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2020 DIGILAW 95 (JHR)

Sarbeshwar Gorain v. State Of Jharkhand

2020-01-16

RAJESH KUMAR

body2020
JUDGMENT 1. By Court: Heard the parties. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 02.03.2006 passed by Sri Shiva Shankar Mishra, Addl. District & Sessions Judge-IV, Bokaro, in Sessions Trial No.20 of 2003 whereby the appellants have been convicted for the offence punishable under Sections 148 and 307 read with Section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years each for the offence under Section 148 of the Indian Penal Code and further sentence of rigorous imprisonment for seven years each for the offence under Section 307 read with Section 149 of the Indian Penal Code. Both the sentences were directed to run concurrently. 3. The criminal law has been put in motion by written report of the informant -Niranjan Gorain (P.W.-3) upon which, first information report has been registered as Pindrajora P.S. Case No.92 of 2001 ( G.R. Case No. 1108 of 2001) under Sections 147, 148, 323, 341, 307, 325 and 326 of the Indian Penal Code . As per the written report, disclosed in the FIR, informant had gone to the house of the accused-Nirodh Gorain for demanding money which he has lended to him. When he was returning to his house, Nirodh Gorain armed with Farsa, Subhash Gorain armed with Tangi, Binod Gorain and Shashi Gorain both armed with Lathi started assaulting him with an intention to kill. Nirodh Gorain assaulted with Farsa on his head. Subhash Gorain assaulted with Tangi on his arm and Binod Gorain assaulted him with Lathi. On raising alarm, father of the informant namely Biru Gorain came to the place of occurrence to save his son then he has also been assaulted with Farsa by Nirodh Gorain, with Lathi by Binod Gorain and with Tangi by Subhash Gorain. It appears that all the accused including acquitted female accused have also been alleged to have assaulted the victim namely, Niranjan Gorain(P.W.3- the informant) and his father-Biru Gorain(P.W.-8). Father of the informant has become senseless. The villagers have assembled and brought both the injured persons to the police station from where they have been referred to Chas Referral Hospital. It appears that all the accused including acquitted female accused have also been alleged to have assaulted the victim namely, Niranjan Gorain(P.W.3- the informant) and his father-Biru Gorain(P.W.-8). Father of the informant has become senseless. The villagers have assembled and brought both the injured persons to the police station from where they have been referred to Chas Referral Hospital. Nirodh Gorain is the relative of the informant from whom, he has borrowed Rs.13,000/-, out of which Rs.4,000/- has already been returned and promise has been made to return the rest of the amount by 16t h November, 2001. This is immediate cause of action, which ultimately resulted into the incident. 4. On completion of the investigation, all the accused persons including appellants have been charge sheeted and after taking cognizance, the case has been committed to the court of Sessions. Charges have been framed under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code. 5. On conclusion of the trial, these appellants have been convicted and sentenced under the aforesaid Sections of the Indian Penal Code, except Champa Devi wife Nirodh Gorain and Koili Devi wife of Sri Babu Gorai, against which, present appeal has been filed. 6. It has been submitted by learned APP that appellant No.8- namely Shashi Gorain has died in the year 2008 during the pendency of the present appeal and affidavit to this effect has been filed. Since no application has been filed by legal representative of the appellant No.-8, appeal against the appellant No.-8 namely Shashi Gorain stands abated. 7. To substantiate the prosecution story, altogether 11 witnesses have been examined. P.W.1-Bideshi Gorain, P.W.2- Niwaran Gorain and P.W.4-Kartick Gorain have been declared hostile by the prosecution. P.W.3-Niranjan Gorain is the informant and injured witness. He has supported the prosecution story and no contradiction has been extracted in the cross-examination worth consideration by the appellate court. P.W.5-Babulal Gorain is the brother-in-law of the informant. He claimed himself to be an eye witness and close relative of the informant as well as the appellants. He has supported the prosecution story. P.W.6-Dr. Dhananjay Rajak, has examined injury of P.W. 8-Biru Gorain. He has prepared the injury report, which has been marked as Ext.2. He has found seven injuries. All the injuries have been found simple in nature caused by hard and blunt substance. He has supported the prosecution story. P.W.6-Dr. Dhananjay Rajak, has examined injury of P.W. 8-Biru Gorain. He has prepared the injury report, which has been marked as Ext.2. He has found seven injuries. All the injuries have been found simple in nature caused by hard and blunt substance. One injury on head has been found grievous caused by hard and blunt substance. P.W.7-Dr. Ravindra Kumar has examined the informant-Niranjan Gorain. He has also prepared the injury report, which has been marked as Ext.2/1. As per this witness, five injuries have been found on the person of Niranjan Gorain and all the injuries have been caused by sharp cutting instrument but all the injuries have been declared as simple in nature. P.W.8-Biru Gorain is the father of the informant and one of the injured witness. He has supported the prosecution story and nothing has been extracted in the cross-examination, which is worth of consideration by the appellate court. P.W.9-Dr. Asit Kumar Mishra has been called as expert Specialist Surgeon. He has testified that none of the injuries were sufficient to cause death in ordinary course. P.W.10-Susil Kumar Khanna is the Investigating Officer. He has investigated the case partly and he has charge sheeted some of the accused. He has supported the case of the prosecution. P.W.11-Harendra Tiwari is another I.O. He has also supported the case of the prosecution. This I.O. has admitted that there is case and counter case between the parties and he has submitted charge sheet in both cases. 8. It has been submitted by learned senior counsel for the appellants that narrative of the prosecution story itself suggests that there is exaggeration. Further, the victim as well as the appellants are family members. There was some dispute regarding money transaction which has resulted in the scuffle. The nature of the injuries suggests that there was no intention to kill, rather it is scuffle between the parties which resulted in the injuries to the informant side. All the injuries are simple in nature and none of the injuries were sufficient to cause death in ordinary course. 9. Per contra, learned A.P.P. has supported the judgment of conviction and sentence and has stated that the prosecution case has sufficiently been evidenced by the witnesses including the injured witness Nos.3 and 8. All the injuries are simple in nature and none of the injuries were sufficient to cause death in ordinary course. 9. Per contra, learned A.P.P. has supported the judgment of conviction and sentence and has stated that the prosecution case has sufficiently been evidenced by the witnesses including the injured witness Nos.3 and 8. The injury has been corroborated by the medical evidence i.e. P.W.-6 and P.W.-7 and as such conviction of the appellants requires no interference. 10. From perusal of the lower court records and going through the evidence, it appears that the appellants as well as victims are close relative to each other. All the witnesses as well as the informant are family members. The independent witnesses i.e. P.Ws.1, 2 and 3 have been declared hostile by the prosecution. As per the witness of the I.O., there is case and counter case between the parties. The narrative suggests that the informant has exaggerated the incident and has tried to implicate all the family members. This exaggeration has been noticed by the court below and accordingly, two of the family members have been acquitted. The nature of the injuries and the number of assault mismatch with allegation. The nature of the injury suggests that it is a free fight between the parties and reason was transaction of money. For conviction under Section 307 of the Indian Penal Code, intention to kill must be there and intention has been tried to be evidenced through shouting of the appellants. Flow of incident does not support such intention. Further nature of injury also does not support such intention or knowledge of the appellants. 11. In view of the above discussion and considering the materials available on the record, the appellants are acquitted from the charges levelled against them under Section 307 of the Indian Penal Code, but their conviction under Section 148 of the Indian Penal Code is sustained and the conviction under Section 307 read with Section 149 of the Indian Penal Code is converted into Section 325 read with Section 149 of the Indian Penal Code. Accordingly, judgment of conviction dated 02.03.2006 is modified to that extent. 12. So far sentence is concerned, it has been submitted that the accused/appellants-Nirodh Gorain and Subhash Gorain are the main assailants. As per the allegation, accused-Nirodh Gorain and Subhash Gorain, both have remained in custody for more than 14 months. Accordingly, judgment of conviction dated 02.03.2006 is modified to that extent. 12. So far sentence is concerned, it has been submitted that the accused/appellants-Nirodh Gorain and Subhash Gorain are the main assailants. As per the allegation, accused-Nirodh Gorain and Subhash Gorain, both have remained in custody for more than 14 months. So far other accused/appellants are concerned, they have remained in custody for 38 days and one of the appellants namely Binod Gorain has remained in custody for about 98 days. 13. Considering the nature of allegation, injury as well as the fact that the incident is of the year 2001, the trial has been concluded in the year 2006 and further the appeal is being heard in the year 2020, the period of conviction is reduced to the period already undergone but the fine of Rs.1,000/-is imposed upon each of the appellants to be deposited in the court below within two months from today which shall be disbursed in favour of the informant or his legal heirs. 14. With the above modification, this appeal stands disposed of. 15. Since the appellants are already on bail, they are discharged from liability of their bail bonds.