Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2126 (JHR)

Lakhi Lohra v. State of Jharkhand

2017-12-09

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT : By Court.-Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 5th of January, 2010, passed by the learned Additional Judicial Commissioner, F.T.C.-VI, Ranchi, in Sessions Trial No. 555 of 2007, whereby, the sole appellant has been found guilty and convicted for the offences under Sections 302 and 323 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code. No separate sentence, however, was passed for the offence under Section 323 of the Indian Penal Code. 3. The prosecution case was instituted on the basis of fardbeyan of Sohrai Lohra, the son of the deceased Charan Lohra, recorded on 6.6.2007 at his village, in which it is alleged that the informant, his father and wife were working in their agriculture field. In the meantime, the accused appellant, Lakhi Lohra and his son Muchi Ram Lohra came there, armed with tangi and started assaulting his father, due to which, his father fell unconscious. When the informant went to save his father, both the accused persons assaulted the informant and his wife, injuring them also. While the informant was making preparation for bringing his father to the hospital, he died. It is stated in the fardbeyan that there was land dispute between the parties for the same land on which the occurrence had taken place. On the basis of the fardbeyan of the informant, Sonahatu P.S. Case No. 20 of 2007, corresponding to G.R. No. 312 of 2007 was instituted for the offences under Sections 341, 323, 307, 302/34 of the Indian Penal Code, against two named accused persons, and investigation was taken up. After investigation the police submitted the charge-sheet. 4. We are informed that the co-accused, Muchi Ram Lohra was found to be a juvenile on the date of occurrence, and accordingly, in his case, an enquiry was made by the Juvenile Justice Board, Ranchi. As no witness could be examined by the prosecution, the co-accused, Muchi Ram Lohra was acquitted of the charge, by order dated 3.10.2008 passed by the Juvenile Justice Board, Ranchi, in Enquiry Case No. 565 of 2008. 5. As no witness could be examined by the prosecution, the co-accused, Muchi Ram Lohra was acquitted of the charge, by order dated 3.10.2008 passed by the Juvenile Justice Board, Ranchi, in Enquiry Case No. 565 of 2008. 5. After commitment of the case to the Court of Session, charge was framed against• the accused appellant for the offences under Sections 302 and 307 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, eight witnesses were examined by the prosecution, out of whom, P.W. 7-Janak Mahto has turned hostile and has not supported the prosecution case. PW. 4-Bhuneshwar Mahto and P.W. 5-Balram Mahto are only the hearsay witnesses, stating that they had heard about the occurrence. 6. P.W. 3-Sohrai Lohra is the informant of the case and he has stated that the occurrence had taken place on 6.6.2007. His father was ploughing the land and he was working in the field along with his wife. Lakhi Lohra and Muchi Ram Lohra came there, armed with tangi and assaulted his father Charan Lohra indiscriminately. His father fell unconscious and when they went to his rescue, they were also assaulted and injured by the accused persons. He has stated that his father died at the spot and he and his wife could not get their injuries examined by the Doctor, due to the fact that his father had died. He has identified the accused in the Court and he has also stated that his fardbeyan was recorded by the police, on which, he had put his signature, which he has identified and the same was marked Exhibit-1. This witness was put to cross-examination, but there is nothing of much importance in his cross-examination. 7. P.W. 1-Thakur Mani is the wife of the informant, and P.W. 2-Kolamani Devi, is the wife of the deceased and they have also• supported the prosecution case as stated by the informant. In their cross-examinations, both these witnesses stated that the deceased was assaulted by the sharp edge of the tangi. 8. P.W. 6 is the Dr. Anita Sundi, who had conducted the post mortem examination on the dead body of the deceased on 7.6.2007, and had found the following injuries:- Lacerated wound (i) 3 cm x 1 cm x bone deep on left parietal region of head. 8. P.W. 6 is the Dr. Anita Sundi, who had conducted the post mortem examination on the dead body of the deceased on 7.6.2007, and had found the following injuries:- Lacerated wound (i) 3 cm x 1 cm x bone deep on left parietal region of head. Internal (ii) There was diffused contusion of left temporo parietal occipital scalp and contusion of left temporalis muscle. There was crack fracture of left temporo perital bone and fracture extended to right occipital bone measuring 30 cm long. There was diffused contusion of brain with presence of sub-dural blood and blood clot in left temporal and right frontal lobe of brain with laceration of left temporal and right frontal lobe of brain. There was diffused contusion of right arm middle part in 8 cm x 6 cm area. There was fracture of right humorous bone, upper part. There was fracture of 2nd to 5th ribs right side. She has stated that all the aforesaid injuries were ante mortem in nature, caused by hard and blunt substance and the death was due to the injuries as aforesaid. This witness has identified the post mortem report to be in her pen and signature, which was marked Exhibit-2. 9. P.W. 8 is Ashok Kumar, who is the I.O. of the case and this witness has proved the fardbeyan, the endorsement on the fardbeyan and the formal F.I.R., which were marked Exhibits-3, 4 and 5 respectively. He has stated that he visited the place of occurrence and he has given the details of the place of occurrence, and he had found the mark of occurrence, but did not find any bloodstains at the place of occurrence. He prepared the inquest report and sent the dead body for post mortem examination. He has also stated that he had also sent both the injured persons for their treatment and he received the post mortem report and thereafter, due to his suspension, he handed over the charge of investigation. In his cross-examination, he has admitted that he had not recovered the weapon of offence. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein, the accused has denied the evidence against him. No evidence was adduced by the defence in this case. 11. In his cross-examination, he has admitted that he had not recovered the weapon of offence. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein, the accused has denied the evidence against him. No evidence was adduced by the defence in this case. 11. On the basis of the evidence on record, the Court below has found the appellant guilty, and convicted and sentenced him for the offence under. Section 302 of the Indian Penal Code, and in view of the fact that neither. the injury reports of the injured persons were proved nor any Medical Officer was examined to prove their injuries, the appellant was also found guilty and convicted only for the offence under Section 323 of the Indian P9nal Code, for which, no separate sentence was passed. 12. Learned counsel for the appellant has submitted that the. impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, there are discrepancies in the oral evidence of witnesses and the medical evidence, brought on record. It is submitted that both PW. 1-Thakur Mani and PW. 2-Kolamani Devi have specifically stated that the deceased was assaulted by the sharp edge of the weapon, but no sharp cutting injury was found on the dead body of the deceased. It is also submitted that there was only one lacerated injury on the head of the deceased and other injuries were on the other parts of the body. Learned counsel has submitted that there is allegation against two accused persons to have assaulted thee deceased, but the witnesses have not stated as to which accused had assaulted on which part of the body, even though, they are the eyewitnesses to the occurrence. In view of the fact that even though, it is alleged that the accused persons were armed with tangi and no injury was found on the deceased, caused by sharp edge of the tangi, it can be presumed that there was no intention on the part of the accused to have caused the death of the deceased. It is also pointed by learned counsel that one of the accused with the same allegation has been acquitted by the competent Court, as no witness turned out to support the case. It is also pointed by learned counsel that one of the accused with the same allegation has been acquitted by the competent Court, as no witness turned out to support the case. Learned counsel, accordingly, submitted that, even though three witnesses have supported the prosecution case, it is a fit case, in which, the appellant ought to have given the benefits of doubt. 13. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W. 1-Thakur Mani, PW. 2-Kolamani Devi and P.W. 3-Sohrai Lohra are the eyewitnesses of the case and all of them have stated that the accused assaulted the deceased by tangi, causing his death at the spot. Their evidence is fully corroborated by the medical evidence of P.W. 6-Dr. Anita Sundi, who found ante mortem injuries on the head and other parts of the dead body of the deceased, which were sufficient in the normal course to cause the death. Learned counsel, submitted that since the injuries on the injured persons could not be proved, the Court below has rightly convicted and sentenced the appellant for the offence under Sections 302 and 323 of the Indian Penal Code, and there is no illegality in the Judgment of conviction and Order of sentence passed by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that P.W. 1- Thakur Mani, the daughter-in-law of the deceased, P.W. 2-Kolamani Devi, the wife of the deceased and P.W. 3-Sohrai Lohra, being the informant and the son of the deceased, have fully supported the prosecution case, stating that the accused Lakhi Lohra along with his son came to the place of occurrence and they assaulted the deceased indiscriminately by tangi. Though, P.Ws. 1 and 2 have stated in their cross-examinations that the assaults were made by the sharp edge of the weapon, but we find from the medical evidence of P.W. 6-Dr. Anita Sundi, and the post mortem report proved by her as Exhibit-2, that there was no injury caused by sharp cutting weapon upon the deceased. Though, P.Ws. 1 and 2 have stated in their cross-examinations that the assaults were made by the sharp edge of the weapon, but we find from the medical evidence of P.W. 6-Dr. Anita Sundi, and the post mortem report proved by her as Exhibit-2, that there was no injury caused by sharp cutting weapon upon the deceased. All the injuries were caused only by hard and blunt substance and in that view of the matter, if the accused persons were armed with tangi and still they used only the blunt portion of the tangi to assault the deceased, and also in view of the fact that there appears to be no repetition of blow on the head of the deceased, it can very well be assumed that they were not having the intention to cause the death of the deceased. We also find that though the aforesaid three witnesses are closely related to the deceased, but they are the natural witnesses as they were present at the place of occurrence. As such, we are of the considered view that it is a fit case, in which the conviction of the appellant Lakhi Lohra for the offence under Section 302 of the Indian Penal Code, be converted into the conviction for the offence under Section 304 Part-II of the Indian Penal Code. 15. We are also of the considered view that in absence of any proof of the injuries on the eyewitnesses, who also claim to be assaulted and injured in the occurrence, the Court below has rightly convicted and sentenced the accused for the offence under Section 323, instead of Section 307 of the Indian Penal Code. Even the I.O. P.W. 8 is Ashok Kumar has also stated that he had sent both the injured persons for their treatment, which shows that the informant and his wife were injured in the occurrence. 16. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 5th of January, 2010, passed by the learned Additional Judicial Commissioner, F.T.C.-VI, Ranchi, in Sessions Trial No. 555 of 2007, is modified to the extent that the appellant Lakhi Lohra is found guilty and convicted for the offence under Section 304 Part-II of the Indian Penal Code and Section 323 of the Indian Penal Code. We are informed that the accused is already in custody and undergoing his sentence and he has remained in custody for more than ten years. In that view of the matter, even if the appellant is sentenced to undergo R.1. for the maximum period of 10 years for the offence under Section 304 Part-II of the Indian Penal Code, we find that he has already served out of the sentence. 17. In that view of the matter, the appellant Lakhi Lohra is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 18. Accordingly, this appeal stands dismissed with the modification in the conviction and sentence, as aforesaid. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.