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2019 DIGILAW 1970 (JHR)

Jairam Choudhary v. State Of Jharkhand

2019-12-05

RAJESH KUMAR

body2019
JUDGMENT Rajesh Kumar, J. - Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 13.02.2006 passed by Sri Vishnu Kant Sahay, 4th Addl. District and Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 482 of 1993 whereby and whereunder these appellants have been convicted for the offences under Sections 324 and 307 of the Indian Penal Code and have been sentenced to undergo R. I. for three years with a fine of Rs. 2000/- each for the offence under Section 307 of the Indian Penal Code and in default thereof, S.I. for six months. Appellant no. 3 was charged under Section 27 of the Arms Act, but he has been acquitted from the said charge. 3. The informant, Shaymdeo Chaudhary, has lodged an FIR on 04.07.1991 making allegation that while he was cultivating his land, these appellants came armed with Garasa and assaulted him and five other family members. During scuffle, Ram Prasad Chaudhary reached the place of occurrence with barchha and pistol. The pistol was handed over to Bishnudeo Chaudhary. Bishnudeo Chaudhary has fired the pistol, which caused injury in the leg of Yogendra Chaudhary. The cause of dispute was inter se land dispute. 4. On the basis of statement of the informant, Bishrampur P. S. Case No. 133 of 1991 was registered under Sections 324 and 307 of the Indian Penal Code and under Section 27 of the Arms Act. On completion of investigation, charge sheet was submitted against the accused persons and after cognizance was taken, the case was committed to the Court of Sessions. Charges were framed under Sections 324 and 307 of the Indian Penal Code against all these accused persons and under Section 27 of the Arms Act against Bishnudeo Chaudhary to which the accused pleaded not guilty and claimed to be tried. Trial has been conducted and all the appellants have been convicted under Sections 324 and 307 of the Indian Penal Code. Charge under Section 27 of the Arms Act has not been proved. 5. On conclusion of the prosecution case, statement of the accused persons under Section 313 of the Cr. P. C. was recorded, in which they pleaded not guilty. 6. Being aggrieved, the present appeal has been filed. 7. Charge under Section 27 of the Arms Act has not been proved. 5. On conclusion of the prosecution case, statement of the accused persons under Section 313 of the Cr. P. C. was recorded, in which they pleaded not guilty. 6. Being aggrieved, the present appeal has been filed. 7. The issue raised before this Court that the appellants have wrongly been convicted under Section 307 of the Indian Penal Code as ingredients of Section 307 of the Indian Penal Code have not been proved. Further, a compromise has taken place between the parties and as such, sentence can be reduced to the period already undergone. 8. To substantiate the charges, altogether nine witnesses have been examined by the prosecution. P. W. 1, Shyamdeo Chaudhary is the informant and the injured witness, who has supported the FIR. It has been admitted that there is a land dispute between the parties. There is a case and counter case between the parties with regard to the same incident. The appellants have also lodged an FIR, which has been registered as Bishrampur P. S. Case No. 134 of 1991. There is a land dispute between the parties for which various litigation are going on. P. W. 2- Ramji Chaudhary, P. W. 3-Jaiprakash Chaudhary, P. W. 4-Bijay Chaudhary are the eye witnesses, who were present at the place of occurrence, but they have not sustained injury. All the witnesses have supported the incident. P. W. 5, Rajdeo Chaudhary is another injured witness, who has supported the prosecution story and nothing has been extracted in the cross-examination to disbelieve regarding free fighting between the parties. One of the injured witness namely Yogendra Chaudhary whose injury has been marked as Ext. 2, has died during trial and as such he has not been examined. P. W. 6- Santu Chaudhary and P. W. 7-Ram Chandra Chaudhary have not seen the fight between the parties, but they are witness of their presence at the place of occurrence. P. W. 8, is Dr. Shyam Bihari Mahto, who has treated the injured persons namely Yogendra Chaudhary, Shyamdeo Chaudhary, Sukhari Chaudhary and Rajdeo Chaudhary and their injury reports were marked as Ext. 2 to 2/3. Injuries are as follows: "Ext. P. W. 8, is Dr. Shyam Bihari Mahto, who has treated the injured persons namely Yogendra Chaudhary, Shyamdeo Chaudhary, Sukhari Chaudhary and Rajdeo Chaudhary and their injury reports were marked as Ext. 2 to 2/3. Injuries are as follows: "Ext. 2 is in the name of Yogendra Chaudhary and the Doctor has found the following injuries:- I- Incised injury 3" x 1 " x 1" over the left shoulder, bleeding; II- Incised injury 3" x 1" x " obliquely on the right cheek; III- Incised injury 2 " x "x " on the anterior part of the left wrist; IV- Lacerated injury " x " x bone deep just above the left medial analleolus, bleeding; V- Lacerated injury 1 " x 1" x bone deep in front of the left ankle, bleeding with everted margin; VI- Incised injury 1 " x 1/8" x 1/8" on the right and anterior part of scalp; VII- Incised injury 1" x 1/8" x 1/8" on the left occipital process. Ext. 2/1 is in the name of Shyamdeo Chaudhary and following injuries were found on his body:- I- Lacerated injuries 2" x " x " behind the right occipital region; II- Incised injury 3" x "x " tapering below and behind the left ear from scalp to neck, bleeding. III- Incised injury 1 " x " x " over plmar part and base of the left thumb; IV- Incised injury 1 " x " x bone deep cutting the terminal part of the left ring finger obliquely. V- Eccomosis 8" x1" (six such) brisk cross over the upper part of back and scapular region. Ext. 2/2 is in the name of Sukhari Chaudhary and following injuries were found:- I- Lacerated injury 2" x " x " over the lower part of the nose, bleeding; II- Fracture of the right radius and ulna with swelling 3" above and below middle of left fore-arm tender; III- Echomosis 8" x 1" and 6" x 1" (eight such) brisk cross over the left scapular region and back, tender ; IV- Echomosis of both lids of both eyes. Ext. 2/3 is in the name of Rajdeo Chaudhary and following injuries were found of his person:- I- Lacerated injury 4" x " x skin deep over the left and anterior part of the scalp, bleeding; II- Lacerated injury 2" x " x " just medial to injury no. Ext. 2/3 is in the name of Rajdeo Chaudhary and following injuries were found of his person:- I- Lacerated injury 4" x " x skin deep over the left and anterior part of the scalp, bleeding; II- Lacerated injury 2" x " x " just medial to injury no. (1), bleeding ; III- Incised injury 1 " x 1/8" x 1/8" and incised injury 1" x 1/8" x 1/8" on the anterior part of left wrist. IV- Colles fracture of the left wrist. During cross- examination this witness has said that injury IV of Jogendra Choudhary cannot be caused by other weapon then fire-arm and that injury may not caused death in ordinary course. The Doctor has further opined that none of the injury of any of the injured was capable of causing death in ordinary course. 9. It has been opined that none of the injury was sufficient to cause death in ordinary course. Investigating officer has not been examined in the present case. From perusal of the impugned judgment, it appears that the parties have compromised and there is no subsisting dispute between the parties and they are presently living peacefully and they are related to each other. So far as charge under Section 307 of the Indian Penal Code is concerned, it is nothing, but failed attempt to murder. Reference may be made to the judgment rendered by the Apex Court in the case of Shyam Sharma Vs. State of Madhya Pradesh and Anr, (2017) 9 SCC 362 . Relevant para-4 of the said judgment is quoted hereinabove:- "4. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. As rightly submitted by the learned counsel for the appellant, both Anoop Bhargava (PW-1) and Ramprakash (PW-4) have turned hostile. It was established that Manjeet Singh has sustained gunshot injury. Dr. Vikram Singh Tomar (PW-2), on examination, found two entry wounds over the lateral aspect of left shoulder and interior aspect of upper part of left scapula region of Manjeet Singh. However, firearm injury suffered by Manjeet Singh (PW-3) could not be impeached in their crossexamination. It is also evident that the accused fired at Manjeet Singh without any pre-meditation. The injury suffered by Manjeet Singh was not on the vital part of his body. However, firearm injury suffered by Manjeet Singh (PW-3) could not be impeached in their crossexamination. It is also evident that the accused fired at Manjeet Singh without any pre-meditation. The injury suffered by Manjeet Singh was not on the vital part of his body. In our view, the prosecution has failed to prove that accused intended to cause the death of the deceased. Therefore, the appellant can only be convicted under Section 324 of the IPC and not under Section 307 of the IPC. Therefore, the appellant is convicted under Section 324 of the IPC instead of Section 307 of the IPC." Law is clear that if the ingredient of murder is available, but it has failed due to the circumstances not under the control of the accused, in that case only Section 307 of the Indian Penal Code is made out. In the present case, as per the evidence, there is land dispute between the parties, which has been evidenced. There is free fight between the parties and injury has been reported to be not sufficient in ordinary course to cause death as per the opinion of the doctor i.e. P. W. 8. The Court below has not given the finding regarding the fact that which party was aggressor. Thus considering the entire circumstances and evidence available on record, this Court comes to the conclusion that ingredients of Section 307 of the Indian Penal Code is not established and as such, the appellants are discharged from the charge of Section 307 of the Indian Penal Code. So far as charge under Section 324 is concerned, sufficient evidence has been brought on record. It has been proved beyond all reasonable doubts, that the appellants have caused injury. As there is settlement between the parties and fight was not premeditated, rather it was at the spur of moment for a piece of land. There is a land dispute between the parties. 10. Considering the entire facts and circumstances and specially reason that the incident is of the year 1991 and trial has commenced in the year 1993 and concluded in the year 2006 and now the appeal is being heard in the year 2019, the sentence is reduced to the period already undergone i.e. 16 days. So far as fine amount is concerned that is enhanced to Rs. So far as fine amount is concerned that is enhanced to Rs. 25,000/- to be deposited before the Court below and the same shall be disbursed in favour of the legal heirs of the informant. 11. Accordingly judgment of conviction and order of sentence dated 13.02.2006 passed by Sri Vishnu Kant Sahay, 4th Addl. District and Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 482 of 1993 is, hereby, modified to the extent indicated above. The appeal stands disposed of. 12. Since the appellants are already on bail, they are discharged from the liability of their bail bonds.