High Court
Case Details
By Court Criminal Appeal (S.J.) No. 142 of 2020 [Against the judgment of conviction dated 16.01.2020 and order of sentence dated 18.01.2020 passed by learned Sessions Judge, Bokaro in Sessions Trial No.99 of 2007(S)] Omkar Yadav @ Onkar Yadav --Versus-- The State of Jharkhand .... .... …. Appellant …. …. …. Respondent For the Appellant For the State
Legal Reasoning
: Mr. Rohan Mazumdar, Advocate : Mr. Rajneesh Vardhan, A.P.P. ----- PRESENT HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY 1. This appeal is directed against the conviction dated 16.01.2020 and order of sentence dated 18.01.2020 passed by learned Sessions Judge, Bokaro in Sessions Trial No.99 of 2007(S) whereby and whereunder the appellant- Omkar Yadav @ Onkar Yadav has been convicted and sentence under Sections 148, 307/149 and 325/149 of the IPC. 2. As per the case of the prosecution, for last four – five years he along with others had been in cultivating possession of 5 acres of land and had also constructed a hut over it. On 27.06.2000, they had sown paddy over the said land. On 28.6.2000, in the morning at 10 AM, when he came to his agricultural field Mahesh Yadav, Medina Yadav, Lalkeshwar Yadav, Omkar Yadav, Madan Yadav, Gandhi Yadav, Vinod Yadav, Raghuvir Yadav and others objected to their farming of the said land. It is alleged that the accused persons started abusing them and with intention to cause death, assaulted informant as well as Nuru Mahato, Sadhu Mahato, Nepal Rajak, with lathi, danda and rod. As a result, they sustained critical injury. 3. FIR was lodged on the very next day at 16 hours on the basis of the fardbeyan of Narayan Rajak during the course of his treatment at BGH, Bokaro against seven named accused persons including the appellant and others. 4. After investigation, charge sheet was submitted against altogether 16 persons and the appellant was put on trial for offences under Sections 147, 148, 149, 323, 325, 380, 427 and 307 of IPC, after his case was split up from other accused. 5. Altogether 11 witnesses were examined on behalf of the prosecution and the documents, including the injury reports of Naryan Rajak, Naru Mahto and Sadhu Mahto were adduced into evidence and marked as exhibits. In view of the fact that it was a case of free fight, therefore, Section 149 IPC shall not apply. 1 6. Judgement of conviction and sentence has been assailed on the ground that the matter involved land dispute, which resulted in a free fight. Out of the three injured, Sadhu Mahato had sustained injury on the vital part of his body which was opined by the Doctor to be grievous in nature. Injuries sustained by others were simple in nature. 7. Injured Sadhu Mahato has deposed that he was given blow with an iron rod by Mahesh Mahto and not by this appellant. It is argued that one single blow cannot be said to be having the requisite intention to cause death. Therefore, offence of attempt to commit murder will not be made. 8. On the point of sentence, it is submitted that he is a farmer and there is no past conviction proved against him. He has already undergone more than eight months of imprisonment during trial and pendency of the appeal. 9. Learned APP has defended the judgment of conviction and sentence. It is submitted that in a preplanned manner, the accused persons in order to oust the informant party from settled possession of the land, by forming an unlawful assembly, assaulted them resulting in life endangering injury to one of the injured. 10. Law is settled that an act will amount to an attempt to murder if the act is such that if it is not prevented or intercepted, it would be sufficient to cause the death of the victim. To sustain conviction under Section 307 of the IPC, the intention to kill should be clearly proved by the circumstances like persistence of attack on vital part of the body. This Section clearly contemplates an act which is done with the intention of causing death, but, which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. Thus, the intention or knowledge of the accused must be such, as is necessary to constitute murder. 11. It is difficult to be persuaded by the argument advanced on behalf of the appellant that things developed on the spur of moment without any premeditation. Evidence on record suggests that the land dispute had been brewing for last four – five years. Before the incidence, the informant party had sown paddy seeds on the said land which became the immediate cause that triggered the incidence, on the very next day. Accused persons had come for the showdown and FIR was lodged against accused persons and charge-sheet has been submitted against 16 accused persons. Evidence shows that the informant party were assaulted in a preplanned manner by the accused persons who had formed an unlawful assembly. 12. There is however, substance in the argument that there was no intention to cause death, which will be evident from the fact that no sharp cutting deadly weapon 2 was used in the said incidence. Intention or knowledge is a mental element which can be ascertained only on the basis of the weapon used in assault, the part of the body on which the injury is inflicted and whether the assailant persisted with the assault. Two of the injured sustained grievous injuries on non-vital part of their body, whereas one of them sustained grievous injury on the vital part of the body. The accused persons did not persist and it was not a case of repeated below so as to draw an inference that they were actuated by desire to cause death. Under the circumstance, this Court is of the view that judgment of conviction under Section 307 of the IPC, is not sustainable and is accordingly, set aside. 13. More than one person was injured and as is stated above one sustained grievous injury and the others simple. Appellant is therefore, convicted for offence under Sections 148, 325/149 of the IPC. 14. On the point of sentence, there is no past proved conviction against the appellant and he has remained in custody for eight months and more than 23 years have elapsed since the incidence. On the manner of incidence informant party was assaulted in a preplanned manner in which three sustained grievous injuries, therefore this case is not fit for extending the benefits of Probation of Offenders Act. However considering the fact that the appellant has suffered protracted litigation for about 23 years a sentence of RI for two years and fine of Rs.5000/- under Section 325 and RI of one year under Section 148 of the IPC will meet the ends of justice. In case of default of payment of fine the Appellant shall undergo SI of one month. Substantive sentence to run concurrently. Bail of the appellant stands cancelled. Appellant is directed to surrender within three weeks of the order to serve the remaining part of the sentence. Appeal stands dismissed with modification of finding and sentence. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 25th April, 2024 AFR/Anit 3