The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (SJ) No. 1470 of 2003 (Against the judgment of conviction and the order of sentence, both dated 31.07.2003, passed by the learned 6th Additional Sessions Judge, Hazaribagh, in S.T. No. 224 of 2002/ 260 of 2002) 1. Karu Saw 2. Manoj Saw The State of Jharkhand Versus --------- ….. Appellants ….. Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants For the Resp.-State --------- : Ms. Chaitali Chatterjee Sinha, Amicus
Legal Reasoning
: Mr. V.S. Sahay, APP -------- 11/ 10.04.2023 Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and the order of sentence, both dated 31.07.2003, passed by the learned 6th Additional Sessions Judge, Hazaribagh, in S.T. No. 224 of 2002/ 260 of 2002, whereby the appellants were convicted under Section 323 of the Indian Penal Code; however, instead of sentencing, both the appellants were released under Section 3 of the Probation of Offenders Act after due admonition. 3. The prosecution case in brief is based upon the written report of the informant-Anand Saw wherein it is stated that on 04.11.2001 while he was doing the work of iron door of the house, then the appellants along with the wife of the appellant No.1 came and asked him that this land belong to the appellants so how can he do any work on their land, to which the informant replied that the land belongs to him, as a result of adverse possession. Upon hearing this it is alleged that Karu Saw, his son and his wife started hitting the informant with lathi and danda and assaulted the informant, due to which the informant sustained injuries and appellants also tried to press his neck with the intention to kill him. It is further alleged that they also put chilli powder into the eyes of the informant. In the meantime, the son of the informant, namely, Suresh Prasad came and tried to pacify the issue upon which it is alleged that the appellants also attacked Suresh Prasad and put chilli powder into the eyes of the son of the informant which caused a lot of burning sensation in his eyes. 4. Learned amicus for the appellants submits that altogether 2 seven witnesses were examined on behalf of the prosecution to support the charges. The defence also examined one witness being D.W.1-Mahabir Sao, who has proved the sale deed executed by one Roshan Ara with respect to one decimal of the land in question in favour of the wife of the appellant. Learned amicus submits that the appellants were falsely implicated in this case due to a land dispute existing between the parties. Even the learned trial court has held that the prosecution has not brought a chit of paper on record to show that the land belongs to them, whereas the appellants have adduced evidence to show that the said land belongs to the wife of the appellant no.1 and it was the informant who had trespassed into the land and constructing door on the said land. The informants have also not disputed the authenticity of Exhibit A which is the sale deed with respect to the said land which has been adduced in evidence by the appellants. In fact, it is the informant who are the aggressors in this case which was objected by the appellants and hence they have been falsely implicated in the instant case. None of the witness have been able to prove that there was any intention on the part of the accused persons to harm the informant. As a matter of fact, the appellants were only objecting the illegal construction being carried out by the informant on the land belonging to the appellants. In fact, the entire case is false and fabricated case, as a result of which the wife of the appellant was not chargesheeted by the police. Further, the injury report which is exhibit 1 and 1/1 shows that all the injuries sustained therein are simple in nature. Further, the informant was referred to an eye specialist but there is no report of the eye specialist that any foreign material such as chilli powder was found in the eyes of the informant or his son (P.W-5); so, nothing has been brought on record to prove the same. Further, all the witnesses i.e. P.Ws. 2, 3, 4 and 5 have stated that they were nearby to the place of occurrence and saw the occurrence but they themselves have stated which has also been recorded by the learned trial court that they made no attempt to seize the chilli powder. Further, they also did not make any effort to stop the occurrence which seems quite unbelievable and proves that the entire case is false and fabricated and has only been instituted because of land dispute existing between the parties. 3 Further, the I.O. did not turn up to give evidence after his examination in chief, and thereby the defence was deprived of its legal right to cross examining the I.O and thereby the evidence of I.O. (P.W.-6) was expunged, so in the absence of evidence of the I.O., the entire prosecution case fails as I.O. is a very vital witness in any case. The learned trial court has itself opined that none of the ingredients are made out by the prosecution to bring the case within the ambit of Section 307 of IPC against the accused persons. The learned trial court also held that the prosecution has failed to bring home the charges under Section 325 and 326 of IPC as none of the ingredients of Section 325 and Section 326 of the IPC were proved against the appellants. However, surprisingly without any basis and without assigning any reasons the learned trial court found the appellants guilty under Section 323 of the IPC. Though, how and in what manner the prosecution has been able to bring home the charges under Section 323 of the IPC, have not been stated by the learned trial court. The learned trial court has convicted the appellants under Section 323 of the IPC on mis-consideration of facts, as simple injuries can ever be caused by falling on the ground and specially when otherwise on all scores the prosecution has not been able to prove any of the charges against the accused persons, holding them guilty under Section 323 of the IPC is bad in law. The learned trial court has stated that in this case the appellants are guilty under Section 323 of the IPC which has maximum sentence of one year but held that since the case of the appellants can come within the purview of Section 3 of the Probation of Offenders Act so the learned trial court let them off with admonition. She lastly submits that such a view of the learned trial court casts a stigma on the appellants, specially when on the basis of evidence and observations made by the learned trial court it is apparent that the prosecution has failed to prove any of the charges against the appellants without reasonable doubts. Hence, impugned judgment and conviction dated 31.07.2003 in S.T. Case No. 224 of 2002/ 260 of 2002 is not sustainable in the eye of law and liable to be set aside and the appellants may kindly be acquitted from all the charges imposed upon them in the instant case. 4 5. Learned APP fairly submits that there is no error in the impugned judgment and the learned trial court has rightly convicted the appellants for the offence under Section 323 of the IPC and acquitted them from the charge of 326 and 307 of the IPC, as such, no interference is required. 6. Heard learned counsel for the parties and after perusing the LCR it appears that admittedly there was a land dispute, however, there is a categorical finding that the appellants were the aggressor as they went to the place of occurrence and committed offence. It may be a case of bonafide land dispute but this Court is of the view that there cannot be any justification to commit any offence. The learned trial court has meticulously dealt with the evidences, both oral and documentary, and came to the specific conclusion that neither Section 325 nor Section 326 of the IPC is attracted in this case; however, looking to the nature of offence and the injury held the appellant guilty for the offence under Section 323 of the IPC. The learned trial court has further, on the point of sentence has held that since it was a bonafide land dispute and the appellants are not habitual offenders, as such, instead of sentencing the appellants, the learned trial court has ordered that the appellants should be released after due admonition. 7. As a matter of fact, after going through the entire facts and circumstances it is held that the learned trial court has not committed any error either in convicting the appellants under Section 323 of the IPC or acquitting them under Sections 307 and 326 of the IPC. The learned trial court has further not committed any error in providing the appellants benefit of Probation of Offenders Act. 8. Learned amicus has failed to point out any error either in law or in fact, so as to interfere with the judgment passed by the learned trial court. As a result, the instant appeal stands disposed of without any interference with the judgment dated 31.07.2003, passed by the learned 6th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 224 of 2002/ 260 of 2002. 9. Let a copy of this order be communicated to the court below, and also to the Member Secretary, Jharkhand State Legal Services Authority for quantifying the fee of the learned Amicus appearing for the appellants. 5 10. Let the lower court record be sent to the court concerned forthwith. (Deepak Roshan, J.) Pramanik/