Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 146 (JHR)

Indrasen Pansari v. State of Jharkhand

2022-02-08

NAVNEET KUMAR

body2022
JUDGMENT : Navneet Kumar, J. 1. The instant appeal is directed against the judgment of conviction and order of sentence dated 11.09.2003 passed by the Additional Sessions Judge, IX-Dhanbad in Sessions Trial No. 262 of 2001 corresponding to Jharia P.S. Case No. 289 of 1999 and G.R. No. 2939 of 1999 whereby and whereunder, the appellant no. 1 Indrasen Pansari has been convicted u/s 324 of IPC and sentenced to undergo R.I. for one year and pay a fine of Rs. 3000/- and the appellant no. 2 – Ghanshyam Garg has been convicted u/s 323 of IPC and sentenced to undergo R.I. for six months and a fine of Rs. 1000/-. 2. Briefly stating the prosecution story arose in the wake of the fardbeyan of Dilip Kr. Verma (P.W. 4) whose statement was recorded at Gariwan Patti (Bhaga) by S.I. Anant Ranjan of Jharia P.S. at about 17 hours. P.S. Jharia, District Dhanbad on 21.09.1999 is as under:- The informant Dilip Kr. Verma stated that he was a motia majdoor (labour) was loading goods on the Thela (Push-cart) when the accused appellant no. 1-Indrasen Pansari asked him not to load the goods on his cart, thereafter there was an altercation between the informant and the accused appellants on which the accused appellant no. 2 Ghanshyam Garg started abusing the informant and also assaulted him. It has further been alleged that the accused Indrasen Pansari went inside his shop and came out with a heavy measuring tool with heavy base with an intention to commit the murder of the informant and assaulted him by which the informant sustained injuries below his left eye. It was also alleged by the informant that the accused persons had taken away Rs.155/- from the pocket of the informant and his wrist watch. 3. On the basis of the aforesaid fardbeyan, a formal FIR was instituted vide Jharia P.S. Case No. 289 of 1999 dated 21.09.1999 for the offences punishable u/s 341, 342, 323, 324, 307, 379, 506, 34 of IPC. After completion of the investigation charge sheet was submitted and cognizance was taken. 3. On the basis of the aforesaid fardbeyan, a formal FIR was instituted vide Jharia P.S. Case No. 289 of 1999 dated 21.09.1999 for the offences punishable u/s 341, 342, 323, 324, 307, 379, 506, 34 of IPC. After completion of the investigation charge sheet was submitted and cognizance was taken. The case was committed to the Court of Sessions and the charge was framed by the learned trial court against the accused appellants on 01.03.2002 for the offence punishable u/s 307 & 324 of IPC read with section 34 of IPC whereby the accused appellants did not plead guilty and claimed to be tried. After completion of the trial, the learned trial court has passed the impugned judgment of conviction and order of sentence which is under challenge. 4. Heard Mr. P.K. Deomani, learned Amicus Curiae appearing for the appellants and Mr. P.K. Appu, learned A.P.P. for the State. Arguments on behalf of the appellants 5. Assailing the judgment of conviction and order of sentence, the learned counsel for the appellants submitted that the learned court below has failed to appreciate the evidence led by the witnesses in this case in view of the fact that some of the witnesses including the informant stated that he was assaulted by the four persons as alleged in the FIR and further none of the witnesses has deposed about the appellants taking away a sum of Rs. 155/- and one wrist watch from the informant as alleged in the FIR and nor the learned trial court has convicted them u/s 379 of IPC and thus, the veracity and truthfulness of the deposition of the witnesses are doubtful. Further, it has been pointed out that P.W. 3, who is said to be the eye witness, and P.W. 4, who is the informant, and the injured himself both of them did not mention the name of the appellant no. 2 namely Ghanshyam Garg in their deposition that he participated in the purported assault. The rest of the witnesses are hearsay witnesses. Further, it has been pointed out that other witnesses P.W. 1 and P.W. 2 are the neighbours and residing in the same locality around the vicinity of the place of occurrence and all are interested witnesses. Further, P.W. 6 Dr. Naresh Prasad, who is the doctor, had examined the injured informant deposed that the injury no. Further, it has been pointed out that other witnesses P.W. 1 and P.W. 2 are the neighbours and residing in the same locality around the vicinity of the place of occurrence and all are interested witnesses. Further, P.W. 6 Dr. Naresh Prasad, who is the doctor, had examined the injured informant deposed that the injury no. 2 cannot be caused by heavy measuring and weighing tool as alleged in the FIR rather he had stated that the injury was caused by sharp cutting weapon and as such the testimony of P.W. 6, the doctor, did not corroborate the prosecutions story. It has also been contended by the learned defence counsel that the learned court below did not take into consideration the evidence of appellants adduced during the course of the trial by examining the D.W.1. Further, it has also been pointed out that the appellant no. 1 is very old person and at the time of recording of his statement u/s. 313 of Cr.P.C. his age was 60 years and this appeal is pending since about 19 years and, therefore, now he is around 80 years old and therefore, it is submitted that a lenient view be taken and this judgment of conviction and order of sentence be set aside. Arguments on behalf of the State 6. On the other hand, learned A.P.P. for the State opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the deposition of the witnesses and there are no flaws in the impugned judgment of conviction and order of sentence. The learned A.P.P. has pointed out that the eye witness and the injured P.W. 4 have consistently and uniformly supported the case of the prosecution and there is no major deviation from the contents of the FIR and other witnesses being hearsay witnesses also supported the case of prosecution and the doctor P.W 6 whose statement corroborated the injury as disclosed by the informant in the FIR and subsequently in his testimony before the Court and, therefore, there is no illegality in the impugned judgment of conviction and this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 7. Having heard the parties perused the record of the case. Appraisal & Findings 7. Having heard the parties perused the record of the case. The genesis of the case is that a dispute arose between the parties including the appellants and the informant for loading the goods in Thela Gari (Push-cart). P.W. 4 Dilip Kumar Verma is the informant of this case and in his examination in chief he stated that the appellant no. 1 Indrasen Pansari assaulted him by a heavy weight measuring tool by which he had sustained the injury below his left eye. It is also found in the depositions recorded by the learned court below during course of the trial that the injured informant had shown his left eye to the court below where there was a scratch below his left eye indicating that this scar was the result of injury inflicted by the appellant no. 1. In the examination in chief it is found that there was no whisper about the assault inflicted upon him by the appellant no. 2 Ghanshyam Garg and further nothing could be found and elicited by the defence to disbelief the version of this injured eye-witness P.W. 4 who is the informant injured person and he has flawlessly supported his version as disclosed in the FIR with respect to the charges levelled against the appellant no.1 and not against appellant no.2. He has also proved his signature in the fardbeyan which has been marked as Ext. 1. 8. P.W. 3 Kishori Ram is said to be the eye witness who was present at the time of the occurrence as stated by the victim-P.W.4 Dilip Kumar Verma (victim-informant) in para 9 and P.W.3 also immaculately supported the case of the prosecution by stating in his examination in chief that there was a dispute over loading of the goods upon the Thela (Push-cart) between the Dilip Kumar Verma (injured P.W. 4) and Indrasen Pansari the appellant no. 1 and subsequently the appellant no. 1 had assaulted the informant by weight measuring tool by which the injury was caused below the left eye of P.W. 4 and thus the version of the injured P.W. 4 have been uniformly supported by P.W. 3, who is also the eye witness. 1 and subsequently the appellant no. 1 had assaulted the informant by weight measuring tool by which the injury was caused below the left eye of P.W. 4 and thus the version of the injured P.W. 4 have been uniformly supported by P.W. 3, who is also the eye witness. This witness P.W.3 also did not depose that the appellant no.2 Ghanshyam Garg had also assaulted by fists and legs commensurate with the version of the injured P.W.4 who also did not utter a single word against the appellant no.2 Ghanshyam Garg in his examination-in-chief about the assault by fists and legs and thus the versions of P.W.1 and 2 have been negated by the victim P.W.4 and P.W.3 against the appellant no.2. Further, it is found that the injuries which are said to have been inflicted upon the injured P.W. 4 by appellant no.1 by measuring weight is supported by the P.W. 6 Dr. Naresh Prasad, who was examined on behalf of the prosecution as P.W. 6. He had proved the injury report alongwith his signature which is marked as Ext. 2 & Ext. 2/1 and he found the following injuries on the person of the informant P.W. 4: 1. Swelling and haemoetoma on left Zygomatic region. 2. Incised wound on the same place 1/2”x1/4”x1/4”. Injury no. (i) is caused by hard and blunt substance and injury no. (ii) is caused by sharp cutting weapon. 9. The Doctor P.W.6 has opined that the injuries are simple in nature. The learned trial court has rightly appreciated the opinion of the doctor vis-a-vis the nature and manner of inflicting injuries as stated by the victim P.W.4 and the eye witness P.W.3 and no discrepancies have been found in the injuries which are said to have been inflicted upon the injured P.W. 4 inasmuch as both have stated that the injuries were inflicted by appellant no. 1 with a heavy measuring/weighing tool which is said to be a hard and blunt substance and, therefore, since the doctor has opined about the injury no. 1 with a heavy measuring/weighing tool which is said to be a hard and blunt substance and, therefore, since the doctor has opined about the injury no. (ii) is caused by sharp cutting weapon it is found that the learned trial court has rightly appreciated his version about the injury no.2 in the impugned judgment and found that the injury might be caused by the weight measuring tool and Modi’s medical jurisprudence has also been referred in order to appreciate as to whether the weight measuring tools are of the nature of sharp cutting weapons or not and rightly and logically came to the conclusion that there is no discrepancy to discard the version of P.W. 4, the injured person. Further, it is found that the other witnesses P.W. 1 & 2 are the hearsay witnesses and they have supported the version of the prosecution with respect to appellant no.1. P.W. 5 has been declared hostile. P.W. 7 is the I.O. of this case who has proved the formal FIR which has been marked as Ext. 3 and the fardbeyan which has been marked as Ext. 1/1. He has also stated about the place of occurrence which has been examined by him and the witnesses whose statement were recorded and after completion of the investigation he had submitted the charge sheet. On the other hand, the defence has also examined one witness i.e. Shankar Lal Agarwal as D.W.1 and it appears from his depositions that defence wanted to take the plea of enmity as defence that one Ravi Agrawal was also a business man and running the shop of grocery along with the shop of the appellant no.1 Indrasen Pansari and there was a dispute between the appellant no.1 and Ravi Agrawal and that is why he has been falsely implicated in this case. But the plea of enmity does not help the defence as it is well settled law that enmity as usual is a double-edged weapon, providing motive both for the offence as well as for false implication. The evidence in such a case has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. The evidence in such a case has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. Therefore, the evidences cannot be discarded ipso facto on the ground of enmity when there are glaring evidences available as in the present case where having meticulously scrutinised & appreciated the entire evidences available on record it is found that the testimonies of victim P.W. 4 supported by another eye witness P.W.3 and the doctor P.W. 6 are falling in line with the version of the victim informant as set out in the FIR specifically pointing the guilt of the appellantno.1 as held by the learned trial court. 10. In the backdrop of detailed discussions, this Court finds that the learned trial court has committed an error in holding the guilt of the appellant no. 2, Ghanshyam Garg for the offence punishable u/s 323 of IPC because there is no evidence that the injury has been inflicted by fists and legs upon the P.W. 4 by appellant no. 2 and therefore, the conviction of the appellant no. 2 Ghanshyam Garg for the offence punishable u/s 323 of IPC is set aside and in result the judgment of conviction and order of sentence passed against this appellant is set aside and the appeal is allowed with respect to the appellant no. 2. 11. So far as the appellant no. 1 Indrasen Pansari is concerned, this Court does not find any illegality in the appreciation of the evidences and the learned trial court has rightly come to the conclusion by holding appellant no. 1 guilty for the offence punishable u/s 324 of IPC and therefore, this Court sustains and upholds the judgment of conviction for the offence punishable u/s 324 with respect to the appellant no. 1-Indrasen Pansari. 12. Learned defence counsel appearing for the appellant no. 1 submitted that he was 60 years old at the time of trial and now he is 80 years and he has already suffered the trauma and miseries of criminal proceedings for a long period of time since 1999 and, therefore, a lenient view may be taken in awarding the sentence. 13. I find force in the contention raised on behalf of the appellant no. 1 that the appellant no. 13. I find force in the contention raised on behalf of the appellant no. 1 that the appellant no. 1 has been suffering miseries of criminal proceedings since last 22 years and it is also found from the record that he has remained in jail for a short period and there is nothing on record about his criminal history, therefore, it is just and proper not to send him again in jail by way of awarding the sentence of imprisonment. Therefore, this Court takes a view that instead of awarding the sentence of imprisonment to the appellant, the appellant no. 1 is awarded a sentence of fine of Rs.3000/-(Rupees Three Thousand only) to pay by way of compensation to give to the informant Dilip Kumar Verma, resident of Bhaga Bazar, Station Road, P.S. Jharia, District Dhanbad (Jharkhand). Since the appellant no. 1 is on bail, he is given 3 months’ time to deposit the fine amount of Rs.3000/-(Rupees Three Thousands only) from the date of this judgment in order to make payment to the informant and in case of default of payment of fine by way of compensation he will undergo simple imprisonment for the period of 1 year. 14. The learned court below is directed to ensure that the payment of fine so deposited by the appellant no. 1 would be given to the informant by issuing proper notice and in case the payment of fine by way of compensation is not deposited the learned court below will take all necessary steps to ensure that the appellant no. 1 serves the sentence of simple Imprisonment of 1 year as awarded by this court. 15. As a consequence, this appeal is partly allowed as above. 16. Let the LCR be sent back to the concerned court with a copy of this judgment for its compliance forthwith.