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2022 DIGILAW 1136 (JHR)

Krishna Sonar v. State of Jharkhand

2022-09-08

NAVNEET KUMAR

body2022
JUDGMENT : 1. Instant appeal is directed against the judgment of conviction and order of sentence dated 13.10.2006 passed by the learned Additional Sessions Judge, F.T.C., Koderma, in Sessions Trial No. 515 of 2001, in connection with Chauparan P.S. Case No. 44 of 1999, corresponding to G.R. Case No. 206 of 1999 at Koderma, Jharkhand, whereby and where under the appellants (including one dead appellant) were found guilty for the offence punishable under section 324 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and both were sentenced to undergo rigorous imprisonment (hereinafter referred to as R.I.) for 3 (three) years u/s 324 of IPC. 2. It appears that during the pendency of this appeal, learned Spl.P.P. has filed a counter affidavit on behalf of the State stating therein that one of the appellants namely the appellant No. 1 Shankar Sonar has died and appellant No. 2 is alive. A Xerox copy of the report dated 16.08.2022 along with Aadhar card and death certificate certified by Mukhiya of village Panchayat-Chandwara East, Prakhand Chandwara, Koderma of deceased Shankar Sonar are annexed with the counter affidavit filed on behalf of the State which is marked as Annexure A. From the perusal of the annexure, it appears that the appellant No. 1 has died about 15 years ago and the Mukhiya of Gram Panchayat, Chandwara Purvi, Prkahand: Chandwara, Koderma has given a certificate to that effect on 16.08.2022. The learned defence counsel also submitted that the appellant No. 1 has expired and no close relative has come forward to continue with this appeal and therefore, let this appeal be abated with respect to the deceased appellant No. 1 Shankar Sonar. Having taken into consideration the aforesaid facts and submission advanced on behalf of the parties, this appeal gets abated with respect to the deceased appellant No. 1 Shankar Sonar and let his name be deleted from the cause title of memo of appeal. Now this appeal is heard against the sole surviving appellant Krishna Sonar. 3. The prosecution case is based on the fardbeyan of the informant Sita Ram Sonar (P.W.-1) which was recorded by B.K. Pandey, the then S.I. of Chandwara O.P. at about 9.30 p.m. on 03.04.1999. The informant stated in the fardbeyan that on 03.04.1999 at about 8.00 hours at night the informant Sita Ram Sonar along with his son Manoj Sonar were present at his door. The informant stated in the fardbeyan that on 03.04.1999 at about 8.00 hours at night the informant Sita Ram Sonar along with his son Manoj Sonar were present at his door. At that very time the accused Shankar Sonar (he is no more alive now) and his son Krishna Sonar came there and told them that they had trapped by solemnizing the marriage of Krishna Kumar and abused him and his son and when the same was protested by informant and his son Manoj Sonar, the aforesaid two accused got infuriated and accused Shankar Sonar (since deceased) assaulted with an axe on the head of informant and blood started oozing out from the head and the accused Krishna Sonar assaulted on the head of informant’s son Manoj Sonar. Meanwhile, four others accused Mahadeo Sonar and Binod Sonar with Tangi in their respective hand, Rajendra Sonar with Farsa in his hand and Janki Sonar with lathi in his hand reached there and they also started to assault the informant, his son Manoj Sonar and his wife Malti Devi. Manoj fell down on the ground and lost his sense. Malti Devi went towards village for fetching help then villagers came and took them (informant, his son and wife) to Thana. On the basis of aforesaid Fardbeyan of the informant, a Chauparan P.S. Case No. 044/99 was lodged on 04.04.1999 u/s 341, 323, 324, 307/34 of IPC against all the accused persons. On completion of investigation, the police submitted the charge sheet u/s 341, 323, 324, 307 and 34 of IPC against all six accused persons namely Shankar Sonar, Mahadeo Sonar, Binod Sonar, Krishna Sonar, Rajendra Sonar and Janki Sonar. That on 10.04.2002 the charges with two heads i.e. for the offences punishable u/s 307/34 and 323 of IPC were framed against all the six accused persons, while charge under one head i.e. for committing offence u/s 324 of IPC was framed against two accused persons namely, Krishna Sonar and Shankar Sonar and on explanation of charges, accused pleaded not guilty and claimed to be tried. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Sahil, the learned counsel for the appellant and Mr. Prabir Chatterjee, the learned Spl.P.P. for the State. Arguments advanced on behalf of the appellant 6. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Sahil, the learned counsel for the appellant and Mr. Prabir Chatterjee, the learned Spl.P.P. for the State. Arguments advanced on behalf of the appellant 6. The learned counsel appearing on behalf of the appellant submitted that the sole surviving appellant Krishna Sonar has been convicted for the offence punishable u/s 324 of IPC but neither the doctor has been examined nor the injury report has been brought on record in order to substantiate the factum of the injury caused by the dangerous weapon within the meaning of section 324 of IPC and therefore, the learned trial court has not applied its judicial mind. The learned counsel appearing on behalf of the appellant further submitted that the I.O. who is very vital witness in the present case has not been examined to prove the case of prosecution and no reason was given for this omission. He further submitted that Malti Devi, wife of the informant and so called a victim has also not been examined without assigning any reason. He further submitted that no eye witness except victims themselves have been produced by prosecution and all the witnesses are highly interested witnesses and untrustworthy and cannot be relied upon. Further, it has been pointed out that the injuries were alleged to have been inflicted by tangi which has also not substantiated for want of the examination of the doctor and proof of the injury report and as such a doubt has been created from the version of P.W. 2 in para 2 of his deposition that this appellant was holding lathi and not the Tangi although P.W. 1 and P.W. 4 had deposed that the appellant was holding Tangi in his hand and he had inflicted injury upon the injured P.W. 4 by Tangi and therefore, the charge as set out during the course of trial is not substantiated due to non-examination of the doctor and non-production of the injury report by the prosecution, and therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 7. Arguments advanced on behalf of the State 7. On the other hand, learned A.P.P. appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that P.W. 1 was Sita Ram Sonar and another injured persons P.W. 4 Manoj Swarnkar have consistently supported the case of the prosecution as presented in the FIR and both of them have been injured due to assault caused by the appellants Krishna Sonar and his father Shankar Sonar (since dead). Further P.W. 2 and P.W. 3 who are the independent witnesses being the co-villagers have also supported the case of the prosecution and stated that both the accused appellants (including deceased appellant) have assaulted upon both the injured persons P.W. 1 and P.W. 4 and, therefore, the learned trial court has rightly held the guilt of the accused/appellant for the offence punishable u/s 324 of IPC and there is no legal evidence to interfere in the impugned judgment of conviction and order of sentence and hence, let this appeal be dismissed being devoid of merit. Appraisal and Findings 8. Having heard the parties, perused the record of this case including the Lower Court Record. 9. It is found that it is admitted case of the prosecution that the appellant was the cousin brother of the P.W. 4 Manoj Swarnkar who is said to have been injured by tangi blow inflicted by this appellant Krishna Sonar. It is also found that the dispute arose because of the marriage of the appellant who alleged that his marriage was forcefully solemnized by the intervention of the informant people which was against his will and, therefore, the quarrel took place and the alleged injuries were inflicted upon the injured by the appellant. In order to substantiate, its case the prosecution has been able to examine altogether four witnesses who are as under: 1) P.W.1- Sita Ram Sonar (the informant and victim) 2) P.W.2 - Mahabir Sonar 3) P.W.3 - Ram Bilash Kasera 4) P.S. 4 - Manoj Swarnkar (informant’s son and one of the victims) On the other hand, the defence has also adduced one witness Girdhari Sonar DW-1. He is the only witness who has been examined by the accused persons. On perusal of his evidence it appears that he is the co-villager of the parties concerned. He is the only witness who has been examined by the accused persons. On perusal of his evidence it appears that he is the co-villager of the parties concerned. He had deposed that he had no knowledge that on 03.04.1999 Shankar Sonar and others accused assaulted with Tangi to Sita Ram Sonar and his son. Thus he had totally denied the prosecution case. 10. P.W. 1 Sita Ram Sonar is the informant of this case and supported the case of the prosecution. According to this witness this appellant Krishna Sonar and Shankar Sonar (deceased appellant) were armed with Tangi and rest of the accused persons were armed with lathi and Shankar Sonar gave a Tangi blow on his head and he received head injury which was bleeding. In the cross examination at para 6 he had stated that occurrence continued till 20-30 minutes and he had sustained injury, one on his head and second on his mouth, he had further stated that no one assaulted to him by lathi rather he had sustained two injuries by Tangi. It is specifically stated in para 9 that this appellant Krishna Sonar holding tangi in his hand and had inflicted Tangi blow upon the head of his son by which he sustained injuries. In the cross examination nothing has been brought forth to disbelieve the version of this witness as alleged in the FIR and thus this witness P.W.1 (informant) has fully supported his case in his testimony as presented in the FIR to the extent that the appellant Krishna Sonar had assaulted him by tangi by which he and his son had sustained the injuries. 11. P.W. 2 Mahabir Sonar and P.W. 3 Ram Bilash Kasera were co-villagers and both of them have also supported the case of the prosecution although they had not specifically stated the name of any accused in regard to the assault inflicted by this appellant but both of them have consistently and uniformly deposed that the injured P.W. 1 and P.W. 4 were assaulted by the appellant by Tangi along with the other co-accused person. From the perusal of the evidence of PW-2 it appears that at the time of occurrence, he was present at his house and after hearing the noise of Sita Ram Soanar he came out from the house and saw that Sita Ram Sonar had sustained head injury. From the perusal of the evidence of PW-2 it appears that at the time of occurrence, he was present at his house and after hearing the noise of Sita Ram Soanar he came out from the house and saw that Sita Ram Sonar had sustained head injury. He had specifically adduced that he did not see the occurrence of Marpit but he came to know about occurrence of Marpit which took place. From the evidence of PW-3 it appears that he did not see the occurrence of Marpit, but, from his evidence it appears that when he reached to place of occurrence Mahadeo Sonar, Shankar Sonar, Binod Sonar and Rajendra Sonar were seen at the place of occurrence. It has been pointed out by the learned defence counsel appearing on behalf of the appellant that P.W. 2 Mahabir Sonar has created a doubt as he stated in para 2 that this appellant was holding lathi in his hand while the case of the prosecution is that the P.W. 4 had sustained the injury by tangi of this appellant Krishna Sonar. Since the doctor has not been examined in this case nor even any kind of chit of paper related to injury or the treatment of alleged sustained injury, had been brought on record by the prosecution, therefore, the nature of injury inflicted upon the injured P.W.-1 and P.W.-4 either by the tangi or by lathi could not be ascertained. Further, it is found that the injury report has also not been brought on record by the prosecution and, therefore, in the absence of the injury report it is unable to appreciate by this Court, the nature of the injury inflicted upon the injured persons. The appellant has also been debarred from the valuable rights to draw the attention of the doctors, as to by which weapon the injury was caused, in absence of the cross examination of the doctor with respect to the nature of injuries inflicted upon the injured persons. The appellant has also been debarred from the valuable rights to draw the attention of the doctors, as to by which weapon the injury was caused, in absence of the cross examination of the doctor with respect to the nature of injuries inflicted upon the injured persons. Further, in order to, substantiate either corroboration or the contradiction in the statement of the witnesses examined on behalf of the prosecution, the Doctor and I.O. must have been examined but, since neither the I.O. nor the doctor has been examined and therefore, it could not be determined as to whether the injury caused upon the injured persons by lathi or by tangi and as such the prosecution hopelessly failed to substantiate the offence under section 324 of the IPC. 12. P.W. 4- Manoj Swarnkar was the injured during the course of the quarrel between both the parties. P.W. 4 Manoj Swarnkar categorically stated that it was the appellant Krishna Sonar who had inflicted upon his head by tangi by which he was injured. In para 8 of the cross examination he had stated that he had become senseless after sustaining injury and he had sustained two injuries upon the head and Krishna (appellant) and Shankar (since dead) had assaulted him. Thus, the fact remain to take into consideration that both the injured P.W. 1 and P.W. 4 consistently supported the version of the prosecution that both of them had sustained injuries which were said to have been inflicted by this appellant and Shankar Sonar (since deceased). 13. In view of the evaluation of the testimonies of the witnesses examined on behalf of both the parties it is established that even if the doctor has not been examined nor the I.O. has been examined, but, the testimonies of P.W. 1 and P.W. 4 supported by P.W. 2 and P.W. 3, has substantiated that the injuries were inflicted upon the injured persons i.e. P.W. 1 and P.W. 4. It is well settled principles of law that the non-examination of the I.O. does not per-se cause prejudice to the defence of the accused persons. It is well settled principles of law that the non-examination of the I.O. does not per-se cause prejudice to the defence of the accused persons. In the present case, it is found that even if the doctor and I.O. have not been examined nor the injury report has been brought on record but the case of the prosecution has been substantiated uniformly and consistently by P.W. 1 and P.W. 4 and supported by the P.W. 2 and P.W. 3 to the extent that the appellant Krishna Sonar had inflicted injuries upon the injured persons but so for as nature of injury is concerned, the learned trial court has committed gross error in appreciating the nature of injuries as to whether it was caused by using of dangerous weapon or means or not, for want of the injury report and examination of the I.O. and doctor. Therefore, this Court does not found guilt of the accused appellant u/s 324 of IPC rather this Court found him guilty for the offence punishable u/s 323 of IPC. The defence has also examined one oral witness D.W. 1 Girdhari Lal Sonar in order to take the defence that no such occurrence has taken place. But, it does not help much to the defence of the appellant in view of the categorical and explicit depositions of P.W. 1 and P.W. 4 corroborated by P.W. 2 and P.W. 3. Accordingly, this appellant Krishna Sonar is found guilty for the offence u/s 323 of IPC. 14. In the result the judgment of conviction and order of sentence dated 13.10.2006 passed against the appellant Krishna Sonar by the learned Additional Sessions Judge, F.T.C., Koderma, in Sessions Trial No. 515 of 2001, in connection with Chauparan P.S. Case No. 44 of 1999, corresponding to G.R. Case No. 206 of 1999 at Koderma, Jharkhand is set aside and the judgment of conviction passed against the appellant is altered from for the offence punishable u/s 324 to the offence punishable u/s 323 of IPC. Consequently, this Court holds the conviction of the appellant Krishna Sonar for the offence punishable u/s 323 of IPC by setting aside the judgment of conviction and order of sentence passed against the appellant Krishna Sonar. 15. Consequently, this Court holds the conviction of the appellant Krishna Sonar for the offence punishable u/s 323 of IPC by setting aside the judgment of conviction and order of sentence passed against the appellant Krishna Sonar. 15. So far as the sentence is concerned, it has been pointed out that both the parties are admittedly gotias and the appellant is the cousin of the injured P.W. 1 and there is nothing on record to show about the criminal history of appellant Krishna Sonar and further it is also found that this incident has taken place in the year 1999 and as such he has been suffering from the trauma and misery of criminal prosecution from a long period of time of 23 years and over a period of time, this appellant Krishna Sonar has also reached to his middle age and, therefore, due to these mitigating circumstances a lenient view is taken in awarding the sentence after finding him guilty u/s 323 of IPC and, therefore, it is found that no useful purpose would be served for sending the appellant again in jail and, therefore, this Court awards the sentence of imprisonment to the appellant Krishna Sonar already undergone by him and further imposes upon him a sentence of fine to a sum Rs.1000.00 (Rupees One Thousand Only) by way of compensation in order to give it to the injured P.W.1- Sita Ram Sonar and P.W. 4 Manoj Swarnkar. Since, the appellant Krishna Sonar is on bail and, therefore, a period of four months’ time is given to him from today to make payment of fine of Rs. 1000/-(Rs. One Thousand Only) by way of compensation in order to give it to the victim-injured PW-1 and P.W. 4. 16. In case of the default of payment of fine amount of Rs. 1000/- (Rs. One Thousand Only) by way compensation in order to give it to victim-injured P.W. 1- Sita Ram Sonar and P.W. 4 Manoj Swarnkar so awarded by this Court within the stipulated period of time, the appellant shall undergo rigorous imprisonment for a period of Six months. In case of the default of payment of fine amount of Rs. 1000/- (Rs. One Thousand Only) by way compensation in order to give it to victim-injured P.W. 1- Sita Ram Sonar and P.W. 4 Manoj Swarnkar so awarded by this Court within the stipulated period of time, the appellant shall undergo rigorous imprisonment for a period of Six months. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, he will serve the sentence as awarded in case of default of payment of fine so awarded by taking all necessary measures as per the provisions of law to ensure that the appellant serves the sentence of imprisonment in case of default of payment of fine. 17. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim injured P.W.1- Sita Ram Sonar and P.W. 4- Manoj Swarnkar and on their appearance the said fine amount, if so deposited by the appellant, shall be disbursed to them. In case, if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim-injured P.W.1- Sita Ram Sonar and P.W. 4 Manoj Swarnkar, as the concerned learned trial court may deem fit and proper. 18. Accordingly, the appeal is dismissed as above. 19. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in this regard.