his sentence is modified to the extent of period already undergone by him. The other two petitioners have also suffered rigors of trial and appeal, their sentences are also modified to the extent of the period already under gone. 12. With the aforesaid alteration in the judgments and sentences awarded by the two courts below, this application is allowed in part. Since, petitioners are on bail, they are discharged from the liabilities of their bail bonds. Application partly allowed.