Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 170 (JHR)

Katki Harizan v. State of Jharkhand

2022-02-14

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the judgment of conviction and order of sentence dated 23.04.2004 passed by the learned 4th Addl. District & Sessions Judge, Fast Track, Court No. 1, Godda in Sessions Case No. 36 of 2003 whereby the three appellants have been acquitted for the offence punishable u/s 307 of IPC and convicted for the offence punishable u/s 341/324 of IPC and it was further ordered to undergo S.I. for one month for the offence u/s 341 of IPC and Rigorous Imprisonment for 3 years for the offence punishable u/s 324 of IPC and both the sentences were directed to run concurrently. It appears from the record that during the pendency of this appeal two appellants appellant no. 1 namely Ganpat Harizan and the appellant no. 2 Sonu Harizan passed away and vide order dated 20.11.2021, the appeal in hand got abated with respect to both the deceased appellants and as such with respect to only the surviving appellant Katki Harizan, the appeal is heard and disposed of. 2. The prosecution story arose in the wake of fardbeyan of one Puran Harijan- P.W. 2, whose statement was recorded by Godda Police namely S. Sharma, S.I., on 20.07.1986 at 13.00 hours at P.S. which is as under: The informant stated that on 20.07.1986 (Sunday) his co-villagers including this appellant Katki Harizan and other accused persons were constructing the house by laying the foundation work upon which this informant interfered and claimed the land upon which the construction work was going on, the dispute arose and co-accused Ganpat Harizan ordered to kill the informant. Thereupon, the other accused persons assaulted by the weapons and this appellant Katki Harizan is also alleged to have assaulted by sabal (a heavy iron rod) upon the back of the informant by which he fell down and sustained injuries and the other accused-appellants had also assaulted the informant including the deceased appellant Ganpat Harizan, Sonu Harizan and Shyam Sunder Harizan by Bhala, Khanti and lathi respectively. It has further been disclosed in the fardbeyan that several co-villagers reached there on raising hulla including the Subhash Harizan, Sahdeo Harizan, Sanichar Harizan P.W. 1 and saw the occurrence. 3. It has further been disclosed in the fardbeyan that several co-villagers reached there on raising hulla including the Subhash Harizan, Sahdeo Harizan, Sanichar Harizan P.W. 1 and saw the occurrence. 3. On the basis of the aforesaid fardbeyan recorded by the Godda police, a formal FIR was instituted vide Godda (M) P.S. Case No. 116 of 1986 corresponding to G.R. No. 452 of 1986 registered u/s 324, 341, 323, 307 of the IPC against the four accused persons including this appellant Katki Harizan as one of them and the investigation of the case commenced and after completion of the investigation the charge sheet was submitted. The case was committed to the Court of Sessions. The charges were framed against three accused persons including this appellant Katki Harizan, as one of them, for the offence punishable u/s 341/324/307/34 of IPC as one of the co-accused died during the pending of the trial. 4. The learned court below after concluding the trial had found the three accused persons guilty for the offence punishable u/s 341/324 of IPC and accordingly, they were convicted and sentenced by the impugned judgment of conviction and order of sentence which is under challenge. It has further been pointed out that out of three appellants, two appellants appellant nos. 1 & 2 had died during the pending of the appeal and the appeal got abated with respect to these appellants. 5. Heard Mr. Pankaj Kumar, learned Amicus Curiae, learned counsel for the appellants and Mr. Tarun Kumar, learned A.P.P. for the State. Arguments on behalf of the appellant 6. Assailing the impugned judgment of conviction and order of sentence, the learned defense counsel submitted that the impugned judgment of conviction and order of sentence is bad in law as well as on the fact that the I.O. of this case has not been examined and nonexamination of the I.O. caused serious prejudice to the accused-appellant as in the cross examination, the attention of the witnesses had been drawn with their earlier statement, but, they did not get the opportunity to cross examine the I.O. and, therefore, the effective cross examination of the witnesses could not take place and they have been debarred from their valuable right to bring the contradictions or inconsistency in their previous statement and the statement recorded during the course of trial. It has also been pointed out that P.W. 1 was not examined by the police as he himself has stated in para 6 of his deposition and thus, the serious prejudice has caused to the defense. The learned trial court has brushed aside the latches of the prosecution of non- examination of I.O. by stating that it is a minor contradiction without proper application of judicial mind. It has further been stated that the prosecution has been able to examine only 3 witnesses and none of the independent witness has been examined and the doctor P.W. 3 is also not effectively cross examined by the defense because of the non-availability of the X-ray plate on the basis of which the doctor should have opined about the nature of injuries, but, the prosecution failed in this regard and as such the said evidence of the doctor remained uncorroborated and, therefore, the case of the prosecution could not be substantiated. It has also been pointed out about the vital contradictions in fardbeyan wherein the P.W. 2 has stated that he became unconscious after being assaulted for two days and his statement was recorded after two days of the occurrence at hospital, but, from the fardbeyan it is found that his statement was recorded by the police in the police station on the same day and, therefore, there was no question of recoding fardbeyan because his statement has been recorded in the police station which is evident form the opening line of the fardbeyan. Further, it has also been pointed out by the learned defense counsel that there was a case and counter case between the parties and this has not been taken into account by the learned trial court while passing the impugned judgment of conviction and order of sentence and in this view of the matter, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the State 7. Arguments on behalf of the State 7. On the other hand, learned APP for the State submitted that the prosecution case has been consistently and uniformly supported by the victim P.W. 2 Puran Harizan and by the eye witness P.W. 1 Shanichar Harizan and the conviction has been held by the learned court below for the offence punishable u/s 341 & 324 of IPC and, therefore, even if the I.O. has not been examined, the case of the prosecution has been supported by the victim P.W. 2 and P.W. 1. It does not fall in the category of causing prejudice for the purpose of holding the guilt of the accused persons u/s. 341 and 324 of IPC and, therefore, the contentions raised on behalf of the appellant is not tenable in the eyes of law. Further, it has been pointed out that the learned court below has rightly appreciated the depositions of the doctor P.W. 3 vis-a-vis the statement of the victim P.W. 2 and the eye witness P.W. 1 and held the appellants guilty for the offence punishable u/s 341 and 324 of IPC and passed the impugned judgment of conviction and order of sentence and hence the appeal is fit to be dismissed being devoid of merit. APPRAISAL & FINDINGS 8. Having heard the learned counsel for the parties, perused the entire material available on record including the lower court record. As per the prosecution story, the appellant along with the other accused persons were said to have been constructing the house by laying the brick work of foundation upon which the informant Puran Harizan had objected by saying that to construct the house on their own land upon which the accused persons including this appellant had attacked upon the informant and assaulted him by sabal along with the other accused persons who had assaulted him by bhala, khanti and lathi upon which the informant P.W. 2 had sustained injuries. 9. In support of this allegation P.W. 1 Sanichar Harizan has been examined who is said to be the eye witness and in the examination-inchief he categorically stated that the Katki Harizan had assaulted by sabal which is falling in line with the specific allegations made in the FIR and thus, he has corroborated the case of the prosecution. 9. In support of this allegation P.W. 1 Sanichar Harizan has been examined who is said to be the eye witness and in the examination-inchief he categorically stated that the Katki Harizan had assaulted by sabal which is falling in line with the specific allegations made in the FIR and thus, he has corroborated the case of the prosecution. In the cross examination although he has stated that his statement was not recorded by the police but his name has appeared in the contents of the FIR and also he appears to have signed on the fardbeyan also. He accepted truthfully that a counter case was instituted but he did not know whether he is accused in that case or not vide Case No. 80/86 10. P.W. 2 Puran Harizan has proved his signature on his Fardbeyan which has been marked as Ext-1. It has also been corroborated by the injured P.W. 2 in his deposition that a counter case has been instituted by the accused persons also and, therefore, the fact that there was a case and counter case cannot be denied. P.W. 2 has squarely corroborated his case as alleged in the FIR by stating that the accused appellant Katki Hzarizan has assaulted him by sabal by which he sustained injuries and this has been corroborated by Exts. 2 & 2/1 which are the injuries report prepared by doctor P.W. 3 – Dr. Bijay Kumar Bhagat who has been examined and he had clearly supported the case of the prosecution and found the following injuries upon the injured victim- Puran Harizan which are as under: (i) Incised wound 1”x1/2”x 1/2" obliquely on the upper part of his left pinna of ear cutting the cartilage. (ii) Bruise laceration 1 ½"x1” obliquely on the back of right chest midway and over a large swelling. (iii) Bruise 6”x1/2”obliquely on the outer lateral aspect of right arm over a swelling. (iv) Bruise laceration 1”x½” obliquely on the interior part of left chest upper part laterally. (v) Incised wound 1 ½”x ½"x½ ” vertical on the back of left forearm upper part. He deposed that the injury no. 2 appeared to be grievous in nature. From the perusal of injury reports vide Exts. 2 and 2/1 it is found that one of the injuries that injury no. 2 was proved to be grievous in nature as found by this doctor. 11. He deposed that the injury no. 2 appeared to be grievous in nature. From the perusal of injury reports vide Exts. 2 and 2/1 it is found that one of the injuries that injury no. 2 was proved to be grievous in nature as found by this doctor. 11. In view of the aforesaid testimonies of the witnesses examined on behalf of the prosecution including P.W. 1, P.W. 2 and P.W. 3 it is well established that learned court has rightly appreciated their testimonies and came to the findings that the accused appellant Katki Harizan has been held guilty for the offence punishable u/s 341 & 324 of IPC and this Court having gone through the testimonies of the witnesses did not find any illegality in the appreciation of the evidence by the learned trial court. The plea of defence taken on behalf of the appellant that the genesis of dispute is the dispute of landed properties and it is contended on behalf of the appellant that it is belonging to the appellant and in support of the contention the defence has brought into evidence the documentary proofs of the land in their support vide Ext. A & Ext. B. Nevertheless, the facts remain to take into consideration that the appellant along with other co-accused persons had assaulted the victim Puran Harizan P.W.2 and it gets established from the testimonies of the witnesses as evaluated in the foregoing paragraphs that this appellant had inflicted injuries upon the injured P.W.2 by sabal and, therefore, this Court upholds the guilt of the accused-appellant for the offences punishable u/s 341 & 324 of IPC and hence, the judgment of conviction passed against this accused appellant for the offences punishable u/s 341 & 324 of IPC is hereby sustained. 12. 12. Having held the conviction of the accused appellant Katki Harizan for the offence punishable u/s 341 & 324 of IPC it is found that the sole accused appellant Katki Harizan was about 50 years at the time of the trial and now he is about 70 years and the learned defense counsel has pointed out that during the pendency of the case three of the co-accused persons Ganpat Harizan, Sonu Harizan and Shyam Sunder Harizan have died including one Shyam Sunder Harizan at the trial and two namely Ganpat Harizan and Sonu Harizan at the appellate stage and only this accused appellant Katki Harizan is alive and taking into consideration that there is a case and counter case between the parties and also the miseries and harassment suffered by the appellant for a long period of time in this criminal proceeding which is very old, therefore a lenient view should be taken. It is found true from the record that the incident had taken place on 20.07.1986 about 35 years ago and this accused appellant has been suffering trauma and hardship of the criminal proceeding for a long period of time and at present his age is about 70 years and further there is nothing on record to indicate about his criminal history. It is also found from the record that he has already remained in jail in this case and, therefore, it is not just and fair to send the appellant again in jail and a lenient view is taken in this regard and accordingly, the accused appellant was awarded the sentence of imprisonment for a term of the period already undergone by this appellant. Since, the accused-appellant Katki Harizan is on bail and he is discharged from the liabilities of bail bonds. 13. In this view of the matter, this appeal is dismissed as above. 14. Let a copy of the order be sent to the learned court below along with the LCR.