Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 226 (JHR)

Arvind Ram v. State of Jharkhand

2022-02-24

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction dated 31.05.2004 and order of sentence dated 01.06.2004, passed by learned Additional Sessions judge, FTC-II, Palamau at Daltonganj, in connection with S.T. No.261 of 2003, arising out of Chainpur P.S. Case No.102 of 2002, corresponding to G.R. No.1321 of 2002, whereby and where under both the appellants Arvind Ram and Pradeep Ram were convicted for the offence punishable under sections 307/34 of I.P.C. and they were sentenced to undergo R.I. for five years with a fine of Rs.5,000/- to be paid by each of the appellants in order to give it to the victim Manoj Sao as compensation and in default of payment of fine, both the appellants were directed to serve the sentence of six months simple imprisonment. 2. The prosecution case arose in the wake of fardbayan of the informant Shiv Prasad Sao (PW - 4), recorded by A.S.I., R.K. Sharma of Town P.S. at Sadar Hospital at 16.00 hours on 17.10.2002 is that- On 17.10.2002 at about 1.30 PM, in the noon, Shiv Prasad Sao (the informant) and his son Manoj Sao were working in the field. The informant’s son went towards road, for giving accounts of the contributions collected (chanda) on the occasion of Durga Puja. Soon, thereafter, at about 1.45 P.M., the informant heard hulla and he saw towards road and found that accused Arvind Ram (Appellant no. 1), Pradip Ram (Appellant no. 2), Sudhir Ram and Dwarika Ram were assaulting his son with axe (tangi) and lathi. The prosecution case further reveals that Arvind Ram, Sudhir Ram were having axes in their hands and whereas, Pradip Ram and Dwarika Ram were having lathies. The informant along with other villagers reached at the place of occurrence and aforesaid accused persons ran away. The informant Shiv Prasad Sao with the help of villagers had taken his injured son (Manoj Sao) to Sadar hospital, Daltonganj and where his injured son was admitted. The fardbeyan recorded by Town Police Station was forwarded to Chainpur Police Station. 3. On the basis of the aforesaid fardbayan, a formal FIR was drawn by the Chainpur police vide Chainpur P.S. Case No.102 of 2002 dated 17.10.2002, registered under Sections u/s 342, 323, 324, 307/34 of IPC against four accused persons including these two appellants along with Dwarika Ram and Sudhir Ram and investigation of the case commenced. 3. On the basis of the aforesaid fardbayan, a formal FIR was drawn by the Chainpur police vide Chainpur P.S. Case No.102 of 2002 dated 17.10.2002, registered under Sections u/s 342, 323, 324, 307/34 of IPC against four accused persons including these two appellants along with Dwarika Ram and Sudhir Ram and investigation of the case commenced. After completion of the investigation, the charge-sheet was submitted only against these two appellants and rest of the two accused persons Dwarika Ram and Sudhir Ram were absolved from the charges and final report was submitted against the said two persons and charge sheet was submitted against these two appellants. After submission of the charge-sheet, the case was committed to the Court of Sessions and the charges were framed against these two appellants for offence punishable under Sections 307/34 of IPC and after conclusion of the trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge. 4. Heard learned defence counsel Gautam Kumar appearing on behalf of the appellants and learned A.P.P. Mrs. Sweta Singh appearing on behalf of the State. Arguments on behalf of the appellants 5. Learned counsel on behalf of the Appellants has submitted that the prosecution story of committing the offence of attempt to murder of the injured- victim PW – 5 Manoj Sao is concocted and against the facts on record and the learned trial court has grossly committed error in law as well as in appreciation of facts. The learned trial court has ignored the fact that there was no independent witness and it was admitted case of the prosecution that enmity was prevailing between them. The learned trial court has ignored the fact that there was no independent witness and it was admitted case of the prosecution that enmity was prevailing between them. The learned trial court also failed to consider that the I.O. in this case has not been examined and the accused appellants were debarred from their valuable right to bring the contradictions of the witnesses, who have been examined on behalf of the prosecution, and therefore serious prejudice was caused to them (Appellants) due to non-examination of the I.O. Neither the place of occurrence has been proved, nor the admitted facts of the prosecution that the injured PW – 5 had been caught by the police for collecting the chanda (donation) of Durga Puja unlawfully from the bus drivers and the passengers could be confronted with the I.O. As such, the learned trial court has committed error in not appreciating the evidences adduced 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 on behalf of the State 6. Learned counsel appearing on behalf of the State opposed the contentions raised on behalf of the appellants and submitted that there are consistent and uniform testimonies of PW-1, PW-4 and PW-5, by which the leaned trial court has rightly appreciated their depositions and came to the conclusion that the appellants have assaulted the injured PW – 5 Manoj Sao who had sustained the injuries which have been supported by the doctor Alok Kumar Mandal PW- 6 and there is no error or any irregularity in the impugned judgment of conviction and order of sentence and therefore this appeal is fit to be dismissed being devoid of merit. 7. Having heard learned counsel for parties, perused the entire materials on record including the lower court record. Appraisal & Findings 8. It is found that both the appellants were charged for committing the offence of attempt to murder the victim PW – 5 Manoj Sao, where the appellant No.1 Arvind Ram had assaulted him by tangi (axe) and appellant No.2 Pradip Ram had assaulted him by lathi as per the allegations set-out in the FIR, but neither the I.O. has been examined in this case, nor the weapons, alleged to have been used in the commission of offence, have been brought on record as material exhibits. The case of the prosecution is that the son of the informant Manoj Sao was collecting chanda on the occasion of Durga Puja, when four persons including these two appellants had assaulted the injured by tangi and lathi. Two other named persons Sudhir Ram and Dwarika Ram were exonerated from the charges during the course of investigation and final report was submitted against these two appellants and therefore the case of the prosecution as set-out in the FIR itself with respect to the involvement of the two persons Dwarika Ram and Sudhir Ram had been falsified by the Investigating Agency, which is stated by the victim Manoj Sao also in his depositions vide para – 8, where he had stated that two persons Sudhir Ram and Dwarika Ram were not involved in the commission of offence and their names were wrongly given by the father (informant), which suggests that the allegations made by the father of the victim in the FIR is to be scrutinized very carefully inasmuch as some of the persons were falsely implicated. Further, it is found that at the outset in FIR there was no whisper about the motive of committing assault of murder upon the victim by the appellants Arvind Ram and Pradip Ram, but subsequently, it has come in the testimonies of the witnesses examined on behalf of the prosecution consistently and uniformly by Lilawati Devi PW-1, informant Shiv Prasad Sao PW-4 and injured Manoj Sao PW-5 that there was enmity between both the parties since last one year, because the appellant No.2 Pradip Ram had teased the wife of the victim PW -5 Manoj Sao, but the prosecution did not examine the wife of victim PW – 5 Manoj Sao in order to corroborate the allegations of teasing by the appellant No.2 to the wife of the victim Manoj Sao. 9. PW – 1 Lilawati Devi is hearsay witness and she is said to be the daughter-in-law of the informant and the Bhabhi of victim PW – 5. She stated that she had seen Pradip Ram and Arvind Ram were running away and Arvind Ram was holding blood stained tangi (Axe). She had also stated about the cause of the incident that the appellant No.2 Pradip Ram was teasing the wife of PW-5 Manoj Sao. She stated that she had seen Pradip Ram and Arvind Ram were running away and Arvind Ram was holding blood stained tangi (Axe). She had also stated about the cause of the incident that the appellant No.2 Pradip Ram was teasing the wife of PW-5 Manoj Sao. The attention of this witness PW – 1 was drawn to her earlier statement given before the police, but since the I.O. in this case has not been examined and therefore the accused appellants have been debarred to hold the effective cross-examination of this witnesses and this caused serious prejudice to the appellants undoubtedly to ascertain the truthfulness of this witness. 10. PW – 2 Mahendra Paswan is said to be the shopkeeper of cycle repairing shop, where the incident is said to have been taken place and he has been declared hostile and did not support the case of the prosecution and therefore important independent witness has been declared hostile and since the I.O. in this case has not been examined and therefore the earlier statement before the police could not be appreciated to find out the reliability of the charges attributed to the appellants. 11. PW – 3 Ajit Bahadur Ram has also been declared hostile and he also did not support the case of the prosecution. 12. PW – 4 Shiv Prasad Sao is the father of the victim PW – 5 Manoj Sao and he is the informant of the case and proved his signatures on the Fardbeyan, signature of Santosh Prasad on the Fardbeyan as Ext.1 and Ext.1/1. The credibility of this witness gets shaken because of the fact that his categorical statement in the FIR about the assault by four persons get falsified during the course of the investigation and also by the deposition of the victim PW – 5 and therefore the credibility of this witness is doubtful. The two persons, who were said to have assaulted the victim namely Sudhir Ram and Dwarika Ram were not sent for trial and they have been named wrongly as disclosed by PW – 5 in para 8 of his deposition. PW – 4 is the hearsay witness as evident from para 10 and 11 of the cross-examination of this witness, as he categorically stated that one Bhikhari Mistri and Jitan Sao had told that Pradip and Arvind had assaulted his son P.W.5 Manoj Sao. PW – 4 is the hearsay witness as evident from para 10 and 11 of the cross-examination of this witness, as he categorically stated that one Bhikhari Mistri and Jitan Sao had told that Pradip and Arvind had assaulted his son P.W.5 Manoj Sao. The attention of this witness has also been drawn towards his previous statement before the police about the places where the injuries are said to have been inflicted, but due to non-examination of the I.O., defence version could not get opportunity to bring the contradictions and inconsistencies in the depositions of the witnesses examined on behalf of the prosecution. This witness had also admitted that there had been enmity with the accused persons and thus it is well founded that the depositions of PWs – 1, 4 & 5 are inimical evidences which requires to be scrutinized very meticulously and cautiously. The defense taken by the accused appellants is that the victim Manoj Sao was collecting chanda (donation) forcibly and unlawfully on the occasion of Durga Puja from the bus driver and passengers on the road and during the course of realization of chanda from unknown persons, quarrel took place and thereby he sustained injuries and due to admitted enmity between the accused and the appellants, they have been falsely implicated in this case and the possibility of the defence becomes manifest and imminent and the same cannot be ruled out in view of the admitted fact that the victim Manoj Sao was caught by the police also while he was realizing the chanda as evident from para 19 of the deposition of witness PW -4 who is the father of the victim P.W.5. 13. The defence taken on behalf of the appellants further gets corroborated and substantiated because of the testimonies of PW 5 Manoj Sao who is said to be the injured witness of this case upon whom the appellants were charged to commit the offence of attempt to murder. In Para – 4, it has been stated by this witness PW – 5 that the appellant No.2 Pradip Ram has teased his wife and therefore there was enmity between them. The wife of this witness has not been examined to corroborate the allegations of teasing nor was any case instituted for the harassment and teasing of his (victim P.W.5) wife upon the appellant No.2. The wife of this witness has not been examined to corroborate the allegations of teasing nor was any case instituted for the harassment and teasing of his (victim P.W.5) wife upon the appellant No.2. As a consequence false implication of the accused-appellants in this case is well founded in the light of categorical admitted defence taken by the appellants due to forcible and unlawful realization of chanda on the occasion of Durga Puja from the passengers and bus drivers, a quarrel took place under which, he sustained the injuries and therefore these appellants have been falsely implicated. Since it is admitted case of the prosecution that Manoj Sao was collecting Chanda (donation) on the occasion of Durga Puja and he was caught by the police during the course of this unlawful collection of chanda therefore the charges remained uncorroborated and unsubstantiated, because of non-examination of the I.O which has seriously caused prejudice to the accused appellants to their false implication. 14. PW – 6 Alok Kumar Mandal is the doctor, who had found the injuries upon the victim PW – 5, which are as under:- “(i) Incise wound causing complete separation of three fingers and partial separation of one finger of right hand (fore finger to little finger) (ii) Incise wound causing complete separation of three fingers middle to little of left hand. (iii) Incise wound 2 ½” x ¼” x ½” causing cutting of upper lip (iv) Incise wound 3”x1”x ½” at right knee joint. (v) Incise wound 5”x1”x ½ “at right scapular area (vi) Lacerated wound 4”x ½” x ¼” left infra scapular area (vii) Lacerated wound 2” x ½” x ¼” left scapular area.” The aforesaid injuries have been found by the doctor P.W.6 who proved the injury report Ext.2, but from the deposition of the witnesses examined on behalf of the prosecution, the false implications of these appellants cannot be ruled out and therefore the benefit of doubt must go to the appellants. It is a case where the non-examination of the I.O. has drastically and wholly damaged the case of the prosecution and affected the defence taken on behalf of the appellants including (1) enmity and (2) forcible realization of Chanda by the passengers and bus drivers by the victim P.W.5. The formal FIR and the Fardbeyan have been brought on record upon the identification of a constable Sahbir Oraon, PW -7, which is Ext. The formal FIR and the Fardbeyan have been brought on record upon the identification of a constable Sahbir Oraon, PW -7, which is Ext. -3 & Ext.1/3, but he candidly stated in his cross-examination, that the papers were not prepared by him and nor he had opportunity to work with the officer in charge of Chainpur police station and therefore these documents have also not been proved as per the established and prescribed procedure. Learned trial court has also not appreciated the depositions of the two witnesses, who have been examined on behalf of the defence DW – 1 Suresh Ram and DW – 2 Bhikhari Mistri. From perusal of the testimonies of these two defence witnesses, it is found that the defence taken by the appellants that the quarrel took place between Manoj Sao and unknown persons including the passengers and bus driver during the course of realization / collection of Chanda forcibly and unlawfully on the occasion of Durga Puja by the victim P.W.5 have been corroborated, substantiated and established in view of the admitted case of the prosecution that the son of the informant was collecting Chanda on the occasion of Durga Puja and when the occurrence took place, he was sitting in the cycle repairing shop of PW – 2(who did not support the case of the prosecution) for the accounting of Chanda. 15. Recapitulating the aforesaid depositions, it is well founded that the learned trial court has committed error in the appreciation of the admitted case, vis-à-vis the defence taken on behalf of the appellants including the enmity and second the assault by the unknown persons during the course of collection of chanda unlawfully and illegally from the passengers and the bus drivers on the road. There was no whisper of the motive in the alleged assault by the appellants upon the victim Manoj Sao in the FIR but subsequently the motive disclosed consistently and uniformly in the testimonies of the PWs, 1, 4, and 5 that the wife of PW – 5 was teased by the appellant No.2 Pradip Ram, could not be substantiated and sustained due to non-examination of wife of P.W.5 and falsifies the entire prosecution case because of the admitted version of the prosecution witnesses that the victim Manoj Sao was caught by police while collecting chanda forcibly and unlawfully substantiating the defence taken by the appellants. The credibility and truthfulness of version of PW – 4 (informant) also gets shaken in view of the fact that he named four persons specifically in the FIR, but his son Manoj Sao had deposed that two of them namely Dwarika Ram and Sudhir Ram were wrongly named by his father (informant). All these facts have not been taken into consideration by the learned court below and therefore the holding the guilt of the accused appellants for the offence punishable under Sections 307/34 of IPC are not tenable in the eyes of law and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside. 16. As a consequence, the impugned Judgment of Conviction dated 31.05.2004 and order of sentence dated 01.06.2004, passed by learned Additional Sessions judge, FTC-II, Palamau at Daltonganj, in connection with S.T. No.261 of 2003, arising out of Chainpur P.S. Case No.102 of 2002, corresponding to G.R. No.1321 of 2002 against these two accused-appellants Arvind Ram and Pradip Ram, is hereby set-aside. 17. Accordingly, this appeal is allowed. 18. Both the appellants are on bail and they are discharged from the liabilities of the bail bonds. 19. Let the Lower Court Record be sent back forthwith to the concerned court below.