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Jharkhand High Court · body

2018 DIGILAW 2590 (JHR)

Umesh Sharma v. State of Jharkhand

2018-11-28

ANANDA SEN

body2018
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. This criminal appeal is directed against the Judgment of Conviction and Order of Sentence dated 18th December, 2006 passed by the learned Additional Sessions Judge 5th, East Singhbhum at Jamshedpur in Sessions Trial No. 312 of 2004, whereby the appellant has been held guilty and was convicted for offence punishable under Sections 448, 341, 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 (three) years for offence under Section 325 of the Indian Penal Code and simple imprisonment for six months each for offence under Sections 448 and 341 of the Indian Penal Code. 3. Prosecution case is based on the fardbeyan of P.W.4, who is the victim. She states that she was in her house, when this appellant and others entered her house, assaulted her brutally on her head and other parts of the body by sticks and other hard weapons. When alarm was raised, the appellant and others fled from the place of occurrence. Thereafter, she was taken to the hospital where she was treated. The genesis of the occurrence is a quarrel between the daughter of victim and the daughter of this appellant. 4. On the basis of aforesaid fardbeyan, Sitaramdera Police Station Case No.26 of 2004 was registered for offences under Sections 448, 307, 323, 34 of the Indian Penal Code. Police investigated the case and upon completion filed chargesheet against this appellant and others under Sections 448, 307, 323, 341, 504 read with Section 34 of the Indian Penal Code. Charges were framed and as the appellant and others pleaded not guilty, they were put to trial. 5. To substantiate the prosecution case, prosecution has examined 8 (eight) witnesses. In addition to the witnesses, four documents were also marked as exhibits in this case. After closure of prosecution witnesses, statement of appellant and other accused persons were recorded under Section 313 of the Code of Criminal Procedure. The appellant did not produce any witness. 6. 5. To substantiate the prosecution case, prosecution has examined 8 (eight) witnesses. In addition to the witnesses, four documents were also marked as exhibits in this case. After closure of prosecution witnesses, statement of appellant and other accused persons were recorded under Section 313 of the Code of Criminal Procedure. The appellant did not produce any witness. 6. After hearing the parties, learned Trial Court, by judgment and order dated 18th December, 2006 convicted this appellant for the offence punishable under Sections 448, 341, 325 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 (three) years for offence under Section 325 of the Indian Penal Code and simple imprisonment for six months each for offence under Sections 448 and 341 of the Indian Penal Code. 7. Aggrieved by the said judgment of conviction and order of sentence, appellant has preferred this appeal. 8. Learned counsel for the appellant submits that the prosecution has failed to prove the case beyond all reasonable doubt. All the witnesses are related to each other. He submits that material independent witnesses have been withheld by the prosecution and on this score alone, the appellant needs to be acquitted. He submits that there is specific allegation of assault by stick on the victim, but, said stick has not been recovered. Two independent witnesses have been declared hostile. He also submits that evidence of P.W.1 and P.W.3, who happen to be the daughters of the victim, cannot be relied upon. He submits that even the victim’s statement is not corroborated with the medical evidence, which goes to the root of the case. He submits that from the evidence, the appellant could not have been convicted for offence under Section 325 of the Indian Penal Code. 9. Learned A.P.P. appearing for the State submits that the doctor found the injuries on the informant to be grievous in nature. P.W.1, P.W.3 and P.W.4 (who is the informant), categorically stated that it is this appellant, who assaulted P.W.4 with stick. She submits that genesis of the occurrence has also been proved. Thus, she submits that the conviction of the appellant is justified and sustainable. 10. After hearing the parties and going through the records, I find that 8 (eight) witnesses have been examined in this case by the prosecution. There is allegation against the appellant that he has assaulted P.W.4 resulting in serious injuries. Thus, she submits that the conviction of the appellant is justified and sustainable. 10. After hearing the parties and going through the records, I find that 8 (eight) witnesses have been examined in this case by the prosecution. There is allegation against the appellant that he has assaulted P.W.4 resulting in serious injuries. P.W.1 is the daughter of the informant, namely, Pancha Devi. She at the very initial stage claims herself to be eye witness, but, in paragraph 11 of her deposition, she states that she had not seen this appellant assaulting her mother, rather, when she came out, she saw this appellant and others fleeing from the place of occurrence. She also stated that her mother was taken to the hospital by her aunts (Mami & Chachi). She denies knowledge of any case filed by this appellant. Further from her evidence-in-chief, she does not allege specific overt act against this appellant. P.W.2 is independent witness who was declared hostile. P.W.3 is another daughter of injured. She, in her deposition, has stated that her mother was assaulted by this appellant, who was holding a stick and Mahendra, who assaulted by boulder. She states that this appellant gave stick blow on the head of her mother. Later on she states that her father and brother took her mother to the hospital. She clearly stated that several other women folks were present at the place of occurrence. In paragraph 6, she states that on hearing alarm, she came out and saw this appellant and others fleeing from the place of occurrence. P.W.4 is the victim herself, who stated that it is this appellant, who had assaulted on her head. She stated that it is her husband, who had taken her to the hospital. She also admits that other witnesses were present at the place of occurrence. She states that she became unconscious after the assault. She stated that there were 10 stitches on her head given by the doctor when she was being treated at the hospital. P.W.5 is the doctor, who found two wounds on the scalp, one abrasion over the left eye and bruise and tender swelling over face. Injury No.1 was grievous in nature. Injury report was marked as Exhibit 1. He, in cross examination, stated that the injury can be caused if a person falls on a hard stone. P.W.6 is an independent witness, who was declared hostile. Injury No.1 was grievous in nature. Injury report was marked as Exhibit 1. He, in cross examination, stated that the injury can be caused if a person falls on a hard stone. P.W.6 is an independent witness, who was declared hostile. P.W.7 is the tenant of the victim, who stated that he knew nothing about the occurrence. P.W.8 is the Investigating Officer, who exhibited the signature on the written report as Exhibit 2, the forwarding report on FIR as Exhibit 3 and formal FIR as Exhibit 4. He admitted that there was a case and counter case arising out of the said occurrence. He stated that no x-ray was done to the victim. 11. After analyzing the evidence of the witnesses, I find that P.W.1 and P.W.3, during cross examination, had categorically stated that on hearing alarm, they came out and saw this appellant and others fleeing from the place. Thus, they cannot be said to be eye witness to the assault. Further P.W.1 stated that it is her aunts, who had taken the injured to the hospital, but, contrary statement on this point has been given by P.W.3 and P.W.4 inasmuch as, P.W.3 and P.W.4 have stated that it is the husband of P.W.4, who had taken the victim to the hospital. Surprisingly, husband of the victim has not been examined as witness. Victim, herself, stated that she became unconscious after the assault. If that be so, then, it was not possible for her to see as to who had taken her to the hospital. Further, she stated that 10 stitches were given on her head, but, this is not corroborated by the doctor. The doctor stated that injury is grievous, but on what basis he found the injury to be grievous has not been mentioned. Admittedly, no x-ray of the injured was done. Two independent witnesses were produced and were declared hostile. Further, as per the evidence of the witnesses, there were several other women folk present at the time and place of occurrence, but, surprisingly, none of them were produced before the Court as witnesses. Thus, the prosecution has withheld some important witnesses, who could have testified in this case. 12. Thus, I find that the entire case hinges on the evidence of interested witnesses, i.e., the victim and her two daughters. Thus, the prosecution has withheld some important witnesses, who could have testified in this case. 12. Thus, I find that the entire case hinges on the evidence of interested witnesses, i.e., the victim and her two daughters. As I have mentioned above, these two daughters of the victim are not eye witnesses to the assault and their evidence is contrary to each other on the point as to who had taken the victim to the hospital. There is no document to suggest about the treatment, which the victim had undergone in the hospital to show the nature of injury and treatment given. The doctor also did not say whether the victim was admitted in the hospital or was treated as an outdoor patient. Though victim has stated that she was admitted in the hospital, there is no chit of paper in support of the same. All these create doubt about prosecution case and involvement of this appellant. Where there is doubt, the benefit should go to the accused person. Thus, by giving benefit of doubt, I allow this appeal and set aside the Judgment of Conviction and Order of Sentence dated 18th December, 2006 passed by the learned Additional Sessions Judge 5th, East Singhbhum at Jamshedpur in Sessions Trial No. 312 of 2004 and thereby acquit the appellant from the charges against him. 13. Since the appellant is on bail, he is discharged from the liabilities of the bail bonds. 14. Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this judgment. Appeal allowed.