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2018 DIGILAW 183 (JHR)

Bannu Prajapati v. State of Jharkhand

2018-01-19

PRAMATH PATNAIK

body2018
JUDGMENT : PRAMATH PATNAIK, J. 1. The instant appeal has been filed against the judgment of conviction and sentence dated 21.07.2003, passed by the learned Additional District and Sessions Judge, Fast Track Court No. I, Hazaribagh in S.T. No. 277 of 2000, whereby the appellants have been convicted under Sections 323 of the Indian Penal Code and sentenced to undergo R.I. for a period of one year each for the offence under Section 323 I.P.C. 2. The prosecution case, as has been projected by lodging the F.I.R. on the basis of the fard-beyan of Sukri Devi (PW-6) with the allegation that on 31.03.2000, at about 4 P.M. her daughter Munnia Kumari (PW-2) went to wash her clothes in Juhia Pokhar along with Champa, daughter of Nanku Prajapati her neighbour. It has been alleged in the fard-beyan that Champa after wearing Chappal of her daughter went to her house. Her daughter, Munia came back to her house and went to ask for her Chappal from Champa, then Bannu Prajapati, appellant no. 1 began to abuse her and when the informant's son Kallu came back at about 10 P.M., he prevented Bannu Prajapati, appellant no. 1 from abusing Munia, then Mohan, son of Bannu came with Tangi from his house and accused Bannu Prajapati and Mohan after having Tangi in their hands hurled Tangi on her son Kallu with an intention to kill him. Tangi blow hit just behind the head of Kallu resulting in profuse bleeding, as a result of which, he lost his sense. Thereafter, the villagers came to the spot and the matter was pacified. It is further alleged in the fard beyan that during course of the alleged quarrel, one Nanku also sustained injuries with Tangi, which was hurled by the appellant nos. 1 and 2 due to which blood was oozing out from his nose. Thereafter, the villagers took the informant's son Kallu and Nanku to the hospital for their treatment. On the basis of her fard beyan, this case has been registered under Sections 307/326/34 of the I.P.C. and the Police started investigation. After completion of the investigation, a chargesheet was submitted against the accused persons and the cognizance of the offence was taken and the case was committed to the Court of Sessions. After completion of the investigation, the appellants were put on trial. After completion of the investigation, a chargesheet was submitted against the accused persons and the cognizance of the offence was taken and the case was committed to the Court of Sessions. After completion of the investigation, the appellants were put on trial. After closure of prosecution case, the appellants were put to incriminating materials against them and they denied the same and claimed to have been falsely implicated. 3. The prosecution in order to bring home the charges, has examined as many as eight witnesses and on behalf of the defendant, one witness has been examined, namely, Nanku. PW-1, Chanda Devi has deposed that on the date of occurrence, when her sister-in-law Munia went to ask for her chappals, which she left at the pokhar (Pond) to one Champa Devi, the accused persons began to abuse Munia and her family members and when the same was objected by her Bhaisur, the appellants assaulted him with Tangi due to which, he sustained injuries on his neck and head and became unconscious. Thereafter, the Police took him to the Hospital. PW-2, Munia Devi said to have been a ocular witness of the case, who has deposed that the occurrence took place for Chappal, which was taken by one Champa, which she left near the pond and when she went to her to ask about her Chappals, father of Champa began to abuse her and when her brother had gone there to prevent the accused from abusing, the accused persons being enraged inflicted Tangi blow and he sustained injuries on his head and neck. PW-3, Shiv Shankar Prasad, is a hearsay witness. PW-4, Kallu Prajapati (victim) is the son of the informant and the injured. PW-4 in his deposition, has stated that the accused Bannu Prajapati, appellant no. 1 was abusing his sister. He raised objection then Mohan son of Bannu assaulted him with Tangi on his neck from the back side, as a result of which, he sustained injuries. PW-5, is Ram Fal Prajapati, who is alleged to be the eye-witness of the case, who has pacified, when he saw the appellant no. 1, assaulting Kallu with brick on his right leg and the appellant no. 2 assaulting Kallu with Tangi on his neck due to which he sustained injuries. PW-5, is Ram Fal Prajapati, who is alleged to be the eye-witness of the case, who has pacified, when he saw the appellant no. 1, assaulting Kallu with brick on his right leg and the appellant no. 2 assaulting Kallu with Tangi on his neck due to which he sustained injuries. PW-6, Sukri Devi is the informant of the case and the mother of the victim, who supported the deposition of prosecution witness nos. 1, 2 and 4. During trial, she has testified that the appellant no. 1 assaulted his son by Lathi on his leg and the appellant no. 2 with Tangi. PW-7, Ramesh Prajapati has been declared as a hostile witness. PW-8, Rajesh Ranjan, who is the Investigating Officer of the case has deposed that he has taken the fard beyan of the informant marked as Exhibit-1/1 and the formal F.I.R. is marked as Exhibit-2. He has proved the injury reports, marked as Exhibit nos. 3 and 3/1. In the cross-examination, he has deposed that he found blood stain at the place of occurrence but had not prepared the seizure list. In the instant appeal, the Doctor has not been examined by the prosecution. On behalf of the defence, one Nanku Prajapati (DW-1) has deposed that 2½ to 3 years ago, a quarrel takes place regarding Chappal between the children and Kallu (victim) was having a Farsa in his hand and on asking why he was quarelling with Bannu, Kallu hurled on him, due to which, he sustained injuries on his nose. On the basis of the evidence on record, the learned trial court had recorded the order of conviction and sentence under Section 323 I.P.C. thereby directing the appellants to undergo R.I. for one year. 4. Mrs. Jashodhara Tripathy, learned counsel for the appellants has strenuously urged that in the instant appeal, the Doctor has not been examined and the injury sustained by the informant's son has not been proved. In absence of sufficient materials, the learned trial court has completely erred in recording the order of conviction and sentence of appellant no. 1. Apart from that, there has been material contradictions in the deposition of the prosecution witnesses and therefore the prosecution has miserably failed to prove the charges beyond all reasonable doubts during trial. In absence of sufficient materials, the learned trial court has completely erred in recording the order of conviction and sentence of appellant no. 1. Apart from that, there has been material contradictions in the deposition of the prosecution witnesses and therefore the prosecution has miserably failed to prove the charges beyond all reasonable doubts during trial. Learned counsel for the appellants further submits that assuming that the case of the appellants comes within the provisions of Section 323 I.P.C. since the appellant no. 1 is now aged about 65 years and appellants have also undergone the custody for a period more than one month, ends of justice would be met, if the sentence is modified to the period of custody already undergone by the appellant no. 1. 5. Mr. Shekhar Prasad Sinha, learned A.P.P. appearing for the Respondent-State has submitted that there is absolutely no infirmity or illegality in the impugned judgment passed by the learned trial court in recording the order of conviction and sentence under Section 323 I.P.C. On perusal of the evidences of the prosecution, it would be apparent that the informant's son has sustained injuries on the head and the learned trial court has rightly came to the finding that by commission of the offence, the appellants are guilty under Section 323 of the I.P.C. 6. Having heard the learned counsel for the respective parties and on perusal of the records, it would appear that there are certain contradictions in the evidence of the prosecution witnesses and the injury, as has been sustained by the son of the informant, has not been proved, in absence of any injury report, that too because of the non-examination of the Doctor. Moreover, it is the duty of the prosecution to prove the findings of the injury, as has been available in the medical report, but absence of such injury report in the prosecution case may be a drawback for the prosecution, but non-examination of Doctor would not be fatal to the prosecution, as has been held by the Hon'ble Supreme Court in the case of Mukul Mahato vs. State of Jharkhand, (2008) 15 SCC 648 . Since, in the instant case, in absence of non-examination of the Doctor also, the prosecution witnesses have very consistently deposed that the son of the informant, has sustained injuries and the testimonies of the prosecution witnesses, have not been subsequently demolished by the defence witness, therefore, in view of the testimonies of the prosecution witnesses, the learned trial court has rightly convicted the appellants under Section 323 of the IPC and recorded the order of sentence to undergo R.I. for a period of one year each for the offence under Section 323 I.P.C. 7. Regard being had to the contentions raised by the learned counsel for the appellants as well as the learned counsel for the Respondent-State and on perusal of the records, since the appellants were incarcerated for a period of more than one month and in the meantime, 17 years have elapsed from the date of the occurrence and one appellant is aged about 65 years, the ends of justice would be met, if the sentence under Section 323 I.P.C. is reduced to the period already undergone. Resultantly, the appeal stands allowed in part. The appellants, who are already on bail, are discharged from the liabilities of their bail bonds. Appeal allowed.