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2020 DIGILAW 329 (JHR)

Dilip Gope v. State of Jharkhand

2020-02-17

RATNAKER BHENGRA

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JUDGMENT : RATNAKER BHENGRA, J. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 17.12.2009 passed by Additional Sessions Judge, Fast Track Court no.-1, Bokaro in S.T. No. 52 of 2004 whereby the appellants were convicted under sections 341 and 325 r/w 34 of the Indian Penal Code and were sentenced to undergo R.I. two years and fine of Rs. 1000/- each under section 325/34 IPC and in default of payment of fine amount, two months S.I. No separate sentence has been awarded under section 341 of the Indian Penal Code. 2. The case of the prosecution as disclosed from the fardbeyan of PW-4, Madhusudan Gope dated 17.4.2003 at 8:30 p.m. at Bhojudih O.P. is that on the same day at about 5:30 p.m. the informant was sitting at his door when the accused persons came there and started abusing him for not allowing them to take water from the well and said that why he dig the well in his land, then the informant told that he had dug the well in his own land then they brought lathi and one iron rod from their home and started assaulting him. When he ran into his house in order to save himself. They also came inside the house and started assaulting him, his wife also sustained injury when she came to his rescue. According to the informant when both of them raised hulla, the neighbouring people also came there and when he fell down then the accused persons fled away. He sustained injuries on both his legs, behind his head and on the right hand. The cause of incident is that he dug a well in his land. It is also stated that his left hand has been amputated since earlier. 3. On the basis of the fardbeyan of the informant, Chandankiyari P.S. Case No. 28 of 2003 was registered. Thereafter the police had taken up investigation and submitted the charge-sheet under sections 341,323,325,448,307/34 IPC against the accused persons. Cognizance was taken and case was committed to the court of Sessions. Charges were framed under sections 448,341,325 and 307 of the Indian Penal Code. The defence of the accused was denial and they pleaded their innocence and sought to be tried. Cognizance was taken and case was committed to the court of Sessions. Charges were framed under sections 448,341,325 and 307 of the Indian Penal Code. The defence of the accused was denial and they pleaded their innocence and sought to be tried. Accordingly, trial was held as many as six prosecution witnesses have been examined by the prosecution and at the conclusion of the trial the accused persons were convicted and sentenced as aforesaid. Hence, the appeal. 4. PW-4 Madhusudan Gope is the informant of this case he in his examination-in-chief supported the story of the prosecution. He deposed that in the evening of the said day when he was sitting at the door of his house, the accused persons had come to his residence. He had deposed that they had abused him for not allowing them to take the water from the concerned well. Thereafter they had gone to their house. Dilip Gope carried lathi in his hand and Madan Gope carried iron rod with him came there and started assaulting him. In Paragraph no.3 of his evidence he has described the assault that was made on him and on his wife with the lathi and iron rod. In Paragraph no.4 he has deposed regarding his fardbeyan given to the police at the police station. He has also deposed that he was sent to Chas hospital by the doctor but he was not treated at Chas rather he was treated at Dhanbad for nineteen days and he has indicated in the court when he was discharged from the hospital he got discharge ticket. In his cross-examination he has deposed regarding the fact that his left hand had also been amputated due to electric current when he was a child. In paragraph no.8 he has pointed out that the well is in the land of the railways however, also indicated that earlier the land had belonged to them. In paragraph no.9 he has deposed that the other persons and the accused persons used to take water to which he had objected and refused them to do so. In paragraph no.11 he has deposed that there was a continuous dispute going on regarding the well water even from before the incident. He has deposed in paragraph no. 14 that during the incident other people were also watching the incident who were standing nearby but he is unable to tell their names. In paragraph no.11 he has deposed that there was a continuous dispute going on regarding the well water even from before the incident. He has deposed in paragraph no. 14 that during the incident other people were also watching the incident who were standing nearby but he is unable to tell their names. Informant has also deposed in paragraph no.16 that he regained his consciousness then he had seen the doctor and police. He has referred to his injury and said that X-ray has been done. He had identified both the accused in the court. 5. PW-1 is Jhabi Gwalin, she is the wife of PW-4. She has also deposed in similar substance to the fardbeyan as far as the main allegations are concerned and that she had come out on hearing alarm and seen the accused Dilip Gope carrying a lathi and the accused Madan Gope having a rod. They started assaulting her husband and make him injured. Her husband had also sustained injuries on his legs, right hand and head and blood was oozing out from his injuries. She has also deposed that when she tried to save her husband she was also assaulted by the appellants. She has deposed that the incident occurred over taking water from the concerned well. She had taken her husband along with the help of neighbours to the police station where his fardbeyan was recorded. Thereafter, they were sent for treatment to Chandankiyari and referred to hospital at Chas and further then to the hospital at Dhanbad where he was treated. She has recognized the accused persons in the dock. In her cross-examination in para-8 she has also deposed that her husband was handicapped from much earlier. 6. PW-2 is Subhash Gope who is not the eye-witnesses to the occurrence. However, they have supported the fact that on hearing about the occurrence they reached the place of occurrence and had found PW-4 in injured condition. He has also corroborated injuries sustained by PW-4 and that he was taken to the police station. PW-2 also corroborated that the incident occurred over taking of water from the well. PW-4 has also admitted that both the accused persons are agnates. He has also corroborated injuries sustained by PW-4 and that he was taken to the police station. PW-2 also corroborated that the incident occurred over taking of water from the well. PW-4 has also admitted that both the accused persons are agnates. However, they alone used to take the water from the said well and that the well is small and as such he did not allow others to take water though, he admitted that the well is situated on the land of railway. 7. PW-3 Khirodh Gope, in his examination-in-chief deposed that he is the son of the victim. He deposed that at the time of the occurrence he went to market and when he returned home he saw his father lying on the ground in an injured condition. And when he asked about the incident from PW-1 she said that the appellants had assaulted his father and made him injured. He also corroborated about how the assault was made on his father. 8. PW-5 is Dr. Udai Shankar Singh has examined Madhusudan Gope. He in his examination-in-chief deposed that the victim had suffered following injuries. :- (i) Lacerated wound on left leg over tibia muscle deep 4”x1½”. (ii) Lacerated wound on right tibia tuberosity 2”x1”. (iii) Compound fracture on the right hand. There was swelling and elbow was imobile. (iv) Vertex skull qaleapnovitica deep 3” with split which is corroborated and marked as Exts. 1, 1/1 and ½. Nature of the injury is grievous. 9. ARGUMENTS ON BEHALF OF APPELLANTS: Learned counsel for the appellants submitted that the issue began over the use of water from a well that is admittedly as per evidence of prosecution witnesses is of the railway. It is also indicated that the objections by the informant side was unfounded and they have no basis to oppose the same. The informant has no right to object to the same. This incident has occurred therefore the origin of the incident does not provide a just ground for the informant to object and therefore, the conviction of the appellant should not be allowed to be sustained on the false pretext of the informant. Learned counsel has also argued that in the case of the prosecution is supported only from the evidence of PW-4 and PW-1 and the doctor. Learned counsel has also argued that in the case of the prosecution is supported only from the evidence of PW-4 and PW-1 and the doctor. Counsel has argued that it has come in the evidence and even in the fardbeyan that many people have arrived on alarm and also had been watching the incident. Learned counsel therefore, argued that when so many other persons were available at the place of occurrence as per the evidence of the prosecution witnesses then why they have not been made witnesses to support the prosecution case. This is only so because the allegation rests on very weak footing. The conviction of the appellant cannot be sustained without corroboration by independent eye witnesses when there is admitted dispute between the parties and, therefore, there is absolute possibility of concoction. Counsel further states that they are agnates and as such offence may be mitigated at this stage on the basis of relationship and almost 18 years have passed since allegation were made. 10. Learned counsel for the appellants also argued that the injuries are also suspect and also the evidence of the doctor raises question. Learned counsel has argued that the date of occurrence is 17.4.2003 and the examination is done only on 29.4.2003, at least of PW-4 and that too he was an outdoor patient and he was given first aid, it indicates the nature of injuries sustained by him was minor or not at all serious. Learned counsel further submits that reliance has been placed on X-ray report however, no X-ray plate was produced during the trial. Counsel also submits that the radiologist has also not been examined to show the fracture. Hence, the entire evidence of the doctor cannot be considered and needs to be taken by some caution. 11. Learned counsel also argued that the injured persons seemingly were taken to Chandankiyari, Chas and Dhanbad for treatment but what separate treatments were given at these places is not clear. It goes in favour of the appellants and as such they should be given benefit on this course also. Learned counsel has also pointed out the evidence of PW-1 and PW-3 wherein they have stated that while the treatment of PW-1 was done at Chandankiyari the treatment of PW-4 was done in Dhanbad. 12. It goes in favour of the appellants and as such they should be given benefit on this course also. Learned counsel has also pointed out the evidence of PW-1 and PW-3 wherein they have stated that while the treatment of PW-1 was done at Chandankiyari the treatment of PW-4 was done in Dhanbad. 12. Learned counsel further submits that the fardbeyan itself seems to be doubtful because as per the evidence of PW-4 after the assault he became unconscious and he regained his consciousness only at 9:30 p.m. at Chandankiyari and, therefore, he would not be in a position to give the fardbeyan to the police at Bhojudih at 8:30 p.m. 13. Learned counsel has also argued that none of the weapons of assault either lathi or iron rod was seized by the police. Learned counsel has argued that neither clothes which were worn by PW-4 nor the blood stained soil was sent to the FSL for examination. Counsel says the absence of such evidence goes against the prosecution as to why they did not bring such evidence on record. Counsel also submits that it is to be noted that the doctor who has examined the injured persons is an eye specialist and, therefore, his evidence may not be worth considering given the fact that he had reported the injuries which do not pertain to the eye at least as far as PW-4 and in any way injuries of PW-1 is simple in nature. Learned counsel also pleads that the appellants were provoked without just cause, and have been unjustly convicted and already faced rigor of trial and custody. At the time of occurrence the appellants were around 29 and 21 years old and much time and years have passed now. ARGUMENTS ON BEHALF OF STATE:- 14. Learned counsel for the State submitted that this is a case in which two persons have been injured PW-1 Jhabi Gwalin and PW-4 Madhusudan Gope, the informant of this case. It is pointed out that from the evidence of the doctor PW-5 Dr. Udai Shankar Singh it is apparent that he had received as many as four injuries out of which three injuries were grievous in nature. Learned counsel has pointed out that evidence of the doctor cannot be demolished because of certain dates. It appears from the evidences of the doctor that he had examined the injured and seen the x-ray. Udai Shankar Singh it is apparent that he had received as many as four injuries out of which three injuries were grievous in nature. Learned counsel has pointed out that evidence of the doctor cannot be demolished because of certain dates. It appears from the evidences of the doctor that he had examined the injured and seen the x-ray. He has clarified so in his evidence. The report of the doctor has to be read along with the depositions and further regarding the letter of the x-ray plate or the report of the radiologist does not mean that the doctor himself has not seen or perused the same. It is further submitted that the evidence of the doctor read with the evidence of PW-1 and PW-4 would be enough to sustain the conviction of the appellants. He has also argued that in the case where the ocular evidence of two injured persons are reliable and trustworthy then also conviction can be sustained. FINDINGS: 15. Having heard learned counsels for both sides, having gone through the records of the case and evidence and in the facts and circumstances of the case it appears that this is a case in which allegations have been made against the appellants for assaulting PW-4 and PW-1 with iron rod and lathi. Injuries were sustained by both PW-1 and PW-4 and from the evidence of PW-5 the injuries are similar as alleged and the injuries sustained by the injured do not seem to be injuries caused by fall as has been suggested by the doctor. There are grounds raised regarding the lack of radiologist’s report and the letter of the x-ray plate, however, even in the absence of these, it is apparent that PW-4 has sustained injuries. The reasons for the appellant’s presence at the place of occurrence only seems to be assault and also attributed to the lathi and iron rod. This is the main feature of the case. It is not so that the assault or injuries can be denied. However, regarding the origins of the assault it is the result of the informant party objecting to the appellants from taking water from the well which may not have been sufficient grounds for the informant’s side to object as they have themselves admitted that the well was on the land of the railways. However, regarding the origins of the assault it is the result of the informant party objecting to the appellants from taking water from the well which may not have been sufficient grounds for the informant’s side to object as they have themselves admitted that the well was on the land of the railways. Both the counsels have also concurred on this that the evidence was so. What seems to be clear is that first that the land on which the well stood may have belonged to both the parties or even one of the parties however it is now on the land of the railways and, therefore, the party who has right on it would be the railways. Therefore, question arises whether the objections should have been made by the informant’s side at all. However, the counter question is whether the appellants should have gone to their house collected the weapons of assault which is lathi and iron rod and then assaulted PW-1 and PW-4 resulting in injuries. 16. However, it is clear from the report of the doctor that injury had happened which is serious in nature which is supported by the ocular evidence of PW-4 who is also an injured and eye witness to this incident and there is no inconsistencies in his statement whether in his fardbeyan or in his deposition. So it is proved that assault took place. 17. Therefore, this court find that though there is assault and injuries created in the incident however, initially objection to the taking of water from the well was not proper on the part of the informant side. However, the injuries were also significant and also grievous. Nevertheless, I am still led to believe that if the informants side had not objected to taking water from the well that is now on Railway land the incident would not have occurred. To that extent there was some provocation on the part of the informant’s side. However, reaction of the appellants may be disproportionate. 18. Learned counsel has also argued that there is mitigating circumstances which may be considered while passing the sentence and they have considered. 19. Therefore, based on the aforesaid reasons this court thinks it proper to sustain the conviction of the appellants Dilip Gope and Madan Gope under both the sections i.e. 341 and 325 read with 34 of the Indian Penal Code. 19. Therefore, based on the aforesaid reasons this court thinks it proper to sustain the conviction of the appellants Dilip Gope and Madan Gope under both the sections i.e. 341 and 325 read with 34 of the Indian Penal Code. However, given the mitigating circumstances which has been raised by learned counsel for the appellants, the appellants are sentenced to undergo S.I. for one month and any period undergone by them shall be subtracted. However, compensation of Rs. 3,000/- each i.e. total of Rs. 6,000/- to be paid to the injured PW-4 within two months from the date of receipt of the copy of this judgment. The learned concerned or successor court is directed to take steps for the appellants to serve out the modified sentence. Their bail-bonds are cancelled. 20. Accordingly, this criminal appeal is dismissed with modification in sentence. 21. This court appreciate the assistance rendered by Mr. Girish Mohan Singh, the learned Amicus. 22. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). 23. Accordingly, this criminal appeal is dismissed with aforesaid modification in sentence.