…. 1. Kamdeo Rajak 2. Bhim Rajak 3. Wakil Rajak (All three are son v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.581 of 2005 …. 1. Kamdeo Rajak 2. Bhim Rajak 3. Wakil Rajak (All three are son of Laxmi Rajak.) 4. Pappu Rajak son of Sri Wakil Rajak All resident of village Jamua, P.S.+District-Jamtara ……Appellants Versus The State of Jharkhand ……Respondent ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellant For the State : Mr. Nityanand Pd. Choudhary, Advocate : Mr. Tarun Kumar, A.P.P …… ORAL JUDEMENT IN COURT Order No.07/20.12.2024 This Criminal appeal has been filed on behalf of the appellants namely Kamdeo Rajak, Bhim Rajak, Wakil Rajak and Pappu Rajak by challenging the judgment of Conviction and Sentence dated 12.05.2005 passed by Sri Indradeo Mishra, learned 2nd Addl, Sessions Judge (Fast Track Court), Jamtara in Sessions Case No.61/2003/41/2004 by which all the appellants have been found guilty for the offences u/s 341/34 and 307/34 of I.P.C. and sentenced to undergo R.I. for seven years each for the charge u/s 307 read with Section 34 of the IPC. They were further sentenced to undergo R.I. for one month each for the charges u/s 341 of IPC read with Section 34 of IPC. Both the sentences have been directed to run concurrently. 2. The fard-beyan of Rajendra Rajak was recorded by A.S.I. Ramasis Singh of Jamtara, P.S. on 27.02.2003 at about 11:30 a.m. in the Popular Nursing Home in male ward at bed no.2 stating thereon that on 26.02.2003 at about 6 pm when she goat of the 1 Informant entered into the wheat field and vegetables field of Kamdev Rajak and when his servant Raju Das went to caught the said she goat then accused Kamdev Rajak started abusing his servant Raju Das and assaulted him with slaps and fists. On halla when informant Rajendra @ Raju Rajak and his father Sukhdev Rajak went to the field of wheat and vegetables of Kamdev Rajak and protested as to why he is beating his servant. In the meantime Bhim Rajak, Wakil Rajak, Pappu Rajak also came there and started abusing the informant Rajendra Rajak hold his collar and started assaulting the informant. His father Sukhdev Rajak saved him. In the meantime, accused persons brought danda and Kudal from the side and Pappu Rajak came with rod and all the four accused persons started assaulting to his father with rod, danta and spade. When informant Rajendra Rajak wanted to rescue his father then Bhim Rajak gave spade blow with intention to kill the informant on his head. The accused persons caught hold the informant Rajendra Rajak and wanted to push in to well. When his mother Chinta Devi came and saved him then Kamdev Rajak assaulted his mother Chinta Devi with danta and his mother also received injuries. Thereafter, villagers came then accused persons fled-away. Blood was oozing from his head and he became unconscious then the peoples brought him at Popular Nursing Home, Jamtara where he was medically examined. Due to blood oozing he became very weak. His father was also hospitalized in the Popular Nursing Home. 3.
Legal Reasoning
Heard Mr. Nityanand Pd. Choudhary, learned counsel for the appellants and Mr. Tarun Kumar, learned A.P.P for the State. 4. Learned counsel for the appellants submitted that the 2 impugned judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eyes of law. It is also submitted that the learned Court below has committed grave illegality by convicting the appellants for the offence under Sections 307/34 and 341/34 IPC and sentence them to undergo R.I. for seven years each and R.I. for more than one month each respectively. It is submitted that no independent witnesses were examined by the prosecution and only the dependent witnesses were examined. It is submitted that the learned Trial Court failed to consider that a counter case has also been filed by the appellants in which the informant party had been made accused for the same occurrence. It is submitted that the learned Trial Court has also failed to consider that the deposition of the prosecution witnesses as well as the fardbeyan made in the F.I.R. because they deposed that in the course of assaulting, the villagers came thereafter the accused persons fled away, but none of the villagers came to support the prosecution case. It is submitted that the learned Trial Court failed to consider the medical examination of the injured person by P.W.-2 Dr. Sudarshan Kumar Gutgutia, who had not found any injury, which is dangerous for life to the injured persons, therefore section 307 of IPC is not attracted against the appellants. It is submitted that neither any weapon of assault was seized nor any blood stained shawl was sent for F.S.L for verification of the truth of the occurrence. 3 Hence, the impugned judgment and sentence may be set aside and the appellants may be acquitted. 5. Learned counsel for the State has opposed and submitted that the impugned order of conviction and sentence passed by the learned Court below is fit and proper and no interference is required. The learned Court below rightly convicted the appellants under Section 307/34 and 341/34 of I.P.C 6. It is submitted that the PW-1 namely Chinta Devi and PW-5 namely Sukhdev Rajak and PW-7 namely Raju Das were injured persons and they have fully supported the prosecution case and the injuries sustained by them. It is submitted that the PW-2 namely Dr. Sudarshan Kumar Gututia, who had examined and found the injuries true upon the injured persons. It is submitted that the PW-4 namely Rajendra Rajak is the informant and he has also fully supported this prosecution case. It is submitted that PW-6 namely Ramashish Singh who was I.O. in this case, has also corroborated the prosecution case. It is submitted that the blood-stained clothes marked as Exhibit-1,1/1 whereas the injury report of the injured were proved as Exhibit 1, 1/1, 1/2, 1/3 respectively. It is submitted that the Exhibit-4 is the formal FIR and Exhibit-5 and 5/1 are injury slips. It is submitted that Exhibit-3 is the fardbeyan and signature of informant on fardbeyan is marked as the Exhibit-2. Thus, the prosecution proved its case beyond shadow of all reasonable doubts. It is submitted that mere filing of counter case is no defence to the appellants. It is submitted that Exhibit-A, Exhibit-B and Exhibit-C are not reliable documents. Hence this 4 Criminal Appeal may be dismissed. 7. Perused the Lower Court Records and considered the submissions made on behalf of learned counsel for both the sides. 8. It transpires that the informant Rajendra Rajak had lodged the F.I.R against the appellants on 27.02.2003 for the offences under Sections 341/323/307/34 of I.P.C for the occurrence said to have taken place on 26.02.2003 at around 06.00 P.M. in the evening. 9. It transpires that the police had submitted the chargesheet against the appellants on 31.03.2003 before the learned C.J.M Jamtara under Section 341/323/307/34 of I.P.C. Thereafter, the learned C.J.M had taken cognizance against the appellants under Section 341/323/324/307/504/34 of I.P.C on 24.04.2003. 10. After supplying the police papers to the accused persons the case was committed to the Court of Sessions. 11. Thereafter, the charges had been framed against the appellants for the offences under Sections 341/34 and 307/34 of I.P.C on 15.09.2003 by the learned Sessions Judge, Jamtara to which they pleaded not guilty and claimed to be tried. 12. During trial, the prosecution got examined seven (7) witnesses in support of its case, who are as follows:- (i) PW-1 is Chinta Devi, (ii) PW-2 is Dr. Sudarshan Kumar Gututia, (iii) PW-3 is Pawan Razak, (iv) PW-4 is Rajender Razak (i.e. informant) (v) PW-5 is Sukh Deo Razak, (vi) PW-6 is Ramashish Singh, 5 (vii) PW-7 is Raju Das. 13. The prosecution case in support of its case got marked the following Exhibits which are as follows:- (i). Ext.1 to 1/1 is the Injury Report, (ii). Ext. 1/2 to 1/3 is the two X-ray reports, (iii). Ext.2 is the Signature of Informant on fardbayan, (iv). Ext.2/1 is the Signature of witness Gopal Rajak on fardbayan, (v). Ext.3 is the Entire Fardbeyan, (vi). Ext.4 is the Formal F.I.R, (vii). Ext.5 is the Injury letter of injured Sukh Deo Rajak, (viii). Ext.5/1 is the Injury letter of injured Rajendra Razak, 14. Apart from the prosecution further prove the Material Exhibit:- (i) Material Ext.-1 is the blood stained shirt of Sukh Deo Razak, (ii) Material Ext.-I/I is the blood stained towel of Sukh Deo Razak, (iii) Material Ext.II is the blood stained Chadar, (iv) Material Ext.II/1 is the blood stained Lungi, (v) Material Ext.II/2 is the blood stained Ganji, (vi) Material Ext.II/3 is the blood stained Pillow cover, (vii) Material Ext.II/4 is the blood stained one bedsheet. 15. Thereafer, the appellants were examined under Section 313 of Cr.P.C. on 15.02.2005 by the learned Court below and to which the appellants had denied the circumstances put forth before them. 6 16. The Defence in support of their case got examined two witnesses, who are as follows:- (i) D.W.-1 is the Sachida Nand Yadav, Advocate Clerk, (ii) D.W.-2 is the Bindeshwari Rai, Advocate Clerk. 17. The Defence got marked the following documents in support of their case, which are as follows:- (i) Ext.-A is the Fardbeyan in S.C. No.22/04/46/04 Substitute from original, (ii) Ext.-B is the F.I.R. in S.C. No. 22/04/46/04 substitute from original, (iii) Ext.-C is the Injury report of Kamdeo Razak, substituted from original S.C. No. 22/04/46/204, (iv) Ext.-C/1 is the Injury report of Thanda Devi, substitute from original of S.C. No.22/04/46/04, (v) Ext.D is the C/C of charge sheet Jamtara P.S. Case no.98/03, (vi) Ext.-E is the C.C of deposition of Dr. A. Sattar. 18. Thereafter, the learned Court below, after considering the case of both the sides, has convicted the appellants as mentioned above and sentenced them on different grounds as mentioned above. 19. It transpires that the PW-1 is Chinta Devi stated that her deceased husband Sukhdeo Rajak was assaulted by Kamdeo Rajak i.e. the Appellant No.1 and her husband was also assaulted by Bhim Rajak i.e. Appellant No.2 and Wakil Rajak i.e. the Appellant No.3 by rod, lathi and due to which her husband got sustained injury on his head, ribs, neck and chick. However, when her elder son Rajendra Rajak tried to save him then Bhim Rajak i.e. the 7 Appellant No.2 had also assaulted him by Kudal on his head due to which blood started oozing from his head and she also tried to save her son then she was assaulted by Kamdeo Rajak i.e. the Appellant No.1. Then her husband and son became unconscious then the accused person fled away by presuming to be dead. Then her husband was admitted to Gutgutia Nurshing Home, Jamtara and where he was treated. During cross-examination, she has shown unawareness of the Counter Case instituted by the defence side. She had admitted Kamdeo Rajak, Bhim Rajak and Wakil Rajak are own brothers i.e. the Appellant No.1, Appellant No.2 and Appellant No.3. she also could not name any villagers who had arrived at the place of occurrence. She also denied the suggestion that her husband and son got prepared and fractured of false report from Gutgutia Nursing Home. Thus, from scrutinizing the evidence of PW-1, it is evident that she has improved her version during her evidence which she had not stated before the police. She appears to be the hearsay witness. 20. It transpires that PW-2 is Dr. Sudarshan Kumar Gututia, who had examined the injured Sukh Deo Rajak and Rajendra Razak and had found as follows:- (i) On 26.02.2003 at about 11 P.M, he had examined Sukhdeo Razak aged about 50 years S/o Late Teju Razak of village Pattoria, P.S. Jamtara, Dist:- Jamtara and found the following injuries:- (i) Lacerated wound on the right side of scalp size 1/2x1/4, (ii) Lacerated wound on the face lacerated to right eye size 8 1x1/2x1/2. (iii) Lacerated wound on the top of right shoulder of 2 1/2x1/2x1/4 and also found pain and restriction of the movement in the shoulder. (iv) Lacerated wound on the back-left side 1/2x1/4. The injured was directed for X-ray of the chest, shoulder and the skull, Age of the Injuries:- within six hours, Cause of Injuries:- by hard and blunt object. The X-ray was held at the Popular Diagnostic Centre, Jamtara which is within my contact and supervision. He have given the finding upon the X-ray report that no bone lesion was found. (v) This injury report has been prepared by him which bears his signature – Ext.1 (ii) On the same night and time, he had examined Rajendra Razak, S/o Sukhdeo Razak of Village Pattajoria, P.S. Jamtara and found the followings:- (i) Lacerated wound on the scalp 3x1x up to bone deep with heavy bleeding with the lacerated margin. He had suggested for X-ray but no fracture was found in the said injury. Patient was brought in the State of unconscious and the pupil unequal at the time of examination which indicates the sign of head injury. (ii) Abrasion and contusion at the left forearm, one inch below the elbow – 1”x1” Age of injury :- within six hours. 9 Cause of injury :- by hard and blunt object may be by the blunt portion as Kudal. The nature of injury (ii) – grievous. (iii) This injury report has been prepared by me which bears my signature-Ext.1/1. (iii) The X-ray reports of the victim Sukhdeo Razak and Rajendra Razak have been prepared by me separately. Let it be marked Ext.1/2 and 1/3 respectively. (iv) It is imperative to mention that when both the victims were produced for treatment, information was sent to the police since it was a medico legal case and only on the requisition of Jamtara P.S. During cross-examination, he stated that he has received the police requisition of the victims on 27.02.2003, but he had already examined the victims in the night of 26.02.2003. The Jamtara police station is situated at the distance of about ½ K.M form my clinic. In the X-ray reports Ext.1/2 and 1/3 no boney fracture or lacerated of bones was found. He had admitted that the injured patients in his nursing home in the private capacity. Unconsciousness connotes the condition of a patient. It may be the effect of any injury. There is a government hospital at Jamtara, which is at about equal distance from the police station. The patients (injured) were not known to me from before. He had mentioned the identification marks of the injured. Those patients are not before him in the Court. He had realised his fee for the treatment and other treatment charges. He denied to have prepared forged certificates against the illegal consideration. Thus, from scrutinizing of doctor, it is evident that he had 10 examined the injured namely Sukhdeo Razak and namely Rajendra Rajak and has proved their injury reports as marked as Ext.1, Ext.1/1, Ext.1/2, Ext.1/3 respectively. However, he admitted that he was a private doctor. There was government hospital at Jamtara which is near the Police Station. 21. PW-3 is Pawan Rajak, who claimed to be the eyewitness of the occurrence and stated that the all the appellant had assaulted his father by lathi, rod and Kudal, when he and his brother tried to save his father then Bhim Rajak assaulted him by Kudal on his head due to which he sustained injury and become unconscious. Thereafter, the villagers came and saved their lives and Rajendra Rajak was admitted to the Gutgutia Nursing Home and where his father and mother were also brought. During cross-examination, he admitted that Kamdeo Rajak had also instituted the case upon them but he is not an accused. During cross-examination, he denied the suggestions that the he had not instituted the case before the police and the appellants had assaulted his father and brother by lathi, rod and kudal. He has shown unawareness about the head injury of the appellant No.1 i.e. Kamdeo Rajak. Thus, from scrutinizing, PW-3, it is evident that he had not arrived at the place of occurrence. 22. PW-4 is Rajendra Rajak, who is the injured and informant and has supported the prosecution case and stated that he and his father sustained injury at the hands of the appellants and appellant No.2 Bhim Rajak had assaulted on his head by Kudal due to which blood was oozing out and he had become unconscious at the place 11 of occurrence and then on regaining consciousness he had seen the police and his statement was recorded and he put his left thumb impression. Thus, the PW-4 has supported the injury on his person caused by Bhim Rajak. He also admitted that he was treated in Gutgutia nursing home for better treatment. He denied the suggestion for not having blood clotted at his cloth. Thus, PW-4 is the injured person and had sustained injury. He had also marked his Shirt marked as Material Exhibit-2, bedsheet marked as Material Exhibit-3, Lungi marked as Material Exhibit-2/2, Ganji marked as Material Exhibit-2/3 another bedsheet marked as Material Exhibit 2/5. 23. PW-5 is Sukhdeo Rajak, who also stated during his Examination-in-Chief against the appellants for assaulting the Sukhdev Rajak, who has supported the prosecution case on the point of assault sustained by him due to assault made by the appellants by Kudal, Lathi and rod. Thereafter, he and his son were brought to Gutgutia Nursing Home, Jamtara, where they were treated. The blood was clotted in their clothes, and he had brought the blood clotted cloth marked as Material Exhibit-1/1 in the Court. During cross-examination, he stated that he had gone before the Police Station at 02.00 AM in the night by Ricksaw and his son was admitted to Gutgutia Nursing Home, Jamtara and had become unconscious and on the next day at 10.00 in the morning he admitted that Raju Das had not sustained any injury. He was cross-examined at length and he had admitted in Para-21-22 that the blood stained cloth was not handed over to the 12 police. He also admitted that the accused person have also instituted case against him and he denied the suggestion for falsely got prepared the injury report from the private hospital. Thus, PW-5 is injured and had sustained injuries at the hands of the appellants. 24. PW-6 is Ramashish Singh, who is I.O. in this case and stated that he had seen the injured and he had proved the fardbeyan of Rajendra Rajak, which is marked as Exhibit-1. He further proved the formal F.I.R marked as Exhibit-2 and he further proved the requisition of Injury Reports of injured Sukhdeo Rajak and Rajendra Rajak marked as Exhibit-5 and Exhibit-5/1. Then he had inspected the place of occurrence and he submitted the chargesheet against the appellants. Thus, the PW-6 is the I.O. and has supported the prosecution case. 25. PW-7 is Raju Das, who is Chawkidar of that village and stated about the occurrence that while he was grazing the cattle then the Kamdeo Rajak abused him and started assaulted him then he raised alarm and Sukhdeo Rajak came but he was also assaulted by the accused persons and he admitted for not getting any injury. Thus, from the evidence of the prosecution witnesses namely PW-1 Chinta Devi, PW-4 Rajendra Rajak, PW-5 Sukhdeo Rajak, PW-6 Ramashish Singh and PW-7 Raju Das, it is evident that all the witnesses are family members of the Informant but this fact cannot be denied that both the injured Sukhev Rajak and Rajendra Rajak had sustained injuries on person which was found grievous in nature at left forearm and the injury on head was found to be simple. 13 26. However, the Conviction of the appellants is altered from 307/34 of IPC to Section 324 of I.P.C. 27. So far as the sentence is concerned as the appellant has remained in custody for some period and as such the period undergone by the appellant in jail shall be the period of sentence. 28. However, the appellants are directed to deposit of Rs.20,000/- under the Victim Compensation Scheme before the learned Court below i.e. and which may be handed over to the Informant i.e. the injured persons by informing through the DLSA, Giridih as well as PLV. 29. Thus, this Criminal Appeal (SJ) No.581 of 2005 is allowed in part. 30. Let the entire original Lower Court Records along with copy of the judgment be sent to the learned Court below for the needful. Nishant/- (Sanjay Prasad, J.) 14