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2018 DIGILAW 2763 (JHR)

Sanatan Bhagat v. State Of Jharkhand

2018-12-14

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Since appellant No.2, Shambhu Bhagat, S/o Late Surendra Bhagat, died during pendency of the present Criminal Appeal, as such, Criminal Appeal preferred by the appellant No.2, Shambhu Bhagat stands dismissed, as abated. The present Criminal Appeal is pending for the rest one appellant, namely, Sanatan Bhagat only. 2. Heard, Mr. Raja Ravi Shekhar Singh, learned counsel appearing on behalf of the appellant and learned counsel for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor. 3. The instant Criminal appeal is directed against the Judgment of conviction, dated 06.02.2004, and order of sentence dated 07.02.2004, passed by the learned Sessions Judge, Seraikella- Kharsawan, in Sessions Trial No.91 of 1996, whereby both the accused persons have been held guilty for the offence committed and punishable under Section 307 I.P.C. and have been sentenced to undergo rigorous imprisonment for seven years. 4. The prosecution case, is based upon, the ''fardbeyan'' of the informant, Karuna Bhagat (P.W.4), recorded by Mr. N. Bara, A.S.I., Gamaharia Police Station on 23.05.1991 at 11 hours, wherein, the informant has alleged that yesterday i.e. on 22.05.1991, there was a festival in the Village and near the place of worship, a covillager, Shambhu Bhagat was taking liquor. The informant asked accused, Shambhu Bhagat not to take liquor near the worship place. Thereupon accused/appellant, Shambhu Bhagat abused the informant. It is alleged that in the evening at 6 p.m., when the informant was returning his house, accused/appellant, Shambhu Bhagat having ''bhujali'' assaulted on the neck, but the informant somehow saved himself, in the meantime, father of both the accused/appellants, Surendra Bhagat and brother of Shambhu Bhagat, Sanatan Bhagat having lathi and sword respectively in their hands, attacked upon the informant with an intention to kill and assaulted on head, neck and other parts of the body. The informant has further stated that in the meantime, covillager, Gopal Bhagat witnessed the occurrence and on brawl, the other co-villagers came and thereafter the accused persons fled away. The informant has further alleged, that the accused persons have attacked upon him with an intention to kill, causing serious injuries. 5. The informant has further stated that in the meantime, covillager, Gopal Bhagat witnessed the occurrence and on brawl, the other co-villagers came and thereafter the accused persons fled away. The informant has further alleged, that the accused persons have attacked upon him with an intention to kill, causing serious injuries. 5. On the basis of the aforesaid ''fardbeyan'' of the informant, the Police has instituted First Information Report bearing Gamharia P.S. Case No. 26 of 1991, dated 23.05.1991, corresponding to G.R. No.305 of 1991 under Sections 341/ 323/ 324/ 307/ 34 of the Indian Penal Code against the accused persons, Shambhu Bhagat, Surendra Bhagat and Sanatan Bhagat. 6. After investigation, the Police has submitted charge-sheet vide Chargesheet No.19 of 1991 dated 30.06.1991 against all the three named accused persons under Sections 323/ 324/ 326/ 307/ 34 I.P.C. 7. The cognizance of the offence has been taken against accused/appellants vide order dated 03.08.1991, and the case has been committed to the Court of Sessions vide order dated 26.02.1996. 8. The charge has been framed by the learned trial court on 28.05.2002 against all the three accused persons, namely, Surendra Bhagat, Shambhu Bhagat and Sanatan Bhagat under Section 307 I.P.C. though in the memo of charge the learned trial court has incorporated in furtherance of common intention, to which the accused persons have pleaded their innocence and claimed to be tried and thus, they were put under trial. 9. The prosecution, in order to prove its case, has examined altogether seven prosecution witnesses and also exhibited a number of documentary evidnce up-to Exhibits-4 to prove its case beyond all reasonable doubt against the accused/ appellants. Pawan Sardar has been examined as P.W.1, Shyam Lal Bhagat has been examined as P.W.2 and both have been declared hostile by the prosecution, Gopal Bhagat, an eye-witness to the occurrence and named in the First Information Report has been examined as P.W.3, Karuna Bhagat, an injured and informant of the case, has been examined as P.W.4, Urmila Bhagtain, wife of the informant and a hearsay witness has been examined as P.W.5 and Dr. Satya Uttam Bhagat, Medical Officer, has been examined as P.W.6, has examined the victim/ informant of the case, Karuna Bhagat (P.W.4) and Nehlius Bara, Sub Inspector of Police being Investigating officer of the case has been examined as P.W.7. Satya Uttam Bhagat, Medical Officer, has been examined as P.W.6, has examined the victim/ informant of the case, Karuna Bhagat (P.W.4) and Nehlius Bara, Sub Inspector of Police being Investigating officer of the case has been examined as P.W.7. Signature of the informant on the fardbeyan has been proved and marked as Exhibit-1, injury report of victim, Karuna Bhagat has been proved and marked as Exhibit-2, fardbeyan has been proved and marked as Exhibit-3, endorsement on the fardbeyan has been proved and marked as Exhibit-3/1 and First Information Report has been proved and marked as Exhibit-4. 10. After closure of the prosecution evidence, statements of the accused persons have been recorded under Section 313 Cr.P.C., on 18.11.2003, to which accused persons have denied about their involvement in the occurrence and claimed to be innocent. It is relevant to state here that co-accused, Surendra Bhagat has died on 27.02.2003 and his case has been dropped by the learned trial court. The defence has not examined any witness nor any documentary evidence has been brought on record on behalf of the accused persons. 11. The learned trial court, after hearing learned counsel for the parties and on the basis of the materials 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, namely, Sanatan Bhagat and Shambhu Bhagat have preferred the present Criminal Appeal before this Hon''ble Court, assailing the same. 12. Heard, Mr. Raja Ravi Shekhar Singh, learned counsel appearing on behalf of the appellant. Learned counsel for the appellant 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 appellant has further submitted that although charge has been framed under Section 307 I.P.C., but there is no specific allegation of assault against the appellant, Sanatan Bhagat rather as per recital of the First Information Report, allegation of assault is against accused/appellant Shambhu Bhagat, who has died during pendency of the present Criminal Appeal and the Criminal Appeal preferred by him stands abated. Learned counsel for the appellant has further submitted that witnesses, Pawan Sardar (P.W.1) and Shyam Lal Bhagat (P.W.2) are hostile witnesses. Learned counsel for the appellant has further submitted that witnesses, Pawan Sardar (P.W.1) and Shyam Lal Bhagat (P.W.2) are hostile witnesses. Urmila Bhagatain (P.W.7) is a hearsay witness and the evidence of witness, Gopal Bhagat (P.W.3) and evidence of the informant (P.W.4- Karuna Bhagat) are not in consonance with the prosecution case. Learned counsel for the appellant has further submitted that the informant and victim, Karuna Bhagat (P.W.4) has sustained, as many as, 7 injuries, but except last injury, all other injuries are simple in nature, as such, conviction of the appellant under Section 307 I.P.C. is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted that the occurrence is of the year 1991, and the appellant has faced rigours of trial for long 27 years approximately, as such, the appellant may be acquitted from the charge and conviction by extending benefit of doubt. Learned counsel for the appellant has further submitted that statement of the informant is not worth reliable to hold charge and conviction of the appellant under Section 307 I.P.C. 13. Heard, learned counsel appearing for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor. Learned counsel appearing for the State has vehemently argued and submitted that the impugned judgment of conviction and order of sentence is well-founded on the materials available on record and thus, the learned trial Court has rightly convicted the accused/appellants under Section 307 I.P.C. Learned counsel appearing for the State has further submitted that the occurrence took place in a planned manner, as the informant has asked the accused, Shambhu Bhagat not to take liquor near the worship place which led to an altercation. Thereafter in the evening, while the informant was returning to his house, accused persons, Shambhu Bhagat, Sanatan Bhagat and their father, Surendera Bhagat having farsa, sword and lathi in their hands, assaulted the informant causing bleeding injury upon him. Learned counsel appearing for the State has further submitted that in the First Information Report though no specific allegation has been mentioned against the appellant, Sanatan Bhagat, but while examining as P.W.4, the informant has categorically stated the overt act played by the appellant, Sanatan Bhagat. Learned counsel appearing for the State has further submitted that Doctor has found several injuries, which are as follows :- (1) Incised would (chop) on head above forehead. I. 2" x 1/6"x 1/4" oblique II. Learned counsel appearing for the State has further submitted that Doctor has found several injuries, which are as follows :- (1) Incised would (chop) on head above forehead. I. 2" x 1/6"x 1/4" oblique II. 2" x 1/4"x 1/6" Anterio posterior (2) Incised wound on Right Side of forehead above eyebrow Size - 2"x1/4"x1/6" (3) Chop wound on Right cheek at border of body of mandible. Size -3"x1/4"x1/6" (4) Abrasion over border of Right pinna " x " (5) Bruise at the back of chest. (1) 6"x1/4"(2) 5"x1/6" (3) 4"x1/6" - Colour Reddish brown (6) Fracture of Mandible Nature of injury - No.(1), (2), (3), (4), (5) - Simple No.(6) - grievous Age of injury - Within 24 hrs. 14. Learned counsel appearing for the State has further submitted that the appellant has rightly been convicted by the learned trial court, as corresponding injuries have been found by the Doctor (P.W.6), injury report of which has been proved and marked as Exhibit-2, as such, the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon''ble Court. 15. Heard, Mr. Raja Ravi Shekhar Singh, learned counsel appearing on behalf of the appellant and learned counsel for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor and perused the materials available on record, including the First Information Report, framing of charge, the evidence of all the seven prosecution witnesses, prosecution exhibits up-to Exhibits-4, and statement of accused recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. 16. This Court has considered the evidence of informant (P.W.4 - Karuna Bhagat) of this case on whose fardbeyan, the case has been instituted. From bare reading of the First Information Report as well as evidence of informant, this Court has found that evidence is consistent to each other. It is true that in the First Information Report, the informant has not alleged any specific role against the appellant, Sanatan Bhagat, but his presence along with his father, Surendra Bhagat has been mentioned in the First Information Report and accused/ appellant Sanatan Bhagat was holding sword. It is true that in the First Information Report, the informant has not alleged any specific role against the appellant, Sanatan Bhagat, but his presence along with his father, Surendra Bhagat has been mentioned in the First Information Report and accused/ appellant Sanatan Bhagat was holding sword. From perusal of the injury report i.e. Exhibit -2, it appears that incised wound i.e. injury No.(2) can be attributed to the attack made by sword whereas injury Nos.(1) and (3), where injury No.(1) has two parts, this can be attached to the attack made by ''bhujali'' which is against accused/appellant, Shambhu Bhagat. Under the aforesaid circumstances, this Court is of the opinion that appellant is guilty of the offence committed and punishable under Section 324 I.P.C., as the injury attributed against the appellant is simple in nature caused by weapon of offence, as defined under Section 324 I.P.C. Accordingly, conviction of the appellant under Section 307 I.P.C. is modified to Section 324 I.P.C. So far as sentence is concerned, it has been argued by Mr. Raja Ravi Shekhar Singh, learned counsel appearing on behalf of the appellant that instead of sending the appellant to jail after a lapse of 27 years of the occurrence, it would be appropriate if the appellant is saddled with some fine. Learned counsel appearing for the State has no objection to it. Considering the same, the conviction passed by the learned trial court under Section 307 I.P.C., which is being modified to Section 324 I.P.C. and, as such, sentence is also modified to the period already undergone by the appellant, subject to payment of fine of Rs.10,000/- (ten thousand), which the appellant shall deposit before the learned trial court, to be paid to the injured, Karuna Bhagat (P.W.4), within a period of eight weeks from the date of receipt of a copy of the notice issued by the learned trial court. The learned trial court shall issue notice to the appellant for payment of Rs.10,000/- (ten thousand) and after deposit of the said amount, the trial court shall issue notice to the injured person, Karuna Bhagat (P.W.4) and shall disburse the same after due verification to the injured person. The learned trial court shall issue notice to the appellant for payment of Rs.10,000/- (ten thousand) and after deposit of the said amount, the trial court shall issue notice to the injured person, Karuna Bhagat (P.W.4) and shall disburse the same after due verification to the injured person. The bail bonds of the appellant are hereby cancelled by directing him to comply the order/judgment passed by this Hon''ble Court within eight weeks from the date of receipt of a copy of the notice issued by the learned trial court. The learned trial court shall not take any legal action for eight weeks after receipt of a copy of the notice and in case, the appellant does not deposit the said amount within the stipulated time, the learned trial court is directed to take all coercive methods to apprehend the appellant to serve sentence of rigorous imprisonment for two years. With the aforesaid observation, the instant Criminal appeal is partly allowed with modification in conviction from Section 307 I.P.C. to 324 I.P.C. and sentence from rigorous imprisonment of seven years to the period already undergone with fine of Rs.10,000/- (ten thousand) and in default of payment of fine, to undergo sentence of rigorous imprisonment for two years. 17. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.