The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal No. 623 of 2017 ----- (Against the judgment of conviction dated 27.02.2017 and order of sentence dated 28.02.2017 passed in ST No. 125 of 2011 arising out of Barwadih P.S. Case No.09 of 2010 by the Court of Sri Anil Kumar Pandey, District & 3rd Additional Sessions Judge, Latehar) Sarhuli Bhuiyan --- --- Appellant The State of Jharkhand Versus ….... --- --- Respondent For the Appellant : Mr. Anil Kumar, Advocate For the State : Mr. Rajesh Kumar, A.P.P. PRESENT HON’BLE MR. JUSTICE NAVNEET KUMAR J U D G M E N T 05.02.2024 This appeal is directed against the judgment of conviction dated 27.02.2017 and order of sentence dated 28.02.2017 passed in ST No. 125 of 2011 arising out of Barwadih P.S. Case No.09 of 2010 by the Court of District & 3rd Additional Sessions Judge, Latehar whereby and where under the appellant has been convicted for the offence punishable under Section 324 and 307 of the IPC and has been sentenced to undergo R.I. for 3 years u/s 324 IPC and R.I. for 5 years and a fine of Rs.2000/- and a default sentence of R.I. for 3 months u/s 307 of the IPC. Both the sentences were directed to run concurrently. 2. The prosecution story as unfolded in the fardbeyan of the informant Bageshwar Yadav (P.W.3) is as under: On 03.02.2010 tracker guard Sarhuli Singh and the informant had gone to Betla Forest Area Compart-2 for supervision and Security in the said forest area by the order of the Forester Rameshwar Shukla. The informant’s nephew Vinay Yadav along with co-villager Satendra Ram was also present there. During patrolling at about 5 P.M. as soon as they were going through Bichhi Tongari Forest Area, they saw that 8-9 persons have cut the Sagwan Tree and were making pieces of Sagwan. Among them Sarhuli Bhuiyan, Satendra Bhuiyan, Surendra Bhuiyan, Sukat Bhuiyan, Birendra Singh, Budhiraj Singh, Sahdeo Singh were identified by them. The said persons started fleeing away after seeing the
Legal Reasoning
forest officials but Sarhuli Bhuiyan (Appellant) fired on the informant by 2 ‘Bharatua’ Gun due to which he received injury on his both knees and fell down. On raising hullah, all the thieves fled away towards south sides of forest along with ‘Aari’, ‘Tangi’ and other arms etc. The informant was brought to Primary Health Centre, Barwadih in injured condition by his colleagues and thereafter he was referred to Daltonganj Sadar Hospital. After treatment he returned to Betla Range Office at about 11 PM. The informant has claimed that said persons were committing theft of Sagwan wood from protected forest area and when the forest officials chased them they attacked with gun and injured him. 3. The fardbeyan of the informant was recorded by Si Lal Bahadur Ram on 04.02.2010 at about 5.30 o'clock at Betla Range Office. On the basis of fardbeyan Barwadih PS Case No 09 of 2010 dated 04.02.2010 Under Sections 379, 326 IPC, 27 Arms Act and 26/33 Indian Forest Act was registered at Barwadih. After investigation, charge-sheet was submitted against accused-persons including the present appellant for the offences Under Sections 379, 324, 326, 307/34 IPC, 27 Arms Act and 33/26 Indian Forest Act and accordingly cognizance for the said offences were taken against the accused- persons and thereafter the case was committed to the Court of Sessions. 4. Thereafter, charge against the accused persons including the appellant were framed for the offfence punishable Under Sections 379/34, 324/34, 326/34. 307/34 IPC, 27 Arms Act and 26/33 Indian Forest Act. The contents of the charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. 5. The defence of the accused-persons including the appellant Under Section 313 Cr.P.C. is that they are innocent and they have denied all the incriminating evidences adduced against them. 6. The learned court below after conducting the full-fledged trial acquitted all the other co-accused persons except the present appellant against whom the impugned judgment of conviction and order of sentence has been passed, which is under challenge. 7.
Legal Reasoning
Heard learned Counsel for the appellant and the learned A.P.P. for the State. Arguments advanced on behalf of the Appellants: 8. It is submitted on behalf of the appellant that altogether 7 witnesses have been in this case out of whom P.W.1 Rameshwar Shukla, P.W.2 Mangal Yadav have not supported the case of the prosecution and 3 as such no independent witness have supported the case of the prosecution and only on the basis of the statement of the informant (P.W.3) Bageshwar Yadav, the learned Trial Court has passed the judgment of conviction and order of sentence, which is perverse and not tenable in the eyes of law. The appellant has been convicted for the offence punishable under Section 307 and 324 of the IPC but there is no iota of evidence to substantiate the offence under Section 307 IPC and in this context it has been submitted on behalf of the appellant that there is charge against the appellant that he had injured the informant P.W.3 by way of fire arms but the Doctor P.W.4 (Dr. Chandra Shekhar Prakash), who has been examined on behalf of the prosecution did not support the case of the prosecution and categorically stated that no injury of fire arm is found on the person of the injured P.W.3 Bageshwar Yadav and thus the entire case of the prosecution gets falsified. It is further submitted that at most it is a case for the offence punishable under Section 324 IPC as the injury alleged to have been inflicted upon the injured/ informant P.W.3 is simple in nature and there is only one injury and neither intention nor knowledge to commit murder of the informant by the appellant is corroborated and hence the conviction for attempt to murder under Section 307 IPC is bad in law and fit to be set aside. Argument advanced on behalf of the State. 9. On the other hand, learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellant. He has submitted that although no independent witness have supported the case of the prosecution but the deposition of the injured-P.W.3 Bageshwar Yadav is sufficient to substantiate the offence punishable under Section 307 of the IPC along with section 324 of the IPC and there is no illegality in the impugned judgment of conviction and order of sentence. The learned court below has rightly relied upon the ruling of the Hon’ble Supreme Court in order to constitute offence punishable under Section 307 of the IPC as observed in the case of Parsuram Pandey and other Vrs. State of Bihar [(2004) 13 SCC 189] and there is no legal point to interfere in the impugned judgment of conviction and order of sentence and therefore, this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 10. Having heard the parties, perused the record of the case including the LCR. 11. In order to prove its case, prosecution has been able to examine 4 altogether 7 witnesses who are as under: 1. P.W.1-Rameshwar Shukla 2. P.W.2-Mangal Yadav 3. P.W.3-Bageshwar Yadav (informant) 4. P.W.4-Dr. Chandra Shekhar Prakash 5. P.W.5-Rameshwar Pd. Singh, I.O. 6. P.W.6-Ram Sarnagat Singh, I.O. 7. P.W.7-Lal Bahadur Ram,I.O. 12. It is found that the charges against the appellant were that he was committing theft in the protected forest area and when the forest officials intervened and chased, then the informant Bageshwar Yadav was attacked by ‘baratua gun’ and injured him. In order to prove its charge the prosecution has examined the doctor P.W.4 Chandra Shekhar Prakash, who has medically examined the informant P.W.3 Bageshwar Yadav on the same date of occurrence on 03.02.2010 and found the folliwng injuries on his person: (i) Lacerated wound on both knee joint Right leg- ¼ inch x ¼ inch Left leg – 1inch x ½ inch Nature of injury- Injuries are simple in nature caused by hard and blunt substance and the patient was referred to Sadar Hospital Daltonganj for best opinion. M/I – Old wound scar mark on the left cheek Age- Within 01 hours 14 minutes This injury report is in his writing and signature, he identifies the same which has been marked Exhibit 2. In the cross – examination Doctor has stated that injured person did not tell him how he received injury. Such type of injuries cannot be caused by fire arm. He has further stated that such type of injury can also be caused by falling on the ground. 13. From the deposition of the P.W.4 and injury report-Ext.2, it is well founded that there were only two injuries upon the body of the informant P.W.3, which were simple in nature. Further, it is found that no injury has been caused by fire arm gun whereas the allegation against the appellant is that he had shot with ‘Bharatua gun’ due to which the informant had received bullet injuries in both his knees but the Doctor P.W.4 did not find any gunshot injury and thus the case of the prosecution is not substantiated that the appellant had fired with ‘Bharatua gun’ at the informant due to which he received bullet injuries. 14. It is settled principal of law that in order to constitute offence punishable under Section 307 IPC, it is necessary that the intention and knowledge of the perpetrator for killing the victim must be inferred then 5 the offence of attempt to murder is substantiated. In the present case neither the intention nor knowledge is inferred in the absence of any gunshot injury caused to the victim or any recovery of gun or any incriminating material recovered from the place of occurrence to substantiate the intention and knowledge of the appellant to kill the victim P.W.3 15. In this context the learned A.P.P. appearing on behalf of the State has relied upon the observation of the learned trial court at para 18 of the impugned judgment which reads as under: “18. …………………….. The important thing as pointed out in Parsuram Pandey case (supra) is that nature of weapons used as it was dangerous i.e. a gun. In this case accused Sarhuli Bhuiyan fired at informant with the gun, it was matter of chance that the injury was causd not on the vital part rather it was caused on knee of both leg. This clearly shows that Sarhuli Bhuiyan did not fire open in the air rather he targeted informant at the time of shooting and in my opinion where any attempt is made by fire arm, targeting any person, the result or injury caused out of the using of fire arm is not important. As far as, the question of circumstances is that the assailant Sarhuli Bhuiyan was lashed with gun, it means that he was pre- determined that in case if any protest is being caused by forest officials in process of taking away sagwan wood, he will use the gun against them. It means that the assailant was not only having knowledge but he has also intention to kill the person who will make any protest in the act of carrying the sagwan wood out of the forest area. So in the facts and circumstances of the case there is no doubt that the offence of S. 307 IPC is constituted in this case against Sarhuli Bhuiyan.” In the present case, it is found that Lal Bahadur Ram, the Investigating Officer of the case examined as P.W.7, in his deposition has stated that he did not make any recovery of any sagwan wood or incriminating material in order to show cutting of sagwan tree by the appellant, as alleged by the prosecution. It is an admitted case of the prosecution that the Investigating Officer did not seize soil and cloth wet with blood nor sent the same to FSL for testing. It is also an admitted case of the Investigating Officer (P.W.7) that he did not seize any gun cartridges, gun powder etc. in order to substantiate that the appellant had fired from ‘bharatua gun’. It further appears that the injury which is said to have been inflicted upon the informant P.W.3 was not caused by fire arms, as per the opinion of the doctor P.W.4. Therefore, the evidences adduced by the prosecution do not substantiate the intention and knowledge of the appellant to murder the informant and therefore, placing reliance upon the observation of the learned trial court at para 18 of the impugned judgment by the learned A.P.P. is wholly extraneous, 6 not based on any cogent evidence brought on record by the prosecution. 16. From the deposition of the Doctor Chandra Shekhar Prakash (P.W.4) in his cross examination, it is categorically found that there was only one injury on both the knee joint of the informant (P.W.3), which was not caused by fire arm. Thus, in the absence of any cogent evidence regarding use of fire arm i.e., ‘bharatua gun’, the intention and knowledge of the appellant cannot be inferred in order to constitute offence punishable under Section 307 of the IPC. The other witnesses, who have been examined on behalf of the prosecution including own brother of the informant i.e., P.W.2 Mangal Yadav did not support the case of the prosecution by which the involvement of the appellant is substantiated in the commission of the offence, as the said witness has categorically stated that he did not see the occurrence. Similarly, P.W.1 Rameshwar Shukla also did not support the case of the prosecution rather he has stated that he had received information that informant Bageshwar Yadav has received bullet injury, which also got falsified because no bullet injury was found by the doctor P.W.4 during medical examination of the victim P.W.3. In his cross examination, P.W.1 has categorically stated that he did not see the occurrence. P.W.5 Rameshwar Prasad Singh, P.W.6 Ram Sarnagat Singh and P.W.7 Lal Bahadur Ram are police personnel and no material exhibit has been brought on record in order to substantiate the factum of the allegation, such as falling of the sagwan tree, any piece of sagwan tree allegedly cut by the appellant, any blood stained soil or gun or any cloth of the appellant having blood stain in order to substantiate the case of the prosecution. 17. In view of the aforesaid appraisal of the testimonies of the witnesses and evidences adduced on behalf of the prosecution, it is found that the charge under Section 307 IPC has not been substantiated against the appellant but the fact remains to be taken into consideration that from the deposition of P.W.3- injured informant and the Doctor P.W.4, it is found that P.W.3 has sustained two injuries, which are simple in nature, which is said to have been inflicted by the appellant and therefore, the learned Trial Court has committed gross error in holding the guilt of the accused / appellant for the offence punishable under Section 307 IPC. Rather, it is a case where the guilt of the accused is proved only for the offence punishable under Section 324 IPC. 18. In view of the discussion made in the foregoing paragraphs, this Court finds it just and proper, in the interest of justice to set aside the 7 judgment of conviction of the appellant for the offence punishable under Section 307 of the IPC and by upholding the conviction of the appellant for the offence punishable under Section 324 of the IPC. So far as the sentence under Section 324 IPC is concerned, it is found that the appellant has remained in jail for about 8 months 25 days and further since it is a case of the year 2017 and the fact that appellant has no criminal history, therefore no useful purpose would be served by sending the appellant again in the jail. Therefore, justice would be meted if the appellant is sentenced for the term of period already undergone by him and by enhancing the payment of fine to Rs.5000/- (Rupees Five Thousand only) by way of compensation to be given to the victim P.W.3 (Bageshwar Yadav). 19. Accordingly, the judgment of conviction dated 27.02.2017 and order of sentence dated 28.02.2017 passed in S.T. Case No. 125 of 2011 by the court of learned District and 3rd Additional Sessions Judge, Latehar, so far as conviction of the appellant for the offence punishable under Section 307 IPC, is set aside. However, his conviction for the offence punishable under Section 324 IPC is upheld by altering the order of sentence of imprisonment to the term of period already undergone by him in custody i.e., 8 months 25 days. However, appellant is directed to pay a fine of Rs.5000/- (Rupees Five Thousand only) by way of compensation to give it to the victim-P.W.3 (Bageshwar Yadav). 20. Since the appellant is on bail and therefore, a time of four months is given to the appellant to pay the aforesaid fine and in default of payment of fine he is directed to undergo imprisonment for a period of 1 year. The appellant may deposit the fine amount through the Nazarat of the concerned Civil Court in order to give it to the victim P.W.-3 Informant (Bageshwar Yadav), by way of compensation. 21. The learned Trial Court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, then he will serve the sentence as awarded in case of default of payment of fine by taking all necessary measures as per the provisions of law . 22. The appellant has been allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court and the moment appellant deposits the fine amount, he shall be released and discharged from the liabilities of bail bonds accordingly in this case. 23. The learned court below is also directed that on deposit of the said 8 fine amount by the appellant, a notice be sent to the victim P.W.-3 (Bageshwar Yadav) and on his appearance the said fine amount, if so deposited by the appellant, shall be disbursed to him. In case, the said victim is not traceable or not available or not found at the given address, or does not appear before the Court, the same shall be disbursed to the close or near relatives or kith and kin of the said victim or else, as the concerned learned trial court may deem fit and proper, and in this regard the Court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Latehar, if required and the Secretary, D.L.S.A., Latehar is directed to co-operate in this regard. 24. This Criminal Appeal is partly allowed. 25. Let the Lower Court Records and the copy of the judgment be also transmitted to the learned Court below for its compliance in letter and spirit. A.Mohanty (Navneet Kumar, J.)