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2022 DIGILAW 836 (JHR)

Sahal Sao v. State of Jharkhand

2022-07-12

NAVNEET KUMAR

body2022
ORDER : 1. The present appeal is directed against the judgment of conviction and order of sentence dated 28.07.2005 passed by the court of learned Sessions Judge, Simdega in S.T. No. 72 of 2003 arising out of T.Tangar P.S. Case No. 28 of 2002, G.R. Case No. 209/2002, Simdega, Jharkhand whereby and whereunder the sole appellant was found guilty for the offence punishable u/s 323 of IPC and sentenced to undergo RI for one year. 2. The prosecution case arose in the wake of the written statement of informant Arjun Paswan (P.W.6) who stated in his written statement dated 26.08.2002 that he was posted at T.Tangar P.S. in Simdega District and on 26.08.2002 in course of inquiry he had gone to village Tukupani, Gurgurtoli in connection of investigation of Sanha case No. 355 dated 24.08.2002 and he was accompanied by Chaukidar Lal Mohan Baraik and Junas Soreng. In course of investigation he reached to the shop of the accused-appellant Sahal Sao at about 2.00 p.m. and asked him whether he had injured the dog of Ghuran Sao, the allegation of which has been levelled against him. Thereupon, Sahal Sao, started abusing him and called his associate Praful Kerketta @ Budhu Kermetta (absconding accused), Bahal Sao, Lalia Sao, Somra and Suresh Turi (absconding accused) and some unknown persons. They surrounded him saying to kill him. In order to save himself, he ran away from there and entered into the house of Ghuran Sao and bolted the door from inside. But, the accused persons also reached there and Sahal Sao and Bahal Sao asked to break open the door by using abusing words against him. They started pushing the door violently as a result of which the door got opened and Sahal Sao and Praful Kerketta entered into the room while other accused persons remained standing outside the room. They started assaulting him with lathi indiscriminately. The informant started weeping and begging apology on which Sahal Sao took away diary from him and put him down and also took away Rs.957/- from his pocket alleging that the money was ill gotten. It was also alleged in the written report (Ext. 2) of the informant Arjun Paswan P.W. 6 that thereafter also they assaulted him, but, he managed to escape from there and reached T.Tangar P.S. He also mentioned in his written report that the Chaukidar accompanying him had seen the occurrence. 3. It was also alleged in the written report (Ext. 2) of the informant Arjun Paswan P.W. 6 that thereafter also they assaulted him, but, he managed to escape from there and reached T.Tangar P.S. He also mentioned in his written report that the Chaukidar accompanying him had seen the occurrence. 3. On the basis of written report of informant T. Tangar P.S. Case No. 28/2002 has been registered under sections 147, 148, 149, 448, 353, 333, 379, 307 and 504 of IPC. After investigation police submitted the charge sheet vide charge sheet No. 36/2002 on 30.11.2002 under sections 147, 148, 149, 448, 353, 333, 379, 307 and 504 of IPC. After taking cognizance the case was committed to the court of Sessions. Learned Sessions Judge, Simdega framed the charge under sections 379 of IPC against accused Sahal Sao and under sections 307/34, 307/149, 353 of IPC against accused Sahal Sao, Bahal Sao, Jalsa Sao, Laliya Sao. The learned trial court after conducting the trial passed impugned judgment of conviction and order of sentence which is under challenge in this appeal. 4. Heard Mr. A.K. Chaturvedi, learned counsel for the appellant and Mr. Bishwambhar Shastri, learned A.P.P. on behalf of the state. Arguments on behalf the appellant 5. It is submitted on behalf of the appellant that the learned trial court has not appreciated the entire evidences in a holistic manner and passed the impugned judgment of conviction and order of sentence which is bad in law and fit to be set aside. In view of the fact that the learned court below did not consider the material contradictions and also depositions of the Doctor P.W. 5 Dr. Satish Chandra who stated that the injury no. 3 may be caused by fall on the surface and, therefore, the nature of assault alleged to have been sustained by the informant might have not been inflicted by this appellant. It has further been pointed out that initially the charges were framed for the offences punishable u/s 307/34, 307/149, 379, 353 of IPC, but, this appellant was acquitted along with the co-accused persons for the offence punishable u/s 307/34, 307/149, 353 and also u/s 379 of IPC and lastly, the learned trial court convicted the appellant only for the offence punishable u/s 323 of IPC which is also not tenable in the eyes of law. Therefore, it is urged on behalf of the appellant, let this appeal be allowed. 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 appellant and submitted that the learned trial court has rightly appreciated the evidences and passed the impugned judgment of conviction and order of sentence and no legal point 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 learned counsel for the parties and perused the material available on record including Lower Court Record. 8. In order to substantiate the case of the prosecution the prosecution has been able to examined as many as 7 witnesses in this case which are as under: P.W. 1- Dasmi Devi, P.W. 2- Leelawati Devi, P.W.3 Chandrawati Devi, P.W. 4 Surya Sahu, P.W. 5 Dr. Satish Chandra, P.W. 6 - Arjun Paswan and P.W. 7 Sikandar Prasad Singh. 9. P.W. 6- Arjun Paswan, is the informant of this case and he had supported the case of the prosecution as set out in his written report (FIR) which has been marked as Ext. 2 and he stated that he reached to the place of occurrence in the shop of the appellant and started interrogating him then the appellant abused him and called his associates and after surrounding, they assaulted him (the informant). Although, the version of this witness about snatching and taking away a sum of Rs. 957/- has not been proved nor the charges of interfering in discharging of official duty by using criminal force, by the informant nor any murderous assault upon the informant has been proved and in result the appellant has been acquitted u/s 307, 353 and 379 read with sections 149 and 34 of IPC, but, he has been held guilty for the minor offence u/s 323 of IPC as the version of this informant has been coherently substantiated as disclosed in FIR. Learned trial court has rightly appreciated that the chowkidar who stated and had been accompanying with the informant (both of them) has not been examined. Further, P.W. 2 Lilawati Devi is the daughterin- law of Ghuran Sao. Learned trial court has rightly appreciated that the chowkidar who stated and had been accompanying with the informant (both of them) has not been examined. Further, P.W. 2 Lilawati Devi is the daughterin- law of Ghuran Sao. P.W. 1- Dashmi Devi, P.W. 2 Lilawati Devi P.W. 3 Chandrawati Devi, wife of Ghuran Sao P.W. 4 Surya Sao (husband of P.W.2) have consistently supported the case of the prosecution and their testimonies have been rightly appreciated by the learned court below by which the charges of assault as made out by the informant against this appellant is substantiated against the accused appellant for the offence punishable u/s 323 of IPC. They all stated that when the informant had gone for interrogation of the case then an altercation took place between the informant and the appellant and thereby the informant was assaulted by the appellant and other accused persons although the other accused persons have been acquitted. P.W. 5 Dr. Satish Chandra had examined the injured P.W.6- Arjun Paswan on 26.08.2002 and the injury report was marked as Ext.1 and he had found the following injuries which are as under: i) Defused tender swelling on postero-lateral aspect of left elbow. ii) Tender swelling next distal end of left middle finger. iii) Abrasion 2”x1” on anterior and lateral aspect of left knee. iv) Tender swelling on right leg on postero lateral aspect 6”x4”. He (P.W. 5) has opined that all the injuries were simple in nature and caused by hard and blunt substance. 10. P.W.7 Sikander Prasad Singh is the I.O. of this case and after investigation he had submitted the charge sheet and from his deposition it appeared that he had inspected the place of occurrence and had proved the formal FIR Ext. 3 and the boundaries of the place of occurrence has also been stated by this witness and after taking the injury report from the Doctor he has finally submitted the charge sheet and no irregularities have been found in the cross examination in order to disbelieve the version of the prosecution. 11. Recapitulating the testimonies of the witnesses examined on behalf of the prosecution in the foregoing paragraphs, it is well founded that learned trial court has rightly appreciated the evidences available on record and rightly convicted the appellant for the offence punishable u/s 323 of IPC. 11. Recapitulating the testimonies of the witnesses examined on behalf of the prosecution in the foregoing paragraphs, it is well founded that learned trial court has rightly appreciated the evidences available on record and rightly convicted the appellant for the offence punishable u/s 323 of IPC. Accordingly, this Court does not find any error/irregularities in the conviction as held by the learned trial court and, therefore, it upholds the conviction of the appellant for the offence punishable u/s 323 of IPC. 12. So far as the sentence is concerned, it is found that it is a case of the year 2002, about 20 years ago and from the record it appears that the appellant has remained in custody for 3 and 1/2 months and there is nothing on record to show about any criminal history of the appellant and further it is also found that the appellant over the period of time has become about 45 years and, therefore, in the interest of justice it is just and fair to take a lenient view. This Court is of the view that purpose of justice would be served if instead of awarding further sentence of imprisonment, the sole appellant is sentenced to the imprisonment for a term of period already undergone by him. In the result, the appellant is sentenced to the imprisonment for a term of period already undergone by him. 13. In the backdrop, this appeal is dismissed as above. 14. Since the appellant is on bail he is discharged from the liability of bail bonds. 15. Let the LCR be sent back to the learned court below along with the copy of the judgment.