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2019 DIGILAW 1513 (JHR)

Ragho Mahra v. State of Jharkhand

2019-08-30

RATNAKER BHENGRA

body2019
JUDGMENT : Heard the learned counsel for the appellant Sri Lakhan Chandra Roy and learned counsel for the State, learned APP Sri Gouri Shankar Prasad. 2. As per the report of the o/c Jasidih Police Station dated 19-01-2018 appellant No. 1 Ragho Mahra has died and death certificate has been annexed in this regard which is on record. Hence, appeal of appellant No. 1 Ragho Mahra stands abated. 3. This criminal appeal is directed against the judgment of conviction and order of sentence dated 22.02.2003 and 24.2.2003 respectively passed by learned Additional Judge Fast Track Court No. II, Deoghar in Sessions Case No. 218/1994 by which the appellants have been convicted under Sections 323 and 325 of the IPC and sentenced to undergo R.I. for a period of five years and fine of Rs. 5,000/- each and in default of payment of fine, simple imprisonment for six months under Section 325 of the IPC and rigorous imprisonment for one year for the offence punishable under Section 323 of the IPC. It was further ordered that 60% of the fine deposited shall go to the informant/ victim. All the sentences have been ordered to run concurrently. 4. The case of the prosecution as per the written report of the informant Bhumi Mahra PW 3 is that on 10.04.1993 informant's wife Amli Devi had gone along with wife of Isru Mahra and Ragho Mahra at village Jogdiha for doing brick work. It is further stated that in village Jogdiha altercation took place with informant's wife and wives of Isru Mahra and Ragho Mahra regarding distribution of the bricks. The wife of the informant returned from village-Jogdiha and told incident to the informant. On the same day at about 6 p.m. informant's wife Amli Devi went to the well to bring water and again quarrel took place with wives of Isru Mahra and Ragho Mahra. Informant's wife returned home after taking water from well. The informant was sitting on his door. In the meantime Ragho Mahra and Isru Mahra armed with lathi arrived there and said filthy words to him and assaulted the informant by lathi on his hand as a result blood started oozing from it. Then villagers assembled and accused persons fled away. 5. On the basis of the written report of the informant Jasidih P.S. Case No. 081 of 1993 dated 27.04.1993 was registered under Section 325 of the IPC. Then villagers assembled and accused persons fled away. 5. On the basis of the written report of the informant Jasidih P.S. Case No. 081 of 1993 dated 27.04.1993 was registered under Section 325 of the IPC. After the investigation, charge-sheet under Sections 323, 325 and 307/34 of the IPC was submitted against accused persons. After cognizance case was committed to the Court of Sessions. Charges under Sections 323, 325 and 307/34, IPC were framed against the accused person and trial commenced. At the conclusion of trial accused persons or appellants were convicted and sentenced as aforesaid. Hence, this appeal. 6. During the trial, on behalf of the prosecution four prosecution witnesses were examined. PW 3 Bhumi Mahra is the informant of this case. PW 1 and PW 2 were declared hostile by the prosecution. PW 4 is Dr. Ram Gopal Singh who examined the injured informant. 7. PW 3 Bhumi Mahra is the informant. He stated in his evidence that on the day of occurrence when he reached his house he saw accused persons Ragho Mahra and Isru Mahra armed with rod and lathi started saying filthy words to him. When he objected then accused Ragho Mahra assaulted on his arm with lathi and accused Isru Mahra intended to assault on his head with rod to which he saved himself but he sustained fracture in his hand. The reason for the occurrence of incident as stated by the informant to be altercation for distribution of bricks. He reported the occurrence to the police station and gave written report there. He was treated at Hospital. 8. PW 4 is Dr. Ram Gopal Singh. He examined the injured informant Bhumi Mahra and found following injuries on his person :- (i) One bleeding round lacerated injury about the size of Fifty-paise coin x skin deep with swelling and tenderness around the injury over the left upper arm with fracture of left humers. (ii) Complain of pain over the back. (iii) Complain of pain over the chest. Regarding injury doctor opined that injury No.1 was grievous and injuries No.2 and 3 were simple and all the injuries were caused by hard and blunt substance such as lathi. He further stated that X-ray plate dated 15.04.1993 of Royal X-ray clinic confirms fracture of left hummers bone. He proved his signature on the injury report and the said injury report was marked as Ext. 3. He further stated that X-ray plate dated 15.04.1993 of Royal X-ray clinic confirms fracture of left hummers bone. He proved his signature on the injury report and the said injury report was marked as Ext. 3. ARGUMENTS OF APPELLANTS : 9. Learned counsel for the appellant has first read out the written report and compared it with the depositions of informant PW 3. He has said that in the deposition of PW 3 he makes many variations, contradictions with the written report which casts much doubt as to the allegations and therefore allegation are not sustainable. Learned counsel submitted that first and foremost in the written report informant said that the assault was made by lathi which was carried by both the appellants while in his deposition informant said that the assailants had arrived with rod and lathi. Therefore, the rod is an insertion and it has been inserted mainly for the purpose of aggravating the case against the appellants. Learned counsel further submitted that in the written report there is reference to only one injury on the hand from which blood was oozing out. However, in his evidence informant stated that there was hurt in his hand and the hand was broken in two pieces and such an injury was not described in the written report. Learned counsel further submitted that in the deposition there is another new development that the assault was made by Isru Mahra by rod on head but in the written report, the assault in the head has not been alleged. Therefore, in the written report there is reference to only one injury but in the evidence of the informant there is reference to injuries on the head as well on the hand and that too it has been exaggerated as being that hand was broken into two parts. 10. Learned counsel has also argued that two of the prosecution witnesses examined i.e. PW 1 and PW 2 who are Bhudeo Mahra and Ganga Dhar Mahra both been the declared hostile. So on such declaration, the case of the prosecution becomes further weak as against the appellant. 11. Learned counsel for the appellant then turned his argument to the evidence of the doctor and said that even from the doctor's evidence, it has been pointed out that the size of injury was of a very minute nature, almost the size of 50 paisa coin. 11. Learned counsel for the appellant then turned his argument to the evidence of the doctor and said that even from the doctor's evidence, it has been pointed out that the size of injury was of a very minute nature, almost the size of 50 paisa coin. He then submitted that his injury was of very very small nature and also caused by hard and blunt substance which means it was caused by lathi and it has been so attributed in the written report. He therefore says that no such injury can be caused by a rod. Learned counsel also says that the doctor has also otherwise said that such injury can also be caused by falling on the floor or on the ground and therefore even otherwise benefit of doubt can be given to the appellant based on the opinion of the doctor. 12. Continuing with the evidence pertaining to the doctor, the learned counsel for the appellant has also submitted that no X-ray plate was exhibited to show the kind or nature or size of fracture, so it is not possible to indicate whether the injury or fracture was minor, major or it was a hairline fracture. Therefore, nothing is indicated regarding fracture by the X-ray report. So the allegations of fracture also should not be taken on its word or that any part of the hand or the bone was broken into two pieces. 13. On conclusion, counsel for the appellant argued that it is to be noted that the matter emerges out of a domestic dispute, as has already been submitted. Moreover, the parties are related, in fact they are gotias and therefore, after such a long time when the offence is of the year 1993 and it is now 2018 and more than 25 years have passed, surviving appellant has already faced rigors and vigors of trial and one of the appellant has also passed away and the other is also about 45 years old now and in such situation, it will be reviving the old wound. Learned counsel also submitted without admitting the guilt of the appellants that these factors be also taken into account in deciding this case. Lastly, the learned counsel for the appellant has also proposed to give suitable compensation to the informant as informant was injured. ARGUMENTS OF LEARNED APP : 14. Learned counsel for the State, learned APP, Mr. Learned counsel also submitted without admitting the guilt of the appellants that these factors be also taken into account in deciding this case. Lastly, the learned counsel for the appellant has also proposed to give suitable compensation to the informant as informant was injured. ARGUMENTS OF LEARNED APP : 14. Learned counsel for the State, learned APP, Mr. Gouri Shankar Prasad, on the other hand, argued though it is a case of essentially a single witness and which has been greatly emphasized by the counsel for the appellant, the Hon'ble Court needs to note that he is not an ordinary witness and that he is an injured witness and the evidence or testimony of an injured witness even he is a sole witness carries considerable force and weight and therefore, his testimony and evidence cannot be easily brushed aside. Moreover, his evidence is supported by the evidence of the doctor PW 4 and hence there is full corroboration of the ocular evidence with the medical evidence. Learned counsel further argued that merely because there was no exhibition of the X-ray plate or it was not marked as an exhibit, it cannot be said that there was no fracture. It is to be noted that the doctor PW 4 examined the injured informant and he had given opinion that there was a fracture and therefore on that basis the doctor's evidence should be accepted. Doctor has proved the injury report which was marked as Ext. 3. 15. Lastly learned counsel submitted that the impugned order of conviction and sentence passed by the learned Court below is proper and requires no interference by this Court. FINDINGS : 16. I have heard both the counsels and have gone through the records of the case and the evidences and in the facts and circumstances I find that back ground of the dispute is quarrel between the wife of informant and wives of appellants and too for a trivial matter regarding distribution of bricks and also that informant side and appellant side are gotias. Now coming to the nature of assault, I find from the written report of the informant that surviving appellant assaulted the informant with lathi but in his examination-in-chief informant deposed that he was assaulted by accused Ragho Mahra with lathi in his hand and accused Isru Mahra assaulted him with rod with intention to kill him on his head but he escaped and sustained injury in his hand. Further, in his cross-examination at para 5 informant stated that he sustained injury by lathi and rod on his arm. So, regarding weapon of assault there is development in the evidence of informant from his written report as rod was not mentioned in the written report and only assault by lathi was mentioned in the written report. But from the injury report Ext. 3 of the doctor PW 4 I find that three injuries were sustained by the informant of which injury No. 1 was said to be one bleeding round lacerated injury about size of the 50 paise coin deep with swelling and tendered around the injury over the left upper arm with fracture of humerus. Regarding injury No.1 doctor opined it as grievous and remaining two injuries were simple in nature. But regarding injury No.1 I find that doctor did not examine the injured informant properly and he simply said that injury No. 1 was grievous as doctor stated that he found lacerated injury of size 50 paise. Learned counsel for the appellant rightly submitted that no X-ray plate was exhibited to show the kind or nature or size of fracture. Hence, conviction of the appellant No. 2 Isru Mahra under Section 325 of the IPC cannot sustain. 17. Hence conviction of the appellant No.2 Isru Mahra under Section 325 of IPC and its accompanying sentence passed by the learned Court below is set aside. However, conviction of the appellant No.2 under Section 323, IPC passed by the learned Court below in Session Case No.218/1994 is sustained and upheld. Regarding sentence to be imposed under Section 323, IPC is concerned appellant No.2 Isru Mahra is sentenced to modified sentence of two months S.I. to be undergone with a compensation of Rs.10,000/- to be paid to the injured informant Bhumi Mahra and in default of payment of compensation amount two months S.I. to be undergone. Bail bond of the appellant is cancelled. Bail bond of the appellant is cancelled. The Court below is directed to take steps for the arrest of the appellant to serve out the modified sentence of two months as imposed by this Court. 18. Accordingly, the appeal is dismissed with modification in conviction and sentence. Appeal dismissed with modification in conviction and sentence.