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2018 DIGILAW 2207 (JHR)

Rabi Lohar v. State of Jharkhand

2018-10-04

KAILASH PRASAD DEO

body2018
JUDGMENT : Heard, Mr. S. K. Lall, learned counsel for the appellants and Mr. Vikash Kishore, learned Additional Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 03.03.2005, passed by the learned 1st Additional Sessions Judge, Saraikella, in S.T. Case No.374 of 1994, whereby, the appellants have been convicted for the offence committed and punishable under Section 324/34 I.P.C. The learned trial Court has awarded the appellants, Rabi Lohar and Lal Singh Lohar to undergo rigorous imprisonment for two years and a fine of Rs.3,000/-for the offence committed and punishable under Section 324/34 I.P.C. and in default of payment of fine, to undergo further rigorous imprisonment for one month. So far appellant, Ghashi Ram Lohar is concerned, he has been awarded rigorous imprisonment for one year and fine amount of Rs.1,000/-for the offence committed and punishable under Sections 324/34 I.P.C. and in default in payment of fine, the appellants shall undergo further rigorous imprisonment for fifteen days. 3. The prosecution case, is based upon, written report, submitted by the informant, Sonu Lohar (P.W.2) before the Officer-in-Charge, Rajnagar Police Station, alleging therein, that on 25.08.1993 at around 8.30 a.m., the wife of the informant and the wife of the appellant, Ghanshi Ram were quarreling for partition of the property. The informant along with his son, Kripal Lohar (P.W.6) went there to pacify them. In the meantime, the elder brother of the informant, Ghashi Ram Lohar and his son, Rabi Lohar came there and stated to the informant that his wife is of quarreling nature and stopped her from quarreling, upon which, the informant tried to pacify his wife. In the meantime, Lal Singh Lohar, eldest son of Ghashi Ram Lohar came with sword and said that he will kill both father and son and indiscriminately assaulted Sonu Lohar and his son, Kripal Lohar. The informant and his son were caught by Ghashi Ram Lohar, Rabi Lohar and Lal Singh Lohar assaulted them which caused injury on head and on both hands of the informant and on palm of his son, Kripal Lohar. The occurrence was witnessed by other persons of the village, namely, Makardhwaj Pradhan (P.W.1) and Munishankar Pradhan (P.W.5) and thereafter information was given to the Police. 4. The occurrence was witnessed by other persons of the village, namely, Makardhwaj Pradhan (P.W.1) and Munishankar Pradhan (P.W.5) and thereafter information was given to the Police. 4. On the basis of the written report, of the informant, the Police instituted First Information Report bearing Raj Nagar P.S. Case No. 36 of 1993, dated 25.08.1993 corresponding to G.R. No.393 of 1993 under Sections 307/324/341/34 of the Indian Penal Code against the three named accused persons/ appellants. 5. After investigation, the Police has submitted first charge-sheet vide Charge-sheet No.47 of 1993 dated 31.10.1993 against Ghashi Ram Lohar and Rabi Lohar under Sections 307/324/341/34 I.P.C. showing accused, Lal Singh Lohar as an absconder. Subsequently, accused/appellant, Lal Singh Lohar was also apprehended and the Police submitted another Charge-sheet vide charge-sheet No.57 of 1993 dated 07.12.1993 under Sections 307/324/341/34 I.P.C. 6. The cognizance of the offence has been taken against accused/appellants vide order dated 08.11.1993 and the case has been committed to the Court of Sessions vide order dated 21.09.1994. 7. The charge has been framed by the learned trial court on 22.01.2000 against the accused-appellants under Sections 307/34 I.P.C., to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 8. The prosecution has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence up-to Exhibit-2 in order to prove its case. Makardhwaj Pradhan, a hearsay witness, has been examined as P.W.1, Sonu Lohar, an injured and informant of the case, has been examined as P.W.2, Sanjay Kumar Pradhan has been examined as P.W.3, Vipad Pradhan has been examined as P.W.4, both these prosecution witnesses (P.W.3 & P.W.4) have not supported the prosecution case, but they have not been declared hostile by the prosecution, Munishankar Pradhan, the witness named in the First Information Report, has been examined as P.W.5, but he has been declared hostile by the prosecution and Kripal Lohar, son of the informant and another injured witness of the case, has been examined as P.W.6. Signature of Sonu Lohar (P.W.2) on the written report has been proved and marked as Exhibit-1, signature of Makardhwaj Pradhan (P.W.1) on the written report has been proved and marked as Exhibit-1/1 and the First Information Report has been proved and marked as Exhibit-2. 9. Signature of Sonu Lohar (P.W.2) on the written report has been proved and marked as Exhibit-1, signature of Makardhwaj Pradhan (P.W.1) on the written report has been proved and marked as Exhibit-1/1 and the First Information Report has been proved and marked as Exhibit-2. 9. After closure of the prosecution evidence, the statements of the accused/appellants have been recorded under Section 313 Cr.P.C., on 11.09.2003, to which the appellants have stated that they have been falsely implicated in this case, as uncle used to cause disturbance in the family after taking liquor.. The defence has neither examined any witness nor adduced any documentary evidence. 10. The learned trial court, after hearing learned counsel for the parties and on the basis of the material brought on record, has passed the impugned judgment of conviction and order of sentence. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court, assailing the same. 11. Heard, Mr. S. K. Lall, learned counsel appearing for the appellants. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that neither the Doctor nor the Investigating officer has been examined in this case. Learned counsel for the appellants has further submitted, that the informant, Sonu Lohar (P.W.2) has deposed in the Court, that he was assaulted by Nursing Lohar, but the prosecution has not established that Lal Singh Lohar and Nursing Lohar are the same person. The learned trial court has wrongly mentioned the same in the impugned judgment without any basis and material available on record. Learned counsel for the appellants has further submitted, that charge has been framed against the accused/appellants, Rabi Lohar, Lal Singh Lohar and Ghashi Ram Lohar, but even another victim, who is son of the informant, namely, Kripal Lohar (P.W.6) has not stated that Lal Singh Lohar and Nursing Lohar are the same persons. Learned counsel for the appellants has further submitted that these appellants have no criminal antecedent. Learned counsel for the appellants, while relying on the aforesaid submissions, has submitted that the appellants may be acquitted of the charge and conviction under Sections 324/34 I.P.C. by extending benefit of doubt. 12. Heard, Mr. Learned counsel for the appellants has further submitted that these appellants have no criminal antecedent. Learned counsel for the appellants, while relying on the aforesaid submissions, has submitted that the appellants may be acquitted of the charge and conviction under Sections 324/34 I.P.C. by extending benefit of doubt. 12. Heard, Mr. Vikash Kishore, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court on the basis of the material available on record and the learned trial court has rightly convicted the appellants under Section 324 /34 I.P.C. Learned counsel appearing for the State has further submitted that though the Investigating officer and the Doctor have not been examined nor the injury report has been brought on record, but from the evidence of Kripal Lohar (P.W.6), who has shown injury to the Court, the conviction of the appellants under Section 324 /34 I.P.C. is sustainable, as the said injury was caused by a sharp-cutting weapon which comes within the purview of Section 324 I.P.C. Section 324 I.P.C. reads as follows :- “324. Voluntarily causing hurt by dangerous weapons or means.— Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” Learned counsel appearing for the State has further submitted that since the appellant, Lal Singh Lohar has assaulted the informant (Sonu Lohar-P.W.2) and Kripal Lohar (P.W.6) by means of sword and other accused/appellants have caught-hold of the informant and his son, as such, the learned trial Court has rightly convicted the appellants under Section 324/34 I.P.C. Learned counsel appearing for the State has further submitted that though the informant (Sonu Lohar-P.W.2) in his fardbeyan, has categorically stated that accused/appellant, Lal Singh Lohar has assaulted the informant and his son, by means of sword, but while deposing in the learned trial court, as P.W.2, this witness has stated that assault was made by Nursing Lohar. Kripal Lohar (P.W.6) has categorically stated that he was assaulted by Lal Singh Lohar. Under these circumstances, the learned trial court has rightly presumed that Lal Singh Lohar is Nursing Lohar. Learned counsel appearing for the State has submitted that the impugned judgment of conviction and order of sentence has been passed on the basis of the material available on records, as such, no interference is warranted by this Hon'ble Court. 13. Heard, Mr. S. K. Lall, learned counsel for the appellants and Mr. Vikash Kishore, learned Additional Public Prosecutor appearing for the State and also perused the entire records of the case i.e. First Information Report, framing of charge, evidence of six prosecution witnesses, prosecution exhibits up-to Exhibits-2, statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. 14. This Court has scrutinized the evidence of all the six prosecution witnesses. 14. This Court has scrutinized the evidence of all the six prosecution witnesses. It appears that Sanjay Kumar Pradhan (P.W.3) and Vipad Pradhan (P.W.4) have been examined as the prosecution witnesses, but they have not supported the prosecution case, as they have stated that they were not present in the village. The prosecution has not declared them hostile, but their evidence is not relevant for adjudication of the present Criminal Appeal. Munishankar Pradhan (P.W.5) is one of the witnesses to the First Information Report. This witness has not supported the prosecution case and has been declared hostile by the prosecution. Makardhwaj Pradhan (P.W.1) is the another witness to the First Information Report and his signature has been proved and marked as Exhibit-1/1, but he has admitted himself while deposing in the Court as P.W.1 that he has not seen the occurrence, rather the occurrence has been disclosed by the informant (P.W.2-Sonu Lohar), but he has seen the accused persons fleeing away from the place of occurrence, also seen the injured with bleeding injuries. The entire case revolves around the evidence of the informant and victim of the case, (P.W.2-Sonu Lohar) and another victim, Kripal Lohar, son of the informant, who has been examined as P.W.6. Sonu Lohar (P.W.2) in his fardbeyan, has categorically stated that on a trivial issue i.e. quarrel between wife of both the brothers, the occurrence took place, in which Lal Singh Lohar came with sword and assaulted the informant on head and on both hands and also assaulted his son, Kripal Lohar (P.W.6) indiscriminately by the sword. But while deposing in the Court as P.W.2, this witness has not alleged or whispered the name of Lal Singh Lohar, rather attributed allegation of assault by sword against one Nursing Lohar. The prosecution has not brought on record that Nursing Lohar is the same person, who is also known as Lal Singh Lohar. Kripal Lohar (P.W.6), son of the informant has categorically stated that he was assaulted by Lal Singh Lohar by means of sword, due to which, he has sustained injury on palm and the scar of injury has been shown to the Court. Kripal Lohar (P.W.6), son of the informant has categorically stated that he was assaulted by Lal Singh Lohar by means of sword, due to which, he has sustained injury on palm and the scar of injury has been shown to the Court. Since the assault, which has taken place is not indiscriminate, as alleged by the informant, as such, the learned trial Court has rightly convicted the appellants under Sections 324/34 I.P.C. by acquitting the appellants from the charge under Section 307 I.P.C. Considering the evidence brought on record, this Court is of the opinion that there is no need of any interference by this Hon'ble Court, so far conviction of the appellants are concerned. Learned counsel for the appellants has submitted that the appellants have no criminal antecedent and the quarrel took place between wife of both the brothers for partition of the property. The injury reports have not been brought on record nor the Doctor or Investigating officer have been examined in this case and as such, instead of sending the appellants to jail, it would be appropriate that the appellants, who are agnates, may be given benefit of Probation of Offenders Act. The learned Additional Public Prosecutor appearing for the State has not opposed the prayer. Considering the submissions and also that the injury reports have not been brought on record and the occurrence is of the year 1993, and as such, considering the nature of allegation and there is no previous conviction of the appellants, this Court directs the appellants to execute bond of Rs.1,000/-(Rupees One Thousand) with two sureties for a period of one year under Section 4 of the Probation of Offenders Act for maintaining peace and be of good behaviour in the society. 15. In the result, the present Criminal Appeal is dismissed with modification in the sentence, as aforesaid. 16. The appellants, who are on bail, their bail bonds are hereby cancelled to comply with the order passed by the Court. 17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.