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2019 DIGILAW 1156 (JHR)

Tripurari Singh Chowdhary v. State of Jharkhand

2019-06-17

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT : I.A. No. 10910/2018 has been filed for condonation of delay of 36 days in preferring the instant appeal. It has been stated by the learned counsel for the appellant / Informant that he has earlier suffered fracture in his right hand due to accident and had gone to Bangalore on 15.10.2018 for medical check-up in Fortis Hospital and returned on 25.10.2018. As such, there is delay in preferring the appeal. After considering the same and on being satisfied with the reasons stated therein, we are inclined to condone the delay in preferring the appeal. I.A. No. 10910/2018 stands allowed and disposed of. 2. Heard learned counsel for the Informant-appellant Kumar Nilesh and learned counsel for the State Mr. Ravi Prakash, Additional Public Prosecutor. 3. Instant appeal has been filed against the impugned judgment of conviction and order of sentence both dated 21.08.2018 passed in Sessions Trial No. 189/2012 by the learned District and Additional Sessions Judge-III, Dhanbad, whereby Respondent Nos. 2 to 4 though have been charged under sections 323/341/307/447/34 I.P.C, but have been convicted by the learned Trial Court for the offence under section 324 I.P.C. and were released under section 4 of Probation of Offender Act after execution of a bond of Rs. 5,000/- each with two sureties of the like amount each with a condition that they shall maintain peace and good behaviour for three years. 4. Learned counsel for the Informant appellant Kumar Nilesh has submitted that the parties are agnates and the accused / Respondent Nos. 2 to 4 have tried to take forceful possession of the land, in respect of which, they lost in title suit. On the fateful day, they went to the land in question and assaulted the informant and his brother Dhruveshwar Singh Chowdhary who sustained injury on his head. Learned Trial Court has convicted the accused / Respondent Nos. 2 to 4 for the offence under section 324 I.P.C., but subsequently released them under section 4 of Probation of Offender Act on the ground that this was their first offence and they are agnates and dispute is in respect of paternal property. Learned counsel for the appellant has further submitted that these persons have taken law in their hands, as such, they should not be released under section 4 of Probation of Offender Act and should have been awarded more sentence for committing such offence. 5. Learned counsel for the appellant has further submitted that these persons have taken law in their hands, as such, they should not be released under section 4 of Probation of Offender Act and should have been awarded more sentence for committing such offence. 5. Learned counsel for the State has submitted that the learned Trial Court has rightly convicted the accused / Respondent Nos. 2 to 4 under section 324 I.P.C as from the evidence of the prosecution witness, it has not been proved before the learned Trial Court that there was any mens rea on the part of the Respondents 2 to 4 to commit murder of the Informant and his brother Dhruveshwar Singh Chowdhary. Learned State counsel has thus submitted that the learned Trial Court has rightly given the benefit of section 4 of Probation of Offender Act to the Respondent Nos. 2 to 4 as it was their first offence and the dispute was between the agnates. As such, this Court may not interfere in the finding recorded in the impugned judgment of conviction and order of sentence whereby Respondent No. 2 to 4 have been convicted under section 324 I.P.C. 6. From perusal of the materials brought on record, it appears on the basis of the fardbeyan of the Informant Tripurari Singh Chowdhary that his cousin Kashinath Singh Chowdhary, Santosh Singh Chowdhary @ Santu and Rajiv Kumar Singh Chowdhary @ Mantu (Respondent No. 2 to 4 herein) came to his ‘Khalihan’ and asked him not to clean ‘Khalihan’. It is further alleged that that all the accused persons armed with lathi-danda assaulted the informant and his own brother Dhruveshwar Singh Chowdhary, due to which, both of them have sustained injuries and fell down. Accused persons have assaulted them by means of lathi with intention to kill them and did not stop till brother of the Informant became unconscious. On brawl, several persons came there and thereafter they stopped assaulting. Dispute between the parties is in respect of land situated in Plot No. 553 (old) under Khata No. 58 (old), Plot No. 735 and 734 under Hal Survey Khata no. 124 and 126 and, total area 12 decimal. It is further stated that the accused persons have contested Title Suit but they lost their case and have not preferred any appeal. 124 and 126 and, total area 12 decimal. It is further stated that the accused persons have contested Title Suit but they lost their case and have not preferred any appeal. As such, by forceful means, they want to encroach over the land of the informant causing injury on both hands, face and back of the Informant and head, cheek, arm and back of his brother. 7. On the basis of fardbeyan, police has instituted Govindpur (Barwadda) P.S. Case No. 407/2010 dated 11.11.2010 under sections 323/341/307/447/504/506/34 I.P.C. After investigation, police has submitted charge sheet under sections 341,323,307,447,504 and 506/34 I.P.C against the accused persons. Cognizance of the offence has been taken and the case was committed to the Court of Sessions where charge has been framed against the Respondent Nos. 2 to 4 under sections 307/447/323/341/34 I.P.C.. 8. In support of the prosecution case, prosecution has examined altogether seven prosecution witnesses. P.W.1 is Dhruveshwar Singh Chowdhary, P.W.2 is Tripurari Singh Chowdhary, P.W.3 is Vikash Singh Chowdhary, P.W.4 is Dr. Arun Kumar Barnwal, P.W.5 is Vaneshwar Tudu, P.W.6 is Chakradhar Singh Chowhdary and P.W.7 is Sohan Lal Sudhakar. Prosecution has also adduced number of documentary evidence as under: Ext.1: Signature of Tripurari Singh on the Fardbeyan Ext.1/1: Signature of Pawan Kumar Singh on the Fardbeyan Ext.1/2: Endorsement on the Fardbeyan Ext.2: Order sheet of order dated 18.05.2001 Ext.3: Injury Report of Tripurari Singh Ext.3/1: Injury Report of Dhruveshwar Singh Ext.4: Formal FIR Surveyor report has been brought on record which has been marked as ‘x’. 9. After closure of the prosecution evidence, statement of the accused persons under section 313 Cr.PC have been recorded where they claimed themselves to be innocent and stated that they have been falsely implicated in this case. 10. From perusal of the material adduced / brought by the prosecution, it appears that the parties are agnates and there was civil dispute between the parties. P.W.4 Dr. Arun Kumar Barnwal has proved the injury report of the informant Tripurari Singh Chowdhary and found the following injuries: (i) Lacerated wound on the left thumb size 1”x ½”x skin deep. (ii) Bruise on right index finger ½”x ¼”. Age of injury: within six hours. Object of Injury: Hard blunt object. Nature of Injury: Simple He has also examined Dhruveshwar Singh Chowdhary and found the following injuries on his person. (ii) Bruise on right index finger ½”x ¼”. Age of injury: within six hours. Object of Injury: Hard blunt object. Nature of Injury: Simple He has also examined Dhruveshwar Singh Chowdhary and found the following injuries on his person. (i) Lacerated wound on right side of forehead 3”x2” x skin deep. (ii) Abrasion on left side of body posteriorly size 3”x1”. (iii) There was tenderness over lower chest in the left side. On perusal of x-ray plate, x-ray skull optilateral and x-ray chest AP view in plate No. 1827 three in number dated 13.11.2010. No bone injury was found. Age of injury – within six hours. Object of injury – Hard blund object. Nature of injury – Simple. From perusal of the injury reports, it is apparent that there is no such injury which could have lead to be fatal on the injured persons. From perusal of the evidence on record, it is also apparent that the parties are agnates and there is civil dispute between the parties. From perusal of the documents produced by the defence in support of its case which have been proved and marked as Ext. A series, it is apparent that there is previous litigation between the parties and the evidence adduced are related to civil litigation and there was absence of mens rea on the part of the respondent no. 2 to 4 to commit murder of the injured persons. 11. On perusal of the evidence on record, we are of the considered view that the learned Trial Court has rightly convicted the accused / Respondent Nos. 2 to 4 under section 324 I.P.C and the findings recorded by the learned Trial Court on the basis of the evidence and discussions made above are well reasoned and it does not require any interference by this Court at this stage. Accordingly, we are not inclined to grant Leave to Appeal preferred against the acquittal of the Respondent Nos. 2 to 4 under section under sections 307, 447, 323, 341/34 I.P.C., nor for enhancement of sentence awarded by the learned Trial Court under section 4 of Probation of Offender Act for commission of the offence under section 324 I.P.C. Accordingly, I.A. No. 10911/2018 seeking Leave to Appeal is hereby dismissed. Consequently, appeal is also dismissed.