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2023 DIGILAW 246 (JHR)

Dayal Dhobi v. State of Jharkhand

2023-02-27

AMBUJ NATH

body2023
JUDGMENT : 1. Heard the parties. 2. The petitioners namely Dayal Dhobi, Mahesh Dhobi @ Mahesh Rajak and Naresh Dhobi @ Naresh Rajak have preferred this appeal against the Judgment dated 16.12.2015 passed by Sri Ramesh Kumar Srivastava, learned Additional Sessions Judge-II-cum-Fast Track Court, Bermo at Tenughat in Criminal Appeal No.68/2008, whereby and wherein, the learned Additional Sessions Judge-II, Bermo at Tenughat affirmed the judgment of conviction and order of sentence passed by Sri Rajesh Shrivastava, learned Judicial Magistrate, 1st class, Bermo at Tenughat in connection with Nawadih P.S Case No.28/2005, corresponding to G.R No.268/2005, holding the petitioners guilty for the offences under Sections 341/34, 323/34, 324/34, 325/34, 427/34 and 504/34 of the Indian Penal Code and thereby, sentencing them to undergo simple imprisonment for fifteen days for the offence under Section 341/34 of the Indian Penal Code, simple imprisonment for six months for the offence under Section 323/34 of the Indian Penal Code, simple imprisonment for three years for the offence under Section 325/34 of the Indian Penal Code, simple imprisonment for one and half years for the offence under Section 324/34 of the Indian Penal Code, simple imprisonment for one year for the offence under Section 427/34 of the Indian Penal Code and simple imprisonment for one year for the offence under Section 504/34 of the Indian Penal Code. All the sentences were ordered to run concurrently. 3. Prosecution case was instituted on the basis of a written report of the informant, Sona Ram Dhobi, alleging therein that on 04.04.2005 at about 8:00 A.M, the petitioners started demolishing his wall, when he protested, the petitioners abused him and assaulted him by lathi. When his wife Rupa Devi, daughter-in-law Sabitri Devi and grand-son came to his rescue, they were also assaulted. 4. Both the learned Trial Court and the learned Appellate Court have come to a concurrent finding regarding the guilt of the petitioners. 5. In order to prove its case, the prosecution has adduced both oral and documentary evidence. P.W.8 Sona Ram Dhobi being the informant of this case has supported his case as made out in the written report and has stated that all the three petitioners namely Dayal Dhobi, Mahesh Dhobi @ Mahesh Rajak and Naresh Dhobi @ Naresh Rajak were demolishing his wall. When he protested, they assaulted him by lathi and Axe. P.W.8 Sona Ram Dhobi being the informant of this case has supported his case as made out in the written report and has stated that all the three petitioners namely Dayal Dhobi, Mahesh Dhobi @ Mahesh Rajak and Naresh Dhobi @ Naresh Rajak were demolishing his wall. When he protested, they assaulted him by lathi and Axe. When his wife, daughter-in-law and Ghanshayam Rajak came to his rescue, they were also assaulted. P.W.1 Rupa Devi the wife of the informant; P.W.2 Sabitri Devi the daughter-in-law of the informant and P.W.3 Ghanshayam Rajak all have corroborated the ocular account of the informant, Sona Ram Dhobi P.W.8 that on 04.04.2005 at about 8:00 A.M, the petitioners were demolishing his wall and when he protested, the informant Sona Ram Dhobi P.W.8, Rupa Devi P.W.1, Sabitri Devi P.W.2 and Ghanshayam Rajak P.W.3 were assaulted by these petitioners. 6. Dr. Narendera Bhadani, P.W.9 had examined the injured witnesses. He found the following injuries on their persons: - (i). Swelling and tenderness of dorsum of left hand and little finger with depression of proximal phalane of little finger. (ii). Bruise 1 ½” x 1/2” on left shoulder. (iii). Abrasion 1/2” x ¼” on posterior surface of left forearm in middle. (iv). Abrasion and swelling and tenderness on forehead in middle near hairline. The injuries were caused by hard and blunt substance. Injury Nos. (ii), (iii) & (iv) according to the doctor were simple in nature caused within 6-12 hours of the examination. The doctor further on the basis of X-ray report pertaining to the injured Ghanshyam Rajak had opined that the Injury No.1 was grievous in nature. On examination of Triveni Rajak, he observed as under: (i). A lacerated wound 1 ¼” x 1/8” x skin deep on right eyebrow. (ii). Abrasion: 1 ¼” x ½” on lateral side of posterior surface of right elbow. (iii). Abrasion: 3/4” x ½” on right knee. (iv). Abrasion two in number: 1” x 3/4” & ½” x ½” on left knee. (v). Bruise 2” x 1” on right side of back in mid join. (vi). Bruise 2” x 1” on left side of back. Nature of injuries were simple. On the same day, the doctor examined Sabitri Devi and found following injuries : (1) one lacerated wound ½” x 1/8” on right side of eye on nasal side. Nature of injury was simple. (vi). Bruise 2” x 1” on left side of back. Nature of injuries were simple. On the same day, the doctor examined Sabitri Devi and found following injuries : (1) one lacerated wound ½” x 1/8” on right side of eye on nasal side. Nature of injury was simple. On the same day, Sona Ram Dhobi was also examined by the doctor, with following injuries, (i). One lacerated wound: on forehead 2” x 1/8” x scalp deep. (ii). One lacerated wound 1/2” x 1/4” x scalp deep on right parietal region of head. (iii). Swelling and tenderness on two places in occipital region of head. (iv). One incised wound 1” x 1/8” x skin deep on posterior surface of right forearm in middle. (v). Abrasion: 1” x ½” on lateral surface of right arm. (vi). Swelling and tenderness of thumb and index finger of right hand. (vii). Bruise 2” x ½” on left scapular region of back; and (viii). Bruise 2” x ½” in left loin. Nature of injury Nos.(i) to (viii), except injury No.(iv) were found to have been done by hard and blunt substance while injury No.(iv) was inflicted by sharp cutting instrument. All injuries though were simple in nature. 7. According to this witness, Injury No.1 sustained by Ghanshyam Rajak P.W.3 and injury No.1 sustained by Rupa Devi P.W.1 were grievous in nature and rest all the injuries suffered by the injured persons were simple. 8. Prosecution had also produced the X-ray report of the injured persons, showing that Rupa Devi P.W.1 and Ghanshyam Rajak P.W.3 had sustained grievous injuries. 9. As Rupa Devi P.W.1 and Ghanshyam Rajak P.W.3 had sustained grievous injuries, their presence at the place of occurrence is not doubtful. 10. The genesis of the occurrence is dispute over the wall between both the sides. Both the sides are related to each other. There was dispute between them over the ownership of the wall, which resulted into the present occurrence. 11. It is also evident that the petitioners had assaulted the informant and other injured persons by lathi. Lathi is an instrument which can be used as a weapon of offence and if struck on the vital parts, can cause death. So, the offence committed by the petitioners in causing simple injuries to the informant and other injured persons will come under Sections 324/34 of the Indian Penal Code. 12. Lathi is an instrument which can be used as a weapon of offence and if struck on the vital parts, can cause death. So, the offence committed by the petitioners in causing simple injuries to the informant and other injured persons will come under Sections 324/34 of the Indian Penal Code. 12. Considering the manner of occurrence, the judgment of conviction both under Sections 323/34 and 324/34 is not tenable. The learned Trial Court has erred in holding the petitioners guilty for the offence under Section 323/34 of the Indian Penal code. However, learned Trial Court has rightly held the petitioners guilty for the offences under Sections 341/34, 324/34, 325/34, 427/34 and 504/34 of the Indian Penal Code. Accordingly, the judgment of conviction and order of sentence passed by the learned Trial Court under Section 323/34 is hereby, set aside. 13. Occurrence has taken place on 04.04.2005. The petitioners have undergone rigorous of trial for about 18 years. There is nothing on record to show that the petitioners are accused in any other case. The occurrence took place due to the dispute over the ownership of wall between the parties. 14. Considering the aforesaid facts, I am of the opinion that it will be expedient in the interest of justice to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the petitioners. Accordingly, The petitioners shall be released after furnishing a bond of Rs.20,000/-with two sureties for maintaining peace and good conduct for a period of one year. 15. The Judgment of sentence passed by the learned court below is accordingly, modified. 16. This revision application is partly allowed. 17. Pending I.A, if any, also stands disposed of.