1.Sukh Narayan Bhagat 2.Shib Narayan Bhagat 3.Jairam Bhagat @ Jai Narayan Bhagat v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 478 of 2008 1.Sukh Narayan Bhagat 2.Shib Narayan Bhagat 3.Jairam Bhagat @ Jai Narayan Bhagat Versus …… Appellants The State of Jharkhand ……. Respondent ------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellants For the State -------- : Mrs. Nivedita Kundu, Advocate : Mrs. Nehala Sharmin, Spl.PP ------- Oral Judgment in Court 07/Date:19th July, 2023 1. This Cr. Appeal (SJ) No.478 of 2008 has been filed on behalf of the appellants challenging the judgment of conviction and order of sentence dated 18.02.2008 passed in S.T. No.7 of
Legal Reasoning
2002 (arising out of Sanha P.S. Case No.42/2000, corresponding
Legal Reasoning
to G.R. No.250/2000) by Sri Shiv Kumar Yadav, learned Additional District and Sessions Judge-I, Lohardaga by which the appellants have been convicted for the offence under section 341 and 323/34 of the I.P.C and have been released after due admonition under section 3 of the Probation of Offenders Act. 2. The prosecution case, as per the FIR, is that the appellants including Debram Bhagat had assaulted the informant on the question of ploughing the land. 3. Learned counsel for the appellants has submitted that she is not pressing this appeal with respect to the appellant nos.1 namely Sukh Narayan Bhagat and appellant no.3 namely Jairam Bhagat @ Jai Narayan Bhagat but she is pressing this appeal on behalf of the appellant no.2 i.e. Shib Narayan Bhagat. 4. Learned counsel appearing for the appellant no.2 has submitted that the impugned judgment of conviction and sentence passed by the learned court below is illegal and not 2 sustainable in the eye of law. It is submitted that there is delay in lodging the FIR. It is submitted that the injury report is concocted as the occurrence took place on 11.08.2000 whereas injured was examined on 13.08.2000 but the injury report given by the doctor reveals that the age of injury is within 6.00 hour which is not possible. It is submitted that there are several contradictions in the evidence of the prosecution witnesses as they claimed to be eye witnesses though they are hearsay witnesses. It is submitted that P.W-6 is the doctor who has found injury on the person and has issued the injury report under the influence of the informant. It is submitted that the P.W-5 is the I.O, who has made perfunctory investigation and hence the impugned judgment of conviction and order of sentence may be set aside, so far as appellant no.2 is concerned. 5. On the other hand, learned Spl. PP has submitted that the impugned judgment of conviction and order of sentence are fit and proper and therefore no interference is required. It is submitted that the learned court below has taken lenient view by releasing the appellants on admonition. It is further submitted that the P.W-1, P.W-2, P.W-3 and P.W-4 and P.W-7 namely Kumari Devi, Satya Narayan Bhagat, Jitram Bhagat, Mohini Devi and Anita Kumari have supported the allegation of assault against all the appellants. It is submitted that the P.W-6 namely Dr. Sunil Minz is the doctor who has found the injury on the person of the informant i.e. P.W-2. It is submitted that P.W-5 namely Abdul Zalil is the I.O of this case who has submitted charge sheet against the appellants and has supported and corroborated the evidence against the appellants including the appellant no.2 namely Shib Narayan Bhagat and hence there is no merit in this appeal and instant Criminal Appeal may be dismissed. 3 6. Perused the Lower Court Record and considered the submissions of the learned counsel for both the sides. 7. The police submitted charge sheet under sections 323, 324, 341 and 307/34 of the I.P.C on 26.11.2001 against the appellants and accordingly the learned C.J.M, Lohardagga has taken cognizance against the appellants under sections 323, 324, 341 and 307/34 of the I.P.C. 8. Thereafter the police papers was supplied to the appellants and the case was committed to the Court of Sessions 9. Thereafter, on 22.03.2003 the charges were framed against the appellants for the offence under section 307, 341, 324 of the I.P.C by learned Additional District and Sessions Judge-I, Lohardaga and to which they pleaded not guilty and claimed to be tried. 10. It transpires that prosecution has got examined eight (08) witnesses, who are as follows: (i) (ii) P.W-1 is Kumari Devi, P.W-2 is Satya Narayan Bhagat i.e. the informant, P.W-5 is Abdul Zalil is the I.O, (iii) P.W-3 is Jitram Bhagat, (iv) P.W-4 is Mohini Devi, (v) (vi) P.W-6 is Dr. Sunil Minj, (vii) P.W-7 is Anita Kumari and (viii) P.W-8 is Harihar Bhagat. 11. The prosecution has got marked the following documents in support of its case, which are as follows:- Exhibit-1 is the Signature of informant on Fardbeyan, (i) (ii) Exhibit-2 is the Fardbeyan and (iii) Exhibit-3 is the injury report of Satya Narayan Bhagat i.e. the informant. 12. Thereafter the appellants were examined under section 313 Cr.P.C on 13.12.2007 by the learned Additional District and Sessions Judge-I, Lohardaga and to which they denied the circumstances put forth before them. 4 13. Thereafter the defence has got examined two documents as Exhibits, which are as follows:- Exhibit-A-Carbon copy of S.A.R Case No.235/79-80 (i) (order passed on 26.02.81/28.02.81) (ii) Exhibit-B-Carbon copy of S.A.R Case No.235/79-80 (order dated 07.03.1981) 14. Thereafter the court below has acquitted the appellant nos.1, 2 and 3 namely Sukh Narayan Bhagat, Shib Narayan Bhagat and Jairam Bhagat @ Jai Narayan Bhagat under section 307 of the IPC but convicted all the appellants for the offence under section 341 and 323/34 of the I.P.C and but directed them to be released on admonition. 15. P.W-1 is Kumari Devi, who has tried to support the prosecution evidence and submitted that all the appellants had assaulted her husband. However, during cross examination she has stated that she arrived at the place of occurrence after 20 minutes on raising alarm. Thus, it is evident that P.W-1 is not the eye witness of the occurrence. 16. P.W-2 is Satya Narayan Bhagat who is informant of this case, has proved the signature of the FIR and tried to support the prosecution case. However, during cross-examination he has admitted that there was previous dispute between both the sides with regard to land in question and he also admitted that after two days of the occurrence the police had taken his signature on the fardbeyan and on the seizure list. Thus, the evidence of P.W-2 is also not convincing and he is an interested witness and hence his evidence is not reliable. 17. P.W-3 is Jitram Bhagat who has claimed to be an eye witness of the occurrence. However, during cross examination he has stated that he arrived at the place of occurrence then he found that several persons have assembled there. Thus, P.W-3 does not appear to be eye witness of the occurrence as he had arrived later on and hence his evidence is also not reliable. 5 18. P.W-4 is Mohini Devi who has stated during her evidence that she had arrived at the place of occurrence on hearing alarm and police has not recorded her statement and she is giving evidence for the first time. Thus, the evidence of P.W-4 is not admissible as she is giving evidence for the first time in the Court. 19. P.W-6 is the doctor who has found the following injuries on the persons of the injured, which are as follows: “(i) Lacerated wound on the last perital bone region 4” x 1/1” x 1” margin irregular, clotted blood present on the margin. (ii) margin irregular with clotted blood. (iii) auxiliary line 3” x 4”. Lacerated wound on left eye-brow-2” x ½” x ½” Bruise on left side of chest 2” below auxila on mid The doctor has opined that the injuries are simple in nature. During cross-examination, he has also admitted that the injuries are not dangerous to life. 20. Thus, from scrutinizing the evidence of P.W-6 i.e. doctor it is evident that he has treated the injured on 13.08.2000 instead of 11.08.2000 and therefore, there is doubt on the injury report placed on behalf of the informant as the injured was not examined on the same day when the occurrence had taken place. Even the doctor has stated that the age of injuries is within 6.00 hours which is also not believable in view of the fact that the occurrence had taken place on 11.08.2000 at 7.00 p.m. whereas injury report marked as Exhibit-2 reveals that the injured was examined on 13.08.2000 at 1.30 a.m. Thus, Exhibit-3 appears to be concocted by the informant. 21. P.W-7 is Anita Kumari who has supported the prosecution case during her evidence. However, during cross examination she has admitted that she learnt about the place of occurrence from her father. Thus, it is evident that she is also not an eye witness of the occurrence and hence her evidence is not reliable. 6 22. P.W-8 is Harihar Bhagat who has been declared hostile by the prosecution. 23. Thus, it is evident that save and except the informant, there is no eye witness of the informant. However, it appears that the injury report appears to be fake and concocted and has been made at the instance of the prosecution. 24. P.W-5 namely Abdul Zalil is the I.O of this case. Though he has stated that he has submitted charge sheet against the appellants but he has not seized the blood stained cloth and also not mentioned the same even in the case diary. It further transpires from the evidence of the I.O that he has merely obtained the injury report of the injured from the doctor but he has not sent the injured for his medical examination. 25. Thus, it is evident that the informant has obtained the injury report from the doctor on his own and injury report has not been obtained by I.O. 26. In view of the above, the conviction and sentence of the appellant no.2-Shib Narayan Bhagat for the offences under section 341 and 323/34 of the I.P.C is set aside and the appellant no.2 namely Shib Narayan Bhagat is acquitted for the offences under section 341 and 323/34 of the I.P.C. 27. Thus, the Criminal Appeal (SJ) No.478 of 2008 is allowed in part so far as the appellant no.2 is concerned and the appeal is hereby dismissed with regard to the appellant no.1 and appellant no.3 namely Sukh Narayan Bhagat and Jairam Bhagat @ Jai Narayan Bhagat. 28. Let the L.C.R be sent back to the learned court below at once. Saket/- (Sanjay Prasad, J.)