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2018 DIGILAW 2679 (JHR)

Pradip Kumar Singh v. State Of Jharkhand

2018-12-06

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard, learned Senior counsel for the appellants, Mr. A. K. Kashyap, Senior Advocate assisted by Mr. Anurag Kashyap, Advocate and counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the judgment of conviction dated 27.01.2004 and order of sentence dated 29.01.2004, passed by learned 4th Additional Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 375 of 1988, whereby, these appellants have been convicted. Appellant no.1, Pradip Kumar Singh has been convicted for the offence committed and punishable under Sections 148, 324 and 379 of the Indian Penal Code and awarded Rigorous Imprisonment for two years under each head. All the sentence are directed to run concurrently. Appellant no.2, Pradip Pathak, appellant no.3, Ram Autar Ram and appellant no.4, Ramesh Ram have been convicted for the offence committed and punishable under Section 147 of the Indian Penal Code and awarded Rigorous Imprisonment for one year. By the impugned judgment passed by learned trial Court, all these accused persons have been acquitted of the charge under Sections 323, 307 and 354 of the Indian Penal Code. 3. The prosecution case, is based upon the written report of informant, Pavitar Devi (P.W.1) before Officer-In-Charge, Paton Police Station on 20.02.1986, wherein, the informant has stated that, today at around 8.00 P.M. in the night, she went at the door of her house feed her cattle, in the meantime, Madan Pathak, Pradip Pathak, Pradip Kumar Singh, Ramautar Ram, Ramesh Ram and others came there, armed with farsa and lathi. Ramesh Ram caught hold the informant and Pradip Kumar Singh assaulted the informant with farsa on head, caused bleeding injury. Madan Pathak, Pradip Pathak and Ramautar Ram also assaulted the informant with lathi on her body. Upon raising brawl by the informant, her son Subash Pathak and her daughter Sushila Kumari came from inside the house, then the accused persons fled away. At the time of fleeing away accused Pradip Kumar Singh has snatched silver chain, golden earring and silver anklet, all ornaments worth Rs. 700/-, from the body of informant. It is further alleged that accused Ramesh Ram had caught the body of informant with bad intention to outrage her modesty. At the time of fleeing away accused Pradip Kumar Singh has snatched silver chain, golden earring and silver anklet, all ornaments worth Rs. 700/-, from the body of informant. It is further alleged that accused Ramesh Ram had caught the body of informant with bad intention to outrage her modesty. The informant has claimed that the occurrence took place because of dispute regarding partition of land with Madan Pathak, Pradip Pathak and others for which suit is pending. 4. On the basis of the written report of the informant, the Police has registered First Information Report bearing Paton P. S. Case No. 16 of 1986, dated 20.02.1986, under Sections 147/148/149/323/324/354/379/341 of the Indian Penal Code against five named accused persons namely, Madan Pathak, Pradip Pathak, Pradip Kumar Singh, Ramautar Ram and Ramesh Ram. 5. After investigation, the police has submitted charge sheet vide charge sheet no.24 of 1986 dated 06.04.1986, under Sections 147/148/149/323/324/354/379/307 of the Indian Penal Code against all the five named accused persons. 6. The cognizance of the offence has been taken vide order dated 19.08.1986 and the case has been committed to the Court of Sessions vide order dated 08.07.1988. 7. The learned trial Court has framed charge against all the five accused persons on 25.07.1991. Accused persons namely, Madan Pathak, Pradip Pathak and Ramautar Ram have been charged under Sections 147,323 and 307 of the Indian Penal Code. Accused Pradip Kumar Singh and accused Ramesh Ram have been charged separately under Sections 148, 379 and 324 of the Indian Penal Code and under Sections 147, 354 and 307/149 of the Indian Penal Code respectively, to which the accused persons have pleaded their innocence and thus, they were put under trial. Co-accused, Madan Pathak has died during the trial and his case has been dropped vide order dated 16.01.2004. 8. The prosecution, in order to prove its case, has examined altogether six witnesses and also exhibited documentary evidence. Pavitar Devi (informant of the case) has been examined as P.W.1, Suwansh Pathak, son of the informant and eye witness to the occurrence, has been examined as P.W.2, Basant Pathak another son of the informant but a hearsay witness, has been examined as P.W.3, Sushila Kumari, daughter of the informant and eye witness to the occurrence, has been examined as P.W.4, Krishna Pathak has been examined as P.W.5, who has been declared hostile by the prosecution and Dr. Parsu Ram Prasad (Medical Officer) has been examined as P.W.6, who has proved the injury report of the informant. Injury report of the victim has been proved and marked as Exhibit-1. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C., on 16.01.2004, to which the appellants have stated that they are innocent and have been falsely implicated in this case and there is no legal materials against them. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court 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 present criminal appeal has been preferred by the appellants before this Hon''ble Court, assailing the same. 11. Heard, learned counsel for the appellants, Mr. A. K. Kashyap, Senior Advocate assisted by Mr. Anurag Kashyap, Advocate. Learned Senior 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 Senior counsel for the appellants has submitted, that the Investigating Officer has not been examined in this case as such, serious prejudice has been caused to the appellants as the appellants could not draw attention of this Court regarding the authenticity of the First Information Report, which is hit under section 162 Cr.P.C. Learned Senior counsel for the appellants has further submitted, that prosecution case is based upon the interested witnesses, Pavitar Devi (P.W.1), the informant-cum-victim of the case, Suwansh Pathak(P.W.2), son of the informant, Basant Pathak (P.W.3), another son of the informant and Sushila Kumari(P.W.4), daughter of the informant. The independent witness, Krishna Pathak(P.W.5) has not supported the prosecution case and has been declared hostile by the prosecution. Learned Senior counsel for the appellants has further submitted, that First Information Report has not been brought on record nor been proved and marked as exhibit. Learned Senior counsel for the appellants has further submitted, that there is enmity prevailing between the parties and as such, false implication of the appellants cannot be ruled out, as the Medical Officer, Dr. Parsu Ram Prasad(P.W.6) has admitted during his cross-examination that, such injury might have been caused on the head of victim because of fall on a sharp cutting weapon. Parsu Ram Prasad(P.W.6) has admitted during his cross-examination that, such injury might have been caused on the head of victim because of fall on a sharp cutting weapon. Learned Senior counsel for the appellants has thus submitted, that the appellants may be acquitted of the charge and conviction by extending benefit of doubt. 12. Heard, learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence has been passed by learned trial Court on the basis of materials available on record. Learned counsel for the State has further submitted, that non-examination of the Investigating Officer has not caused any prejudice to the appellants as the appellants have not given any suggestion to the prosecution witnesses during crossexamination nor have stated anything during their statement recorded under Section 313 Cr.P.C., so as to establish that, non-examination of the Investigating Officer has caused prejudice to them. Learned counsel for the State has further submitted, that informant has sustained injury on her head caused by farsa, assaulted by appellant no.1, Pradip Kumar Singh, who has also snatched the silver chain and other ornaments of the informant while fleeing away and the learned trial court has rightly convicted the appellant no.1, Pradip Kumar Singh under Sections 148, 324 and 379 of the Indian Penal Code. Learned counsel for the State has further submitted, that credential of the informant is without any doubt as the victim has only alleged about single assault made by means of farsa, which caused bleeding injury on the head though Sushila Kumari (P.W.4) has alleged that, appellant no.1, Pradip Kumar Singh has attempted twice but only one injury has been caused on the head of her mother, Pavitar Devi. Learned counsel for the State has thus submitted, that injury caused upon the head has been shown in the court and the learned trial court has also found scar mark over the head of the informant/victim. Learned counsel for the State has thus submitted, that injury caused upon the head has been shown in the court and the learned trial court has also found scar mark over the head of the informant/victim. Learned counsel for the State has further submitted, that First Informant Report is not hit under Section 162 Cr.P.C. as the First Information Report has been written by some person may be her husband namely, Kedar Nath Pathak, who has not been examined in this case, but thumb impression of the informant on written report and subsequent statement of the informant is the re-statement of the informant as such, present case is not hit under Section 162 Cr.P.C. Learned counsel for the State has further submitted, that the learned trial Court has rightly convicted the appellants and the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court. 13. Heard, learned Senior counsel for the appellants, Mr. A. K. Kashyap, Senior Advocate assisted by Mr. Anurag Kashyap, Advocate and learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor and perused the materials available on record, i.e First Information Report, framing of the charge, evidence of six prosecution witnesses, one prosecution exhibit and the statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses, it appears that there are minor contradictions in the evidence of, Pavitar Devi (P.W.1), Suwansh Pathak(P.W.2) and Sushila Kumari(P.W.4), but those minor contradictions are not fatal that can dispel the prosecution case. This court has minutely examined the evidence brought on record. The First Information Report was lodged soon after the occurrence on the basis of written report having thumb impression of the informant and also signed by the husband of the informant and out of six prosecution witnesses, Pavitar Devi(P.W.1) informant-cum-victim, Suwansh Pathak(P.W.2), son of the informant and Sushila Kumari(P.W.4), daughter of the informant are the eye witnesses to the occurrence. Their evidence are consistent so far assault made upon the informant by appellant no.1 Pradip Kumar Singh by means of farsa on the head of the informant, causing bleeding injury is concerned. Their evidence are consistent so far assault made upon the informant by appellant no.1 Pradip Kumar Singh by means of farsa on the head of the informant, causing bleeding injury is concerned. The presence of five accused persons have been proved in this case, as one co-accused, Madan Pathak has died during the trial and his case has been dropped vide order dated 16.01.2004 and as such, five accused persons have made unlawful assembly as defined under Section 141 of the Indian Penal Code. Appellant no.1 Pradip Kumar Singh was armed with farsa and as such, he has been rightly charged under Section 148 of the Indian Penal Code and has caused injury upon the head of the informant, which was simple in nature and as such, has been rightly convicted by the learned trial Court under Sections 148 and 324 of the Indian Penal Code. There is evidence that appellant no.1, Pradip Kumar Singh while fleeing away has snatched the ornaments of the informant and as such, learned trial court has rightly convicted the appellant no.1 Pradip Kumar Singh also under Section 379 of the Indian Penal Code. The other prosecution witnesses, who are eye witnesses to the occurrence i.e. Suwansh Pathak(P.W.2) and Sushila Kumari(P.W.4) have supported the version of the informant and have also stated that, other accused persons have assaulted the informant-cum-victim by means of lathi. These witnesses are consistent so far appellant no.4, Ramesh Ram is concerned, who has taken away the silver anklet of the informant. Basant Pathak(P.W.3), another son of the informant, who has witnessed the presence of all the five accused persons, but his credential is also not under cloud as he has categorically stated that under fear, he fled away. Krishna Pathak(P.W.5), co-villager and as per the prosecution case, an eye witness to the occurrence has not supported the prosecution case and thus the prosecution has declared him hostile. It has been found in the society that common people are not appearing or supporting the prosecution case in the court from either side so as to minimize their animosity with any of the parties and as such, Krishna Pathak has not supported the prosecution case. The injury report has been brought on record, which is consistent to the prosecution case. The injury report has been brought on record, which is consistent to the prosecution case. Under the aforesaid circumstance, from the evidence brought on record, it appears that, there is no prejudice to the appellants because of non-examination of Investigating Officer and as such, as discussed above, this Court is of the view that, impugned judgment of conviction and order of sentence has been rightly passed by the learned trial Court, on the basis of the materials available on record, which is upheld and affirmed by this Hon''ble Court. Learned Senior counsel for the appellants has submitted, that the appellants are labourers and have suffered rigors of trial for 32 years i.e. since the year 1986. The period of 32 years has elapsed since then and if they will be sent in custody no fruitful result will come, as during intervening period their relationship would have improved and as such, instead of sending them jail, it would be proper, if the sentence is modified, as period already undergone and by imposing some fine to the appellants. The State counsel has no objection, in this regard. Under the aforesaid circumstances, this Court is of the opinion that, victim has not sustained any injury because of assault made by the lathi and as such, appellant no.2, Pradip Pathak, appellant no.3, Ramautar Ram and appellant no.4, Ramesh Ram, whose conviction under Section 147 of the Indian Penal Code, has been upheld and affirmed but the sentence awarded by the learned trial Court is hereby modified, as period already undergone by the appellants. So far conviction of the appellant no.1 Pradip Kumar Singh is concerned, which has been upheld and affirmed under Sections 148, 324 and 379 of the Indian Penal Code, but his sentence awarded by the learned trial Court is hereby modified by awarding a fine of Rs.10,000/- payable to victim/appellant, Pavitar Devi(P.W.1). The appellant is directed to deposit a sum of Rs.10,000/- before the learned trial Court within a period of eight weeks from the date of receipt of a copy of this order and the fine amount shall be paid to the informant, Pavitar Devi(P.W.1), after due verification. If the fine amount is not deposited by the appellant within eight weeks from the date of receipt of a copy of this judgment, the sentence awarded by the learned trial Court shall remain as it is. If the fine amount is not deposited by the appellant within eight weeks from the date of receipt of a copy of this judgment, the sentence awarded by the learned trial Court shall remain as it is. Learned trial Court is directed to issue notice to the appellant no.1, Pradip Kumar Singh for payment of fine and after deposition of fine amount, the trial court shall also issue notice to the informant and after due verification of the informant, Pavitar Devi(P.W.1) the same amount shall be disbursed to her. Accordingly, the impugned judgment of conviction dated 27.01.2004, passed by learned 4th Additional Sessions Judge, Palamau, Daltonganj, in Sessions Trial No. 375 of 1988, arising out of Paton P.S. Case No.16 of 1986, corresponding to G.R. No. 274 of 1986 is hereby upheld and affirmed with modification in sentence. 14. In the result, the instant criminal appeal stands dismissed with modification in sentence, as stated above. 15. The appellants, who are on bail, their bail bonds are hereby cancelled but no action shall be taken against appellant no.1 Pradip Kumar Singh for eight weeks from the date of receipt of a copy of this judgment, so as to comply the order/judgment passed by this Hon''ble Court. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.