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2021 DIGILAW 1069 (JHR)

Chandi Singh Munda v. State of Jharkhand

2021-12-20

NAVNEET KUMAR

body2021
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 05.09.2003 passed by the 1st Additional Sessions Judge, Seraikella, in S.T. No.363 of 1991, whereby the accused-appellants have been convicted for the offences punishable under Section 326/34 of IPC and sentenced to undergo R.I. for three years each with a fine of Rs.5,000/- to be paid by each u/s 326 read with section 34 of the IPC. 2. The allegations against the appellant arose in the wake of the fardbayan of informant PW-4 Sanatan Karmakar that on 14.01.90, in the evening, he was returning to his home after playing football match and at about 5 pm, the accused persons intercepted him in the village near Bora Dam and assaulted the informant PW – 4 by Bujali (a sharp cutting weapon) and lathi by which the informant sustained the injuries on his head, legs, body and hands. The informant after being injured raised hulla and fell down at some distance. Having heard the hulla, local people like PW – 1, PW - 2 and other persons arrived at the spot, then the accused persons fled away. The informant narrated the incident. On the information by PW – 1 and PW – 2, the father PW – 3 also came at the spot and took the injured son PW – 4 informant to the house. On the next day on 15.01.90 at 3 pm, police recorded the fardbeyan Ext.2 of the informant at P.H.C. Ichagarh. It is stated that about two years ago, there was an altercation between the fathers of the two sides on account of which, the accused persons had strong grudge against the informant family. 3. On the basis of the aforesaid fardbeyan of the informant PW – 4, Ichagarh P.S. Case No.01 of 90 was registered against the two accused persons, in which, after due investigation, the police submitted the charge sheet interalia under Sections 307/34 IPC and the cognizance was taken and the case was committed to the Court of Sessions. The accused persons denied the charges levelled against them and pleaded not guilty and claimed to be tried and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. The accused persons denied the charges levelled against them and pleaded not guilty and claimed to be tried and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard learned defence counsels appearing on behalf of the appellants and learned APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the impugned judgment of conviction and order of sentence passed by the court below is bad in law as well as on facts of this case. It is contended that the learned court below failed to take into consideration that before two years of the alleged occurrence, there was an altercation between the father of two sides and on account of which, the informant party had a strong grudge and falsely implicated the accused appellants in this case. It is further contended that the I.O. and the doctor in this case have not been examined, which causes serious prejudice to the appellants and there is no independent witnesses, who had supported the case of the prosecution and the witnesses are the family members being the father and mother of the injured. In the aforesaid facts, the impugned Judgment of conviction and order of sentence passed by the court below is absolutely illegal and perverse in the eyes of law and the same is fit to be set-aside. 6. On the other hand the learned APP appearing on behalf of the State submitted that the learned trial court has rightly convicted the appellants for the offence punishable under sections 326/34 of IPC and awarded the sentence accordingly as there is no merit in the appeal and this appeal is fit to be dismissed. 7. Having heard the parties and after going through the records, it is found that the charges levelled against the accused appellants Chandi Singh Munda and Shrawan Singh Munda were that they had assaulted the informant Sanatan Karmakar (PW -4), by which, he was grievously injured. The appellant No.2 Shrawan Singh Munda had used bhujali and the appellant No.1 Chandi Singh Munda had used danda to assault on the head, leg, body and hand of the informant. The appellant No.2 Shrawan Singh Munda had used bhujali and the appellant No.1 Chandi Singh Munda had used danda to assault on the head, leg, body and hand of the informant. The reason disclosed in the fardbeyan of the informant was that on earlier occasion about 2 to 3 years ago, father of the informant (PW -3) and the father of appellant No.2 Shrawn Singh Munda had been quarrelling to each other and therefore out of anguish, the informant was assaulted by them. 8. In support of the aforesaid charges, the prosecution has examined altogether seven witnesses. It is found from the record that PW – 1 Harimohan Singh Munda and PW – 2 Ravi Singh Munda have been tendered by the prosecution. It has also been found from the fardbeyan that these two witnesses namely Harimohan Singh Munda and Ravi Singh Munda were specifically named witnesses in the fardbeyan amongst others when both of them had reached to the place of occurrence just after the alleged assault but these two witnesses have been tendered by the prosecution for the reasons best known to them. 9. PW – 5 Satyaban Bisui is the advocate’s clerk and he has proved the signature on the formal FIR, which has been marked as Ext-1. In the cross-examination, this witness candidly stated that it has not been written before him. This court is unable to understand that under what circumstances, the advocate’s clerk has proved the signature on the formal FIR and no police official has come to prove this document, in view of the fact that in the cross-examination, this advocate clerk PW – 5 Satyaban Bisui has spoken that it has not been written before him and therefore this document has not been proved as per the prescribed procedure. 10. PW – 6 Kartick Kumar Mahto is another advocate’s clerk, who has been examined on behalf of the prosecution and he has proved the signature on the fardbeyan of the informant (PW-4) and it has been marked as Ext.- 2. This is another gross error of the trial, by which, the advocate’s clerk has proved the signature on the fardbeyan, when he categorically stated in the cross examination that it was not written before him. This is another gross error of the trial, by which, the advocate’s clerk has proved the signature on the fardbeyan, when he categorically stated in the cross examination that it was not written before him. It is ridiculous fact that the prosecution does not take any botheration to call any police official, who were acquainted or known to signature in order to make this document legally admissible in evidence as per the procedure established by law, neither any maker of the document, nor any person, who is known to the hand writing nor any person well versed with incident has come forward to prove these documents and therefore legally, these documents are not acceptable in evidence. 11. Further PW – 3 Rathu Karmkar, the father of the informant Rathu Karmakar is a hearsay witness as he stated that when he went to the place of occurrence, he saw that his son PW – 4 was lying in injured condition and his son PW – 4 told him that both the accused persons assaulted him by Bhujali and Lathi. The deposition of this witness PW – 3 in examination-in-chief that he first went to the police station and thereafter to the hospital, but the statement of the injured was not recorded in the police station, rather, it has been recorded in the hospital on the next date, i.e. on 15.01.90, while the incident was alleged to have taken place on 14.01.90. He categorically stated in the examination-in-chief that the son was in the conscious state and therefore the case of the prosecution that he was grievously injured gets mitigated, which is evident from the testimonies of this witness. In para – 6 of his deposition, he had stated that on the date of occurrence, he had not gone to the police station and therefore, major inconsistency is found in the deposition of this witness about visiting to the police station with the injured son PW – 4 and therefore the injuries, which is alleged to have been inflicted upon the son PW – 4 is not corroborated to the extent that it was grievous in nature in order to attract the offence punishable under Section 326 of IPC. 12. 12. PW – 4 is the victim informant Sanatan Karmakar, who stated that on the date of occurrence, he remained in the house because it was night and on the next date, he had gone to the police station. This establishes the fact that the injury, which is alleged to have been inflicted was not so grievous to immediately rush to the hospital and further, it is stated that on the next day, he had gone to the police station, although, his statement was not recorded at the police station, rather his statement was recorded in P.H.C. as evident from the fardbeyan of the witness itself. Thus from the deposition of this witness the allegation of sustaining grievous injury is not corroborated in view of the inconsistencies in the depositions of father P.W.3 and son P.W.4 and also in absence of any immediate medical treatment of this injured witness P.W.4 by the doctor. 13. PW – 7 Jageswari Devi who is the mother of the informant is also the hearsay witness and PW – 4 has told to her about the assault by the accused appellants. In para – 4, she has stated that he had first gone to the hospital and then to the police station, which is a contradictory fact with the statement of the PW – 3, by which, the case of the prosecution becomes unreliable and untrustwothy on the point of the nature of injury, which is said to have been inflicted by bhujali and danda. 14. In view of the aforesaid depositions, it is found that only three material witnesses have been examined, i.e. the informant victim PW – 4, his father PW - 3 and his mother PW – 7. The doctor, in this case has not been examined and no injury report has been brought on record to corroborate the testimonies of these witnesses on the point of injuries, vis-a-vis the medical examination report and the injury report, which is said to have been inflicted by the accused appellants and therefore the injuries alleged to have been inflicted on the body of the informant remains uncorroborated and from the deposition and the circumstances, it is not found that it is grievous in nature within the meaning of Section 320 of IPC of the grievous injury and utmost it is a case of simple hurt punishable under section 323 of IPC. Further the I.O. in this case has not been examined in order to explain the delay, which has been pointed out by the learned defence counsel that the FIR has been sent to the court of A.C.J.M. after nine days and non-examination of the I.O definitely prejudiced with respect to holding guilt of the accused appellant under Section 326 of the IPC, as neither any weapon alleged to have been used in the assault including the bhujali and danda has been recovered and not brought on the record as material exibits and in absence of these material particulars, it is not safe to hold the guilt of the accused persons for the offence punishable under Section 326 of IPC. Nevertheless, in the light of the depositions of PW -3, PW 4 and PW – 7, who have uniformly and consistently deposed about the assault on the victim PW – 4 by these two accused persons, it is found that it is the case of assault for the offence punishable under Section 323 of IPC for causing hurt. 15. In the backdrop, this Court alters the conviction of the appellants from the offence punishable under Section 326 of IPC to offence punishable under Section 323 of IPC read with sections 34 of the IPC and as a consequence, the impugned judgment of conviction and order of sentence is set-aside and this Court holds the conviction of the accused-appellants for the offence punishable under Section 323/34 of the IPC. 16. So far as the sentence is concerned, it is found that both the accused appellants are facing the trauma of criminal proceedings since 1990, more than 30 years and therefore it is not meaningful to send these appellants in jail and instead of imposing the sentence of imprisonment, it is just and fair to impose the sentence of fine by way of compensation to be payable to the informant victim PW – 4 Sanatan Karmakar. 17. Accordingly, this court having held the conviction of both the accused-appellants for the offence punishable under Section 323/34 of the IPC, sentenced them to fine jointly to pay a sum of Rs.1000/- by way of compensation to be payable to the injured PW – 4 informant Sanatan Karmakar. 18. 17. Accordingly, this court having held the conviction of both the accused-appellants for the offence punishable under Section 323/34 of the IPC, sentenced them to fine jointly to pay a sum of Rs.1000/- by way of compensation to be payable to the injured PW – 4 informant Sanatan Karmakar. 18. Since both the appellants are on bail, therefore, they are provided three months from today to pay the fine by way of compensation by depositing the amount in the government exchequer to the Nazarat of the concerned civil court in order to pay the injured PW – 4 informant Sanatan Karmakar. 19. Learned court below is directed to ensure that after deposit of the awarded fine amount by way of compensation, it shall be disbursed to the victim PW – 4 Sanatan Karmakar by sending a proper notice to him. 20. In case of default of fine, both the appellants shall undergo R.I. for a period of three months. 21. In case the appellants do not deposit the awarded fine within stipulated period of time, the learned court below shall take all necessary steps as per the provisions of law to ensure that both the appellants serve the sentence of three months R.I. in default of payment of fine. 22. With these observations, this appeal is partly allowed with modification in the judgement of conviction and order of sentence. 23. Let the Lower Court Record be sent back forthwith to the concerned court below for its compliance.