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2024 DIGILAW 128 (JHR)

Shyam Gupta v. State of Jharkhand

2024-02-07

NAVNEET KUMAR

body2024
JUDGMENT : NAVNEET KUMAR, J. Heard learned counsel Mr. Shailesh Kumar Singh appearing on behalf of the appellants and Mr. Sardhu Mahto, learned A.P.P. appearing on behalf of the State. 2. This appeal is, directed against the judgement of conviction and order of sentence both dated 18.03.2017 passed by the learned District & Additional Sessions Judge-II, Dhanbad in S.T. Case No. 551 of 2013 in connection with Dhansar (Dhanbad) P.S. Case No. 433 of 2013 corresponding to G.R. Case No. 1740 of 2013, whereby and where under the appellant No. 1, i.e. Shyam Gupta has been convicted under section 341, 324,307,504 of IPC and sentenced to undergo one month simple imprisonment for the offence punishable under Section 341 of the Indian Penal Code, R.I. for 2 years for the offence under Section 324 of the Indian Penal Code, R.I. for 6 months for the offence under Section 504 of the Indian Penal Code and R.I. for 3 Years with a fine of Rs.5000/- (Rs. Five Thousand) under Section 307 of the Indian Penal Code and in case of default of payment of fine further directed to undergo rigorous imprisonment for six months with a further direction that all the sentences shall run concurrently. Appellant No. 2, i.e. Anil Kumar Gupta @ Anil Gupta has been convicted for the offence under section 341,323,504 of IPC and sentenced to undergo S.I. for a period of 1 (one) month for the offence punishable under Section 341 of the Indian Penal Code, R.I. for 6 (six) months for the offence under Section 323 of the Indian Penal Code and R.I. for 6 (six) months under Section 504 Indian Penal Code with the similar direction that all the sentences shall run concurrently. 3. The prosecution case arose in the wake of fardbeyan of Sujit Kumar Verma (P.W.-2) recorded by the A.S.I. Sudama Prasad of Bank More P.S. dated 18.04.2013 at about 11:50 A.M. at Patliputra Nursing Home. Briefly stating the allegations as set out in the said fardbeyan are as under; 4. 3. The prosecution case arose in the wake of fardbeyan of Sujit Kumar Verma (P.W.-2) recorded by the A.S.I. Sudama Prasad of Bank More P.S. dated 18.04.2013 at about 11:50 A.M. at Patliputra Nursing Home. Briefly stating the allegations as set out in the said fardbeyan are as under; 4. It was stated by the informant Sujit Kumar Verma (P.W.-2) that on 18.04.2013 at about 9:30 P.M. there was altercation between the accused Shyam Gupta and his father namely Kapil Prasad Verma due to sewerage and drainage problem and at that time when the informant went to pacify the matter accused Anil Kumar Gupta @ Anil Gupta (brother of the accused Shyam Gupta) with lathi and Shyam Gupta with sword and Vishal Gupta with rod came and started assaulting him with sword, rod and lathi and when the informant started screaming, his mother and Bhabhi came to rescue him but the accused persons also assaulted them and Anil Kumar Gupta @ Anil Gupta (Appellant No. 2) snatched the chain from the neck of his Bhabhi. It has further been stated by the informant that no one of his muhalla came to save him and thereafter, he became unconscious and regained his sense in hospital and then he gave his fardbeyan to the police. 5. On the basis of the aforesaid fardbeyan recorded by the police on 18.04.2013 the case was forwarded to the officer-in-charge of Dhansar Po-lice Station for necessary action as the place of occurrence lies in the jurisdiction of Dhansar Police Station. Accordingly, Dhansar Police Station registered the case as Dhansar (Dhanbad) P.S. Case No. 433 of 2013 dated 22.04.2013 under Section 341, 323, 324, 379 /34 of the Indian Penal Code and A.S.I. Arbinda Kumar Dubey of Dhansar Police Station was assigned to investigate the case. After investigation the charge-sheet was submitted against both the appellants i.e. Shyam Gupta, appellant No. 1 and Anil Ku-mar Gupta @ Anil Gupta, appellant No. 2, for the offence punishable under Sections 341, 323, 324, 307, 504/34 of the Indian Penal Code and accordingly the learned C.J.M. took the cognizance against the aforesaid appellants on 27.06.2013 and thereafter the case was committed to the Court of Session on 20.09.2013. 6. On receipt of the case record on 19.12.2013, the learned Addl. 6. On receipt of the case record on 19.12.2013, the learned Addl. Sessions Judge-VII, Dhanbad had framed the charge against the accused appellants for the offence punishable under Sections 341/34, 323/34, 324/34, 307/34, 504/34 of the Indian Penal Code and the charges were read over and explained to the accused appellants in Hindi to which they pleaded not guilty and claimed to be tried. 7. The charge-sheet was also submitted against one another co-accused i.e. Vishal Kumar Gupta, who was found juvenile at the time of occurrence and therefore, his case was split up and sent to the Court of Principal Magistrate, Juvenile Justice Board, Dhanbad for enquiry and these two appellants faced the trial 8. Further the statement of the accused persons on completion of the evidences on the prosecution side recorded under Sections 313 of the Cr.P.C. and the accused persons were accorded opportunity to adduce the evidence. The learned Court below after conducting the full-fledged trial passed the impugned judgement of conviction and order of sentence, which is under challenge. Arguments advanced on behalf of the appellants- 9. At the outset it is submitted on behalf of the appellants that the impugned judgement of conviction and order of sentence is wholly erroneous and is not based on the legal evidence. The learned counsel appearing on behalf of the appellants has pointed out that it is an admitted case of the prosecution that on earlier occasion also the accused persons had instituted a case against the informant people, vide Dhanbad (Dhansar) P.S. Case No. 422 of 2013, dated 18.04.2013 registered under Sections 341, 323, 379, 307 and 34 of the Indian Penal Code against the informant and others, which has been brought on record vide Exhibit-A. 10. It is further submitted in the said case (Exhibit-A) both the parties including the appellants and the informant of the present case has compromised and on the basis of the said compromise the case was allowed to be compounded and the informant people being the accused in that case were discharged from the liabilities of their bail bonds, which is evident from Exhibit-C which is also on the record. The learned defence counsel has also pointed out towards Exhibit-D, which is the compromise petition between both the parties in the case instituted by the appellant people vide Exhibit-A. 11. The learned defence counsel has also pointed out towards Exhibit-D, which is the compromise petition between both the parties in the case instituted by the appellant people vide Exhibit-A. 11. Further the learned defence counsel appearing on behalf of the appellants has also submitted that as a matter of fact when the case was instituted by the appellant people vide Exhibit-A on 18.04.2013 and thereafter the informant people after a long period of time when the case was instituted against the informant people on 18.04.2013 for a dispute regarding the drainage system as both the parties are neighbours to each other, then the informant people had instituted a false case after a pre-thought move in order to save their skin from the criminal case instituted by the appellant people vide Dhansar (Dhanbad) P.S. Case No. 422 of 2013, dated 18.04.2013, corresponding to G.R. case No. 1674 of 2013, registered under Sections 341, 323, 379, 307, 34 of the Indian Penal Code i.e. Exhibit-A, which is evident from the F.I.R. of the present case itself which is Exhibit-3. 12. It has been pointed out from the body of the fardbeyan of the present case (Ext. 3) that the date has been mentioned as 18.04.2012 although it was recorded on 18.04.2013. Further, it has also been pointed out that the fardbeyan has been recorded on 18.04.2013 and the formal F.I.R. was drawn on 22.04.2013 and such an inordinate delay has never been explained by the prosecution. Further it has also been submitted that the I.O. in the investigation of the present case did not mention about the earlier case instituted by the appellant people against the informant vide Exhibit-A, although he himself was investigating that case also which was instituted by the appellant people against the informant i.e. Exhibit-A as evident from the deposition of the I.O. i.e. P.W.-5, vide para-11. 13. Further, it has also been submitted on behalf of the appellants that injury report which is said to be Exhibit-2 is also false, fabricated and manufactured as evident from the injury report vis-a-vis the depositions of the doctor i.e. P.W.4. 13. Further, it has also been submitted on behalf of the appellants that injury report which is said to be Exhibit-2 is also false, fabricated and manufactured as evident from the injury report vis-a-vis the depositions of the doctor i.e. P.W.4. in view of the fact that as per the fardbeyan of the informant P.W.-2, he sustained the injuries by the appellants on 18.04.2013 while the doctor i.e. P.W.-4 stated that he had examined the injured P.W.-2 on 27.04.2013 i.e. after a gap of nine days indicating that this injury report was manufactured because P.W.-2 has clearly stated in his deposition that the accused people had been assaulting continuously and intensively by sword, danda and lathi as appears from para-8 of the cross-examination of P.W.-2 (Injured) and thus the version of P.W.-2 gets wholly falsified in view of the deposition of the doctor who had examined him after nine days which appears to be highly improbable when the injured P.W.-2 was alleged to have assaulted ruthlessly by sword, danda and lathi. Further it has been pointed out that the doctor has found only one injury and that is 3”x4” scalp deep which was simple in nature and it has been admitted by the doctor that neither the age of the injury was written nor any specific opinion has been given about the manner and mode of the said injury caused to the injured. 14. Further, the learned defence counsel has also pointed out towards Exhibit-1, which is the compromise petition under which both the parties had entered into a compromise in this case also upon which the informant i.e. P.W.-2, Sujit Kumar Verma, his Bhabhi, P.W.-1 i.e. Sobha Verma and Shakuntala Devi i.e. mother of P.W.-2 had also put their signature and thus it is evident from the aforesaid facts that the informant people of this case including P.W.-2 and P.W.-3, had instituted the present case (Ext. 3)in order to save their skin from the earlier instituted case by the appellant people which is Exhibit-A, which concluded in compromise between both the parties and when the matter was compromised in that case instituted by the appellant people then the false case instituted by the informant people could not be relied upon and thus it is found that the entire injury report and the entire story as narrated in the said F.I.R. is wholly false, fabricated and concocted and the learned Court below has not relied upon the documents and the depositions in the right perspective and passed the impugned judgement of conviction and order of sentence in a mechanical manner without appreciating of all these facts and therefore, the impugned judgement of conviction and order of sentence is fit to be set aside. Arguments advanced on behalf of State- 15. On the other hand, learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellants and submitted that the learned Trial Court below has rightly relied upon the injury report and the deposition of the P.W.-1, P.W.-2, P.W.-3 alongwith the doctor P.W.-4, and the I.O. P.W.-5 and passed the impugned judgement of conviction and order of sentence and there is no legal point to interfere in the same and this appeal is fit to be dismissed being devoid of merit but the learned A.P.P. did not deny this fact that as per the fardbeyan the injury was said to have been inflicted upon injured P.W.-2 on 18.04.2013 and he was medically examined on 27.04.2013 i.e. after a delay of nine days for which no cogent explanation has been given on behalf of the prosecution. 16. Further, the learned A.P.P. also did not deny this fact that there are several anomalies in the date which of course is of typographical in nature in the fardbeyan where the date of incidence has been written as 18.04.2012 at two places whereas the fardbeyan was recorded on 18.04.2013 and the incidence is also said to have taken place on 18.04.2013. The learned A.P.P. also did not deny the fact that after recording the fardbeyan on 18.04.2013 the formal F.I.R. was drawn after a delay of four days i.e. on 22.04.2013 and the same was sent to the Court of learned C.J.M. on 25.04.2013 i.e. after a delay of three days 17. The learned A.P.P. also did not deny the fact that after recording the fardbeyan on 18.04.2013 the formal F.I.R. was drawn after a delay of four days i.e. on 22.04.2013 and the same was sent to the Court of learned C.J.M. on 25.04.2013 i.e. after a delay of three days 17. Further, the learned A.P.P. also did not deny the fact that on earlier occasion the appellant people had also instituted a case against the informant and his family members vide Exhibit-A in which the compromise has taken place between both the parties. Appraisal & Findings 18. Having heard learned counsel for the parties, perused the records of this case including the Lower court Record. 19. In order to prove its case, the prosecution has been able to examine altogether five witnesses who are as under: P.W. 1 is Sobha Verma, she is Bhabhi of the informant. P.W. 2 is Sujit Kumar Verma. He is the informant of this case. P.W. 3 is Rajesh Kumar Verma. He is brother of the informant. P.W. 4 is Dr. Md. Fakruddin, who has prepared injury report of the informant. P.W. 5 is Arbinda Kumar Dubey, A.S.I. of police and the I.O. of this case. 20. Apart from the oral evidence some documentary evidences have also been adduced on behalf of the prosecution which are as under: Ext.- 1 is the signature of the informant on the compromise petition. Ext.- 1/1 is the signature of informant on fardbeyan, Ext.- 1/2 is the fardbeyan, Ext.- 2 is the injury report, Ext.- 3 is the formal FIR. 21. On the other hand, the accused appellants have also adduced the evidences and five witnesses have been examined who are as under: D.W.- 1 is Putul Turi. D.W.- 2 is Ram Chandra Sao. D.W.-3 is Shekhar Verma. D.W.- 4 is Vishal Gupta. He was also one of the accused. D.W.- 5 is Shyam Sunder Gupta @ Shyam Sunder Sao. He is also one of the accused of this case. 22. D.W.- 2 is Ram Chandra Sao. D.W.-3 is Shekhar Verma. D.W.- 4 is Vishal Gupta. He was also one of the accused. D.W.- 5 is Shyam Sunder Gupta @ Shyam Sunder Sao. He is also one of the accused of this case. 22. Apart from oral evidences adduced on behalf of the defence some documents have also been brought on record which are as under: Ext.- A is certified copy of FIR of Dhansar (Dhanbad) P.S. Case No. 422 of 2013 (G.R. Case No. 1674 of 2013), Ext.- B is the signature of the accused Shyam sunder Gupta on compromise petition, Ext.- B/1 is the signature of the informant and Sobha Verma on the compromise petitioner, Ext.- C is the certified copy of order dated 29.08.2013 of learned Judicial Magistrate in G.R. Case No. 1674 of 2013. Ext.- D is the certified copy of compromise petition in G.R. Case No. 1674 of 2013. 23. P.W.-1, is Sobha Verma and she is said to be the Bhabhi of the informant P.W.-2. She had proved her signature on the compromise petition which has been marked as Exhibit-1. From the perusal of Exhibit-1, it appears that there was an altercation between both the parties and for which on earlier occasion a case was instituted by the appellant people vide Exhibit-A and thereafter a case was instituted by the informant people vide Exhibit-3. Further, it also appears from the deposition of P.W.-1 that she has accepted in para-6 that after filing the compromise petition they had cordial relationship with the accused appellants. 24. P.W.-2, Sujit Kumar Verma is the informant of this case and the injury report of this witness totally falsifies his version. P.W.-2 has stated that the occurrence has taken place on 18.04.2013 whereas the injury report which has been filed on behalf of the prosecution reveals the fact that P.W.-2, Sujit Kumar Verma was medically examined on 27.04.2013 and only one simple injury was found. 25. P.W. 3 is Rajesh Kumar Verma. He is brother of the informant and he has stated that the occurrence is of 18-04-13 at about 9 P.M. and he was reading at the roof and he heard hullah and he saw from the roof that there was wrangle in between his father, brother and accused persons. 25. P.W. 3 is Rajesh Kumar Verma. He is brother of the informant and he has stated that the occurrence is of 18-04-13 at about 9 P.M. and he was reading at the roof and he heard hullah and he saw from the roof that there was wrangle in between his father, brother and accused persons. He got down from the roof then he saw Vishal with rod, Shyam with sword and Anil with lathi and all the accused persons all of a sudden has assaulted his brother. In his cross examination, he has admitted that Shyam Gupta had also lodged a case against him. 26. P.W.-4. Dr. Md. Fakruddin, is the doctor and he is said to have examined Sujit Kumar Verma, P.W.-2. From the deposition of the Docter, it appears that he had found the following injuries. 1. Sharp cut wound on scalp anterior to right parietal region measuring 3”x ¼” x scalp deep. Injury was simple in nature caused by hard and sharp substance on being beaten by someone. He has proved his writing and signature on the injury report, which has been marked as Ext.-2 and has opined that no one can die on such type of injury. In the cross-examination, this witness has stated that in the injury report the age of injury has not been mentioned nor he had seen the identity card of the injured Sujit Kumar Verma and thus the veracity and truthfulness of the injury report Exhibit-2, gets falsified in view of the fact that as per the version of P.W.-2, he was badly injured by the assault of the appellant people on 18.04.2013 but he has been examined after a delay of nine days i.e. on 27.04.2013 by the doctor and that too in a private nursing home and therefore the possibility of manufacturing the injury report cannot be ruled out and thus the basis and genesis of the whole prosecution case in order to constitute the offence under Sections 307 or 324 or even under Section 323 gets falsified. While P.W.-2 has stated vide para-8 in the cross-examination that the accused people had been assaulting him continuously by Talwar, Danda and Lathi. While P.W.-2 has stated vide para-8 in the cross-examination that the accused people had been assaulting him continuously by Talwar, Danda and Lathi. The delay and anomalies in the date of the fardbeyan and in lodging the formal F.I.R. and sending the same to the Court of learned C.J.M. also speak a volume against the genuineness and correctness of the case of the prosecution in view of the categorical order of the learned Court below passed on the basis of compromise between the parties in the case instituted by the appellant i.e. Exhibit-C. 27. Further the I.O. i.e. P.W.-5 Arbinda Kumar Dubey also did not explain any cogent reason for not mentioning the earlier case instituted by the appellants people against the informant which is Dhansar (Dhanbad) P.S. Case No. 422 of 2013 (Exhibit-A) while investigating the present case when he was I.O. of both the cases instituted by the appellant i.e. Exhibit-A and the present case which is instituted by the informant people against the appellants (Ext. 3). In para-10 he has stated that during the course of investigation he did not record the statement of any of the independent witnesses. Further, the version of the I.O. vide para-11 also does not corroborate the injury report given by the doctor P.W.-4, while the I.O. P.W.-5 has categorically stated in para-11 that the injuries which were found by him on the injured person P.W.-2 was not found by the doctor. This indicates that this injury report has been fully manufactured which also gets corroborated and substantiated that the injured P.W.-2 got injured as per the prosecution story on 18.04.2013 and he got medically examined on 27.04.2013 after the delay of nine days while this is the case of the prosecution that the injured informant P.W.-2 was incessantly beaten and assaulted by the appellant people by sword, lathi and danda. 28. Recapitulating the aforesaid depositions, the evidences and testimonies of the witnesses examined on behalf of the prosecution and the documentary evidences adduced on behalf of the parties as discussed elaborately in the foregoing paragraphs, it is well founded that the learned Court below has committed gross error in the appreciation of the evidences in the right perspective and there is no legal evidence to sustain the guilt of the accused persons namely; Shyam Gupta, appellant No. 1 and Anil Kumar Gupta @ Anil Gupta, appellant No. 2. 29. 29. In view of the aforesaid discussions and findings this Court comes to the conclusion that the impugned judgement of conviction and order of sentence both dated 18.03.2017 passed by the learned District & Additional Sessions Judge-II, Dhanbad in S.T. Case No. 551 of 2013 in connection with Dhansar (Dhanbad) P.S. Case No. 433 of 2013 corresponding to G.R. Case No. 1740 of 2013 is bad in law and fit to be set aside. 30. Accordingly, the impugned judgement of conviction and order of sentence both dated 18.03.2017 passed by the learned District & Additional Sessions Judge-II, Dhanbad in S.T. Case No. 551 of 2013, against both the appellants are hereby set aside. The appellants are acquitted. Since the appellants are on bail and therefore, they are discharged from the liabilities of bail bonds. 31. This appeal is allowed as above. 32. Let the Lower Court Records be transmitted to the concerned Court below along with a copy of this judgement.