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2022 DIGILAW 1325 (JHR)

Sunil Marandi v. State of Jharkhand

2022-11-23

NAVNEET KUMAR

body2022
JUDGMENT : NAVNEET KUMAR, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 19.02.2007 passed by learned Sessions Judge, Pakur in Sessions Case No. 165 of 2004 in connection with Pakuria P.S. Case No. 25 of 2004, corresponding to G.R. No. 329 of 2004, Pakur, Jharkhand, whereby and where under the sole appellant has been found guilty and convicted for the offence punishable under section 307 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) and has been sentenced to undergo rigorous imprisonment (hereinafter referred to as the RI) for a period of 5(five) years and also to pay fine to a sum of Rs. 2,000/- (Rupees two thousand only) and in default of payment of fine he was further directed to undergo RI for a period of one year. 2. The prosecution story arose in the wake of fardbeyan of Rajen Murmu S/o Josey Murmu of village Bichpahari P.S. Pakuria, Distt. Pakur recorded by B. Tiwari ASI of Pakuria P.S. on 21.08.2004 at about 19.30 p.m. at Primary Health Center Pakuria. Informant Rajen Murmu (PW-9) disclosed in the said fardbeyan as under: On 21.08.2004 at about 12.00 noon the informant Rajen Murmu (PW-9) along with his wife were plucking Maize from their own land where other vegetable plants were still lying in the said land. It was alleged that the accused along with two to three unknown cowherds were trying to get their she buffaloes entered into the field for the purpose of grazing. It was further alleged that the informant made a protest upon which the accused asked him not to obstruct him otherwise he would chop off his neck and simultaneously gave a Hansua (sharp edged weapon) blow on his neck with intent to kill him, as a result of which blood started oozing from the left side of the neck. It was further alleged that the wife of the informant raised alarm upon which the accused and the unknown cowherds fled away with their cattle seeing the arrival of the villagers. It was further stated that the villagers took the injured to Primary Health Centre, Pakuria where the Fardbeyan Exhitbit-2 of the informant was recorded on the basis of which the formal FIR Ext.3 was drawn. 3. It was further stated that the villagers took the injured to Primary Health Centre, Pakuria where the Fardbeyan Exhitbit-2 of the informant was recorded on the basis of which the formal FIR Ext.3 was drawn. 3. On the basis of fardbeyan of the informant Pakuria P.S. Case was registered vide Pakuria P.S. Case No. 25/2004, under section 324,307/34 of IPC and after the investigation charge sheet was submitted vide Charge Sheet No. 24/2004 dated 30.09.2004 under section324 and 307/34 of IPC. Cognizance of the offence was taken and the case was committed to the court of Sessions. The learned Sessions Judge, Pakur had framed charge on 10th May 2005 under section 307 of IPC. 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. 4. Heard Mr. Uday Choudhary, the learned counsel for the appellant and Mr. V.S. Sahay, the learned Addl. P.P. for the State. Arguments advanced on behalf of the appellant 5. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the sole appellant submitted that the learned trial court did not appreciate the injury alleged to have been inflicted upon the informant PW-9 and passed the impugned judgment of conviction for the offence punishable u/s 307 of IPC which is not made out at all as evident from the injury report in the light of the version of the injured eye witness PW-9 also. It has further been pointed out that there are contradictions in the statements of informant PW-9 who has stated in the fardbeyan that the appellant had given a Hansua (sharp edged weapon) blow on his neck but it was evident from Para 1 of his examination-in-chief that the Hansua blow was given on his head and as such statement of PW-9 is not reliable. Further, it has also been pointed out that although the I.O. the PW-11 had stated in his deposition that blood was found at the place of occurrence but neither the blood stained earth soil was collected nor it was produced before the court as a material exhibit. Therefore, the statement of the I.O. was not corroborated. Further, it has also been pointed out that although the I.O. the PW-11 had stated in his deposition that blood was found at the place of occurrence but neither the blood stained earth soil was collected nor it was produced before the court as a material exhibit. Therefore, the statement of the I.O. was not corroborated. Further, it has been pointed out that all the witnesses examined on behalf of the prosecution are partisan and related witnesses and no independent witness has been examined on behalf of the prosecution and as such the learned court below failed in appreciation of the testimonies of the witnesses despite the material variations particularly the place of the injury upon the injured PW-9 and non-seizure of blood stained soil and blood stained cloths are fatal to the prosecution case and therefore it is urged on behalf of the appellant that 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 6. On the other hand, the learned Addl. P.P. appearing for the State opposed the contentions raised on behalf of the appellant and stated that even if the PW-9 who is the injured eye witness stated in his deposition during the course of the trial that the injury was inflicted on the head, not on the neck as stated in the FIR, it did not cause any prejudice to the case of the prosecution in view of the facts that the injured PW-9 sustained injury inflicted by the appellant which is supported by the Ext.1 which is medical examination report of the injured PW-9 and was duly proved by the doctor PW-10. Further it has been pointed out by the learned Addl. Further it has been pointed out by the learned Addl. P.P. that it is settled principles of law that the depositions of the witnesses cannot be discarded per-se because they are related with interested witnesses unless their deposition are not reliable and trustworthy due to inconsistencies or contradictions or otherwise but in the present case just after the commission of the offence other witnesses had arrived at the place of occurrence after hearing the hulla from the place of occurrence and they have uniformly and consistently supported the versions of the informant PW-9, therefore, there was no legal point and evidence to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 7. Having heard the parties, perused the record of this case including the Lower Court Records. 8. In order to substantiate its case, the prosecution has been able to examine altogether 11 witnesses who are as under: 1. PW-1 Jangal Tudu 2. PW-2 Pole Murmu 3. PW-3 Sunil Kumar Tudu 4. PW-4 Noren Marandi 5. PW-5 Keshobati Tudu 6. PW-6 Naresh Hembrom 7. PW-7 Anil Tudu 8. PW-8 Binod Hembrom 9. PW-9 Rajen Murmu (Informant) 10. PW-10 Dr. Subrata Kumar, the Medical Officer 11. PW-11 Bhagirath Tiwari, the I.O. Apart from oral evidences some documentary evidences have also been adduced on behalf of prosecution which are/Ext.1-injury report, Ext.2-fardbeyan, Ext.3-formal FIR. 9. PW-1 Jangal Tudu, supported the case of the prosecution and stated that on hearing the alarm raised by the wife of the informant Keshobati Tudu he reached to the place of occurrence and found that there was injury on the head of the informant and the accused persons running away from the place of occurrence, in the cross examination he has stated that the accused had given a Hansua blow. 10. PW-2 Pole Murmu, PW-3 Sunil Kumar Tudu and PW-4 Noren Marandi, who reached to the place of occurrence after hearing hulla or the alarm raised by the informant and his wife and found that the blood was oozing out from the head of the informant and the accused-appellant was running away from the place of occurrence by holding Hansua in their hand. In the cross examination conducted on behalf of the defence no material particular has come out to disbelieve the version of these witnesses as nothing has come out from their versions in the cross examination to disbelieve their versions which are falling in line of the statements of the injured PW-9 as stated in fardbeyan. 11. PW-5 Keshobati Tudu, is the wife of the informant and she has fully supported the case of the prosecution and the names of the witnesses, who have been examined on behalf of the prosecution as their names have been disclosed by this witness PW-5 in her statement as contained in her examination-in-chief vide Para-3. She categorically stated that at the time of the occurrence her husband PW-9 got injured and she herself was present at the place of occurrence and son of her sister was also there. 12. PW-6 Naresh Hembrom, has also been examined on behalf of the prosecution and has clearly stated that he had also accompanied his elder mother PW-5 and elder father PW-9 to pluck the maize and the appellant Sunil had inflicted injury by Hansua upon his elder father near the left side of his ear. Learned trial court has rightly appreciated the version of the aforesaid witnesses who supported the case of the prospection to the extent that the appellant had inflicted injury upon the PW-9. 13. PW-7 Anil Tudu and PW-8 Binod Hembrom both reached at the place of occurrence after hearing the alarm raised by the informant and these two witnesses had also seen the accused appellant who ran away from the place of occurrence after inflicting the injury on PW-9. 14. PW-9 Rajen Murmu is the informant of this case and he has fully supported the case of the prosecution as set out in the fardbeyan. In Para 4 this witness has stated that the accused had entered his buffalos in his field and at the time of the incident, the plucked maize was being packed in the bullock cart. In Para 5 he stated that he did not faint from the injury but had fallen on the ground and could not get up. In Para 4 this witness has stated that the accused had entered his buffalos in his field and at the time of the incident, the plucked maize was being packed in the bullock cart. In Para 5 he stated that he did not faint from the injury but had fallen on the ground and could not get up. Nothing has come out from the mouth of this witness in the cross-examination conducted on behalf of the accused appellant to disbelieve the version of this witness that the appellant had inflicted injury upon him on a trivial issue arising in the wake of the protest of the informant when the appellant wilfully and intentionally started grazing his buffalos into the field of informant. In order to appreciate the intention and knowledge of the accused appellant to constitute the offence u/s 307 of IPC it is necessary to appreciate the manner, mode and nature of the injury along with other factors including the opportunity of causing injury to cause murder of the injured PW-9 in order to appreciate the offence of attempt to murder. 15. PW-10 Mr. Subrata Kumar, the Medical Officer examined on behalf of the prosecution stated that on 21.08.2004 he was posted at Pakuria, Primary Health Centre and on the same day he had examined Rajen Murmu PW-9 and found the following injuries after examining the injured PW-9: (i) Sharp clean cut incised wound length 5” width. 1 mm depth superficial. (ii) Extension - below the left lower surface of posterior masterioed process up to the level of C/5 vertebri. (iii) Location - left side of the neck (iv) Opinion - injury produced by having sharp cutting edge. (v) Nature of injury - simple in nature. The injury report is made in his pen and signature and marked As Ext.I. In the cross examination this witness PW-10 categorically stated that the injuries were caused by sharp and pointed weapon and there was no injury on any part of the body except the injury on the neck. In this view of the matter the injury report which has been marked as Ext.1 has corroborated the versions of the witnesses who have been examined on behalf of the prosecution particularly the injured witness PW-9 who categorically stated in his fardbeyan that the appellant has inflicted injury in his neck. In this view of the matter the injury report which has been marked as Ext.1 has corroborated the versions of the witnesses who have been examined on behalf of the prosecution particularly the injured witness PW-9 who categorically stated in his fardbeyan that the appellant has inflicted injury in his neck. So far as the defence taken on behalf of the appellant that in his deposition before the court PW-9 stated that injury was inflicted upon left side of his head is concerned, it appears from the perusal of Ext.1 and statement of PW-10 that the injury was inflicted upon the left side of the neck of PW-9. From the perusal of Ext.1 and the deposition of the doctor it is well founded that the injury has been found over and near the joint of the head neck and ear and therefore the witnesses described the location of injury either as ear or neck or head and hence it is well founded that the injury vis-a-vis the versions of the witnesses examined on behalf of the prosecution with respect to the location of the injury inflicted upon the injured PW-9 by the appellant does not have any inconsistency or contradiction to disbelieve the version of the prosecution that the appellant had inflicted injury upon the injured PW-9 by one blow of sharp cutting weapon and no discrepancy is found at all . However, it is found that there was only one injury which was simple in nature and therefore under the circumstances it is found that despite there being ample opportunity to inflict several injuries, the accused appellant inflicted only one injury and thereafter the appellant ran away. The intention and knowledge of committing murder is not substantiated under the circumstances of this case. Neither the weapon used had been produced in order to afford opportunity to the appellant to draw the attention of the doctor about alleged injury caused by which kind of weapon nor blood stained cloth nor earth soil have been produced by the prosecution to substantiate the case of the prosecution for the offence of committing attempt to murder. 16. Neither the weapon used had been produced in order to afford opportunity to the appellant to draw the attention of the doctor about alleged injury caused by which kind of weapon nor blood stained cloth nor earth soil have been produced by the prosecution to substantiate the case of the prosecution for the offence of committing attempt to murder. 16. PW-11 Bhagirath Tewary, the I.O. also examined in this case but neither the blood stained soil, blood stained cloth nor any weapon has been recovered or produced before the court below during the course of trial and therefore the offence punishable u/s 307 of IPC is not substantiated from the evidences adduced on behalf of the prosecution rather it is found a case u/s 324 of IPC. 17. It is well settled proposition of law that in order to sustain an offence under section 307 of the IPC the presence of intention or knowledge must be such as is necessary to constitute murder. Without this there can be no offence under section 307 of the IPC. Unless the prosecution proves the ingredients of section 300 of IPC there can be no conviction under section 307 of IPC. In the present case the acts of the appellant is seemingly not sufficient to substantiate their intention or knowledge to commit murder as evident from the relevant facts including the manner and mode of causing injuries irrespective of the result. In this case it is found that there was only one injury which was simple in nature and therefore under the circumstances it is found that despite of ample opportunity to inflict several injuries the accused appellant inflicted only one injury which is simple in nature. The intention and knowledge of committing murder is not substantiated under the circumstances of this case. 18. The learned trial court has committed error after holding the guilt of the accused appellant u/s 307 of IPC, as a consequence, this Court set aside the impugned judgment of conviction and order of sentence dated 19.02.2007 passed by learned Sessions Judge, Pakur in Sessions Case No. 165 of 2004 in connection with Pakuria P.S. Case No. 25 of 2004, corresponding to G.R. No. 329 of 2004, Pakur, Jharkhand against the appellant under section 307 of IPC and alters conviction for the offence punishable u/s 324 of IPC from u/s 307 of IPC. 19. 19. So far as the sentence to be imposed under section 324 of IPC is concerned, it is submitted by the learned defence counsel appearing for the appellant that it is a case of the year 2004 and the appellant has already remained in jail for a substantive period of time and in this view of the matter over a period of time the accused has reached to his middle age about 41 years and therefore a lenient view may be taken in awarding the sentence, considering these mitigating factors. 20. In the backdrop, it is found that the sole appellant i.e. Sunil Marandi has reached to his middle age over a period of time and he is now about 41 years of age and there is nothing on record to show his criminal history and the criminal proceeding has been pending against the appellant for a long period of time since 2004, thereby causing miseries and hardships to the appellant mentally, socially and physically and, therefore, in view of these mitigating factors, no useful purpose would be served to send the appellant again in jail and hence in this view of the matter the ends of justice would be meted out if the appellant is sentenced to imprisonment for a term of the period already undergone by him and further the appellant was sentenced to a fine of Rs. 5,000/- (Rupees five Thousands only) by way of compensation in order to give it to the injured-informant PW-9 Rajen Murmu. 21. Consequently, the appellant is sentenced to the imprisonment for a term of the period already undergone by him and he is further sentenced to pay fine by way of compensation to a sum of Rs. 5,000/- (Rupees Five Thousands only) for the offence punishable under section 324 of I.P.C. in order to give it to the informant victim PW-9 Rajen Murmu. 22. Since the appellant is on bail, he is given four months’ time from the date of this judgment to deposit the fine amount by way of compensation to a sum of Rs. 5,000/- (Rupees Five Thousands only) as awarded to him to be given to injured victim PW-9 Rajen Murmu. 23. In case of default of payment of fine amount of Rs. 5,000/- (Rupees Five Thousands only) as awarded to him to be given to injured victim PW-9 Rajen Murmu. 23. In case of default of payment of fine amount of Rs. 5,000/- (Rupees Five Thousands only) by way compensation in order to give it to the PW-9 Rajen Murmu so awarded by this Court within the stipulated period of time, the appellant will undergo rigorous imprisonment for a period of 02 (Two) years. The learned trial court is directed to ensure that if the said fine amount is deposited within the stipulated period of time, he will be discharged from the liabilities of bail bonds and if the same is not deposited by the appellant within the stipulated period of time, the appellant will serve the sentence in case of default of payment of fine so awarded, and the learned trial court, by taking all necessary measures as per the provisions of law, shall ensure that appellant would serve the sentence of imprisonment in case of default of payment of fine. 24. 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 will be sent to the informant PW-9 Rajen Murmu and on his appearance, the said fine amount, if so deposited by the appellant, shall be disbursed to him accordingly. In case, if the victim informant Rajen Murmu (PW-9) is not traceable or not available or not found at the given address or does not appear before the court below after the notice, the same shall be disbursed either to the close or near relatives or kith and kin of the said victim, as the concerned learned trial court may deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Pakur, if required. 25. Accordingly, the appeal is partly allowed as above. 26. 25. Accordingly, the appeal is partly allowed as above. 26. Let a 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 letter and spirit.