1.Narayan Sah 2.Jagdish Sah 3.Mangan Sah 4.Karam Chand Sah v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 1209 of 2007 --------- 1.Narayan Sah 2.Jagdish Sah 3.Mangan Sah 4.Karam Chand Sah ..… Appellants Versus The State of Jharkhand ….. Respondent ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ---------- For the Appellants : Mr. Rama Kant Tiwari, Advocate For the State : Mr. Nehala Sharmin, Spl.P.P. --------- J U D G M E N T 05/07.02.2024 This Criminal Appeal has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 16.07.2007, in connection with S.C. Case No. 28 of 2002, arising out of Mahgama P.S. Case No. 66 of 2001 (G.R. No.449 of 2001), passed by Shri Subodh Kumar, the learned 4th Additional Sessions Judge (F.T.C.-I), Godda, whereby the appellants have been convicted for the offence under Section 323/34 of the I.P.C. and sentenced to pay a fine of Rs. 500/- each and in default of payment of fine each they have been directed to undergo one month S.I. for the charges under Section 323/34 I.P.C. 2. The prosecution case, in brief, is that the informant, namely Panchanand Sah, along with his brother Shiv Sah was sleeping on a Chowki in his house on 15.5.2001 separately then at around 11 p.m. four persons, namely Narayan Sah, i.e. Appellant No. 1, Jagdish Sah, i.e. Appellant No.2, Mangan Sah, i.e. Appellant No. 3 and Karam Chand Sah, i.e. Appellant 2 No.4 entered into the house and he woke up and there was light of lantern hung at a place and the said persons came near his chowki then he saw them and kept silence out of fear. Thereafter, all the four miscreants, after identifying his three brothers, started assaulting him and the informant was assaulted by Narayan Sah, i.e. Appellant No. 1 and Mangan Sah, i.e. Appellant No.3 by Garasa which caused slight injury on the right side of head over the ear and on the palm of left hand due to which he started raising alarm, then the said four persons started fleeing away. In the meantime, his elder brother Shiv Sah and younger brother Sadanand Sah awoke and they could also identify them. All four miscreants also threatened them of dire consequences. The informant sustained injury on his head and hand caused by Garasa and thereafter villagers came and he went to Mahagama Referral Hospital. It is also alleged in the F.I.R. that there was a land dispute with the accused persons and still some enmity is also going on due to certain minor disputes. 3.
Legal Reasoning
Heard Mr. Rama Kant Tiwari, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Spl.P.P. for the State. 4. It is submitted by learned counsel for the appellants that the impugned judgment of conviction and sentence is illegal, arbitrary and not sustainable in the eye of law. It is submitted that learned Court below has wrongly convicted the appellants for the offence under Section 323 of the 3 I.P.C.. It is submitted that P.W. 1, P.W. 2, P.W. 4 are the own brothers of the informant and as such they have supported the prosecution case under the influence of the informant and hence, their evidence is not reliable as they are interested witnesses. It is submitted that P.W. 5 is the Informant of this case and he has falsely implicated these appellants on false charges. It is submitted that P.W. 3 and P.W. 6, namely Bindeshwari Das and Lakhan Sah respectively have been declared hostile, whereas P.W. 7, P.W.8 and P.W.9, namely Bechan Das, Cycle Das and Bharat Das respectively are hearsay witnesses. It is submitted that P.W. 10, namely Vishwajeet Kumar Singh is the I.O. of this case, who has falsely submitted chargesheet against these appellants, whereas P.W. 11, namely Bhubneswar Singh, who had recorded the Fardbayan of the informant, is a formal witness. It is submitted that P.W. 12 is the Compounder of the Mahagama Hospital. It is submitted that Doctor, who had examined the informant, has not been examined and as such injury of the informant has not been proved. It is submitted that although the appellants were acquitted for the offence under Section 307 of the I.P.C. but they were wrongly convicted by the learned Court below for the offence under Section 323 of the I.P.C. and hence, judgment and sentence passed by the learned Court below may be set aside and the appellants may be acquitted. 5. On the other hand, learned Spl.P.P. has opposed the prayer and has submitted that the judgment of conviction and sentence are fit and proper 4 and no interference is required. It is submitted that the Court below has already taken a lenient view by acquitting the appellants for the offence under Section 307 of the I.P.C. and has convicted the appellant for the offence under Section 323/34 of the I.P.C. It is further submitted that P.W. 5, namely Panchanand Sah is the informant of this case who had sustained injury on his head and hand and he has fully supported the prosecution case. It is submitted that P.W.1, P.W. 2 and P.W. 4 namely Srikant Sah, Shiv Sah and Sadanand Sah respectively are the brothers of the informant and they have also fully supported the prosecution case regarding the manner of assault and had seen the appellants fleeing away. It is submitted that P.W. 7, P.W.8, P.W.9 namely Bechan Das, Cycle Das and Bharat Das respectively have also supported the prosecution case on the point of occurrence and they had taken the informant to the hospital. It is submitted that P.W.12, namely Nayeemuddin, who is the Compounder posted at Mahagama Hospital has proved the injury report regarding the injury on the person of the informant and had identified the writing and signature of the Doctor, namely Indradeo Singh, who had treated the informant at Mahagama Hospital. It is submitted that the P.W. 10, namely Vishwajeet Kumar Singh is the I.O. of this case, who has also supported and corroborated the prosecution case. It is submitted that the prosecution has successfully proved the charge under Section 323/34 I.P.C. against all the appellants, as the impugned judgment of conviction and sentence 5 may be upheld and the criminal appeal may be dismissed. 6. Perused the Lower Court Record of this case and considered the submission of both sides. 7. It transpires that the Informant- Panchanand Sah had lodged the F.I.R. on 16.5.2001, whereas the occurrence took place in the night of 15.5.2001. 8. Thereafter, the police after completion of investigation, had submitted chargesheet under Section 341/323/ 324/307/34 I.P.C. on 07.07.2001 before the C.J.M., Godda. Thereafter, learned C.J.M. Godda had taken cognizance under Sections 341/323/ 324/307/34 I.P.C. on 07.07.2001. 9. After supplying the police papers to the appellants, the case was committed to the Court of Sessions. 10. It transpires that the charges were framed against the appellants on 14.6.2002 by the then learned Sessions Judge, Godda under Section 341, 307/34 of the I.P.C. and to which the appellants pleaded not guilty and claimed to be tried. 11. The prosecution, in support of its case, got examined 12 witnesses, who are as follows: (i) P.W.1 is Srikant Sah-Brother of the Informant, (ii)P.W.2 is Shiv Sah-Brother of the Informant, (iii)P.W.3 is Bindeshwari Das, (iv)P.W. is Sadanand Das-Brother of the Informant, (v)P.W. 5 is Panchanand Sah, i.e. the Informant, (vi)P.W. 6 is Lakhan Sah, (vii)P.W. 7 is Bechan Das, (viii)P.W. 8 is Cycle Das, (ix)P.W. 9 is Bharat Das, co-villager, 6 (x) P.W. 10 Vishwajeet Kumar Singh, (xi) P.W.11 is Bhubneswar Singh, (xii)P.W.12 is Md. Nayeemuddin-then Compounder posted at Mahagama Hospital. 12. The prosecution, in support of its case, has got marked following documents as Exhibits, which are as follows. (i) Ext.1 is signature of the Informant on the Fardbayan, (ii)Ext.1/1 is signature of Shiv Sah on the Fardbayan, (iii)Ext.1/ 2 is signature of Srikant Sah on the Fardbayan, (iv)Ext.1/3 is the entire Fardbayan, (v) Ext.2 is the formal F.I.R., (vi)Ext.3 is Requisition of I.O. sent to the Referral Hospital, Mahagama for the examination of the injured, (vii)Ext.4 is the injury report of the Informant (P.W.5) 13. Thereafter, the appellants were examined under Section 313 Cr.P.C. on 25.7.2006 and to which they denied the circumstances put forth before them. 14. Although, no defence witness was examined on behalf of the appellants, however, the certified copy of the Khatian is marked as Exhibit.A on behalf of the appellants. 15. Thereafter the learned Court below, after hearing both the sides, has acquitted the appellants for the offence under Section 307/34 of the I.P.C. but has held the appellants guilty for the offence under Section 323/34 of the I.P.C. and has sentenced them to undergo on different counts as mentioned above. Hence, the discussion of the evidence of prosecution witnesses is necessary. 7 16. It transpires from the F.I.R. that the informant has claimed to have identified the appellants in the light of lantern, which was hanging in his house and all his brothers were sleeping at different places and the informant is said to have become injured having sustained head injury and injury in his hand and blood was oozing out. However, no lantern was produced during the trial. 17. P.W.1 is Shrikant Shah, who is the brother of the informant and stated during his evidence that while he was sleeping on the Verandaha near the Neem tree, then he awoke hearing the alarm of his brother Panchanand Sah (i.e. the Informant) and went there and saw that the appellants namely Narayan Sah, Jagdish Sah, Mangan Sah and Karam Chand Sah were fleeing away. He claimed that his brother was sleeping at a distance of 10 ft from his North and a lantern was burning and he had seen Garasa in the hand of Narayan Shah and Mangan Sah i.e. appellant No. 1 and appellant no. 3. He stated that his brother was assaulted by knife due to which he suffered injury over his ear and injury was also caused on his temple and even the mosquito net was slightly cut and his brother became injured and his brother was taken to Mahagama Hospital at night and his father Gurudev Prasad Shah had lodged the case. During cross examination he has stated that he has seen the accused appellants fleeing away from a distance of 10-15 ft. but he had not seen them causing injury. He also admitted that some minor dispute was going on between both the sides and the 8 informant is his own brother. However, all the brothers, including him do not live together and live separately and two brothers live together and they have been separated eight-ten years earlier. Although they live in the same house, but their kitchen is separated and the land has not been partitioned, however, they are keeping their income separately. 18. Thus, from scrutinizing the evidence of P.W. 1 it is evident that he had seen the appellant fleeing away. Although he claimed that he had seen that Mangan Shah, i.e. Appellant No.3 and Narayan Shah, Appellant No.1 had Garasa in their hands but his brother sustained injury caused by knife. He also admitted that his own brother was the informant and there is dispute between the informant side and the accused side with regard to land and as such evidence of P.W. 1 cannot be relied upon as he is an interested witness and he is living separately from his own brother. Even the father Gurudev Prasad Sah had not been examined. 19. P.W. 2 is Shiv Shah, who is also the brother of the informant and stated that while he was sleeping on the cot near Neem tree at his door and daughter was also sleeping. However, he woke up on the alarm of Panchanand Sah and saw that the appellants were fleeing away and he had also seen that Appellant No. 1 and Appellant No.3, namely Narayan Sah and Mangan Sah respectively were having Garasa and he had seen injury on the head and temple of the informant, who was sleeping at a distance of 10 ft. from him and had disclosed the 9 names of the appellants and stated that he was assaulted by Appellant No. 1 and 3 by Garasa. He also alleged that his sister was married in village Ekchari and which was broken due to acts of the appellants and for which there was dispute between the accused appellants and Panchanand Sah, i.e. the informant and for which this occurrence had taken place. During cross-examination he stated that the appellants belong to his village but they are not their Gotiya but they are their Maganman, i.e. Pattedar. He also stated that he had not seen them assaulting rather he had seen the appellants fleeing away with Garasa in the hands of Narayan Sah and Mangan Sah, i.e. Appellant No. 1 and Appellant No.3. He also stated that he had seen the appellants for the first time from a distance of 10-12 ft. and he had not tried to apprehend any appellants and he also stated that informant Panchanand Sah had sustained injury due to which his cloth was blood stained and he had become unconscious for about 10-15 minutes and thereafter, he was taken to the hospital and due to which there was blood stain also in his clothes. He also handed over his blood stained clothes and the blood stained clothes of his brother Panchanand to the Daroga, i.e. the Officer-in-Charge and although the Officer-in-Charge had kept his clothes but had not taken his signature. His statement was recorded by the Police in the hospital. He also admitted that the informant is his own brother. He also denied that the land of the accused appellants and their land do not fall in the same Parcha, rather they are in different 10 places. He has denied of giving false evidence and also denied of having any land dispute between the parties. 20. Thus, from evidence of P.W. 2, it is evident that he is also own brother of the informant and had seen the appellants fleeing away and had not seen the appellants causing any injury, but he claimed that blood-stained clothes of the informant and his own clothes were given to the police. He admitted that the informant Panchanand is his own brother. However, he denied any land dispute with the appellants. Thus, from the evidence of P.W. 2, it is evident that he is the own brother of the informant and is an interested witness and his evidence is contradicted even from the F.I.R. and evidence of the informant on the point of land dispute between the parties, hence his evidence is not reliable. 21. P.W.3 is Bindheshwari Das, who has been declared hostile by the prosecution and as such his evidence is not relevant to be considered. 22. P.W.4 is Sadanand Sah, who has been tendered by the prosecution and as such his evidence is not relevant. 23. P.W. 5 is the informant of this case and hence his evidence will be discussed later on. 24. P.W. 6 is Lakhan Shah, who is a formal witness and has stated that he had gone to hospital with the informant and he has also been declared hostile by the prosecution and hence the evidence of P.W. 6 is also not relevant. 11 25. P.W.7 is Bechan Das, who has been asked by the informant to accompany him to the hospital. Although, this witness, i.e. P.W. 7 has not been declared hostile but he has stated that the informant had not identified the persons who had assaulted him and he had learnt from the villagers that the informant had lodged the case against the appellants. During cross examination, he admitted for not giving any statement before the police. Thus, the evidence of P.W. 7 is also not reliable as he had not supported the prosecution case on the point of assault upon the informant by the appellants. 26. P.W. 8 is Cycle Das, who is a formal witness and had stated that he had taken the injured Panchanand Sah to the Mahagama Hospital by a Bullock Cart. During cross examination he had denied of working in the house of Panchanand, i.e. the Informant, but stated that the bullock cart belongs to Panchanand Sah and apart from this, he had stated nothing against the appellants and hence evidence of P.W. 8 is not reliable. 27. P.W.9 is Bharat Das, who is also a formal witness and stated that he had seen the informant in injured condition and he had accompanied the informant to the hospital but he has not stated anything against the appellants during his examination-in-Chief. 12 Thus, the evidence of P.W. 9 does not support the assault upon the informant as he had not spoken any word against the appellants. 28. P.W. 12 is Md. Nayeemuddin, who is the Compounder in the hospital and has proved the injury report of the informant marked as Ext. 4. During cross-examination he stated that injury report was not prepared during his presence. Thus, evidence of P.W. 12 is not reliable as he is a Compounder of the hospital and he is not competent to prove the injury report marked as Exhibit 4 and as such the evidence of P.W. 12 is not reliable. 29. P.W. 10 is the second I.O. of the case, whose evidence is like that of a Formal witness’s as he had merely stated that he had taken over investigation of this case from Officer-in-Charge on 18.6.2001 and investigation was already completed, then he perused the case diary and had submitted the chargesheet on the direction of S.D.P.O. on 20.6.2001. Apart from this he had stated nothing. Thus, the evidence of P.W. 10 does not show any complicity of the appellants against the informant as he has not even stated anything against the appellants rather he has simply submitted chargesheet under the direction of the S.D.P.O. and hence the evidence of P.W. 10 is not reliable. 30. P.W.5 is the informant of this case, who stated that while he was sleeping at the door of his house along with his two brothers and lantern was 13 burning, then the appellants, namely Narayan Sah, Jagdish Sah, Mangan Sah and Karam Chand Sah came there and he woke up and then Narayan Shah, i.e. Appellant No.1 and Mangan Shah, i.e. Appellant No.3 had assaulted him with Garasa on his head and near the right ear and also on his hand due to which he sustained injury and blood started oozing out. On alarm raised by him his brother Shiv Sah and Sadanand Sah, examined as P.W.2 and P.W. 4 respectively arrived there and then the appellants fled away and then he was taken to Mahgama hospital and his statement was recorded by the police. He has proved his signature and signature of his brothers on the written application marked as Ext.1, 1/1 and 1/ 2 respectively. During cross examination he admitted that apart from him other members of his house were sleeping outside the house and it was the occurrence of a dark night. He admitted that the accused persons are his Gotiya and his Grand father and the Grand father of the accused appellants were own brothers and the land of both sides are in the same Parcha and he has got land dispute with the appellants for about 5-6 years ago prior to the occurrence and one case was pending between both the sides at that time in Godda Court. A Panchayati was also held between the parties. He further stated that 10 days prior to the occurrence he had dispute with the appellants and he was threatened by the appellants and he had informed this matter to his other brothers, but he admitted that he had not stated this fact in the F.I.R. He also stated 14 that the Garasa was carried by only two persons and other accused, namely Jagdish Shah and Karam Chand Shah, Appellant No. 2 and Appellant No.4 were merely standing and had not been armed with anything, however, he had not shown his mosquito net to the police. 31. Thus, from scrutinizing the evidence of P.W. 5, it appears that he is a young boy of 20-21 years and has lodged this case against the appellants by showing previous enmity against the accused- appellants on account of land dispute. However, P.W. 2, who is the own brother of the informant had denied any land dispute. Even it is evident that his own brother, i.e. P.W. 2 and P.W.4 had not supported the allegation of assault upon the informant committed by the appellants. Apart from this, the informant claimed to have identified the appellants in the light of the lantern, but no lantern was produced at the time of his evidence or before the Court below by the two I.O.s, i.e. P.W.10 and P.W.11, namely Vishwajeet Kumar Singh and is Bhubneswar Singh respectively. Thus, the evidence of P.W.5 is also not reliable. 32. P.W. 11 is the first I.O. of this Case, Bhubneswar Singh, who has stated that he had recorded the Statement of informant-Panchanand Sah on 16.5.2001 in the Referral Hospital, Mahagama and had taken the signature of the witnesses, namely Shiv Sah and Shrikant Sah. Thereafter, he proved formal F.I.R. marked as Exhibit 2. Then he proved the 15 requisition report marked as Exhibit 3 and then he had recorded the statement of the witnesses. He further described the place of occurrence in Para 2 of his evidence and further stated in Para 3 that he handed over the investigation after recording the statement of witnesses and obtaining the injury report. During cross-examination he admitted that he had not seen any injury on the person of the informant and although he had mentioned his arrival at the hospital but has not mentioned the time of leaving the hospital in his case diary. He admitted that he had not seen any blood on the Chowki and on the soil and on the bed of the informant. He also admitted of not recording the statement of Ashok Das, who is at the West side of the boundary of the place of occurrence. He had also not investigated on the point of previous land dispute between the parties and also on the point of certain dispute in connection with a marriage. 33. Thus, from the evidence of P.W.11, it is evident that he admitted to have recorded the statement of the informant in the hospital but had not seen the injury. He had also not investigated on the point of previous dispute between both the sides. From perusal of Ext.3, i.e. Requisition slip it would appear that he had merely mentioned the bandage on the right side of the head and bandage on the palm of right hand. Thus, the injury report does not show injury, rather it shows bandage on the injury on the person of the informant. 16 Thus, the evidence of the Investigating Officer, i.e. P.W. 11 is not reliable as his investigation is perfunctory and even despite knowing previous land dispute between the parties, he had not examined the injured and even the appellants on this aspect and he had not taken the statement of any other person on this aspect. He had also not seized the lantern as claimed by the informant to be burning in his house and in the said lantern light the informant claimed to have identified the appellants. He had also not produced blood stained clothes of the Informant-P.W.5 and the injured P.W.2, namely Panchanand Sah and Shiv-Sah respectively 34. It transpires from Ext. A filed on behalf of the appellants that Ext. A is the certified copy of the Khatian of Jamabandi No. 10 of village Sekuchak, however, the learned Trial Court has not considered the same as it was the defence of the appellants that as there is land dispute between both the sides, the informant has falsely implicated the appellants. 35. Thus, the evidence of prosecution witnesses are not reliable and injury on the person of the informant is not proved, however, the informant had deliberately implicated the appellants. 36. It is further evident that there is no eye witness of the occurrence although there are several persons including P.W.1, P.W. 2, P.W.3 and P.W. 4, namely Srikant Sah, Shiv Sah, Bindeshwari Das and Sadanand Sah respectively residing near the house of the informant but they have not seen the appellants assaulting anyone in the light of the lantern. 17 37. It is further evident that the police had not produced the blood-stained clothes of the informant and also the blood stained cloth of P.W. 2, namely Shiv Shah before the learned Court below to substantiate the cut injury sustained by the informant on his person due to alleged assault caused by the appellants. 38. Thus, in view of the discussions made above, it is evident that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of all reasonable doubts and hence, conviction and sentence of the appellants under Section 323/34 I.P.C. is illegal, arbitrary and not sustainable in the eye of law. 39. Accordingly, the impugned judgment of conviction and sentence dated 16.07.2007, in connection with S.C. Case No. 28 of 2002, arising out of Mahgama P.S. Case No. 66 of 2001 (G.R. No.449 of 2001), passed by Shri Subodh Kumar, the learned 4th Additional Sessions Judge (F.T.C.-I), Godda is set aside and the appellants, namely Narayan Sah, Jagdish Sah, Mangan Sah and Karam Chand Sah are acquitted for the offence under Section 323/34 I.P.C. and they are also discharged from the liabilities of their bail bonds. 40. Let a Copy of this judgment be sent to the learned Court below along with the Lower Court Records at once. Jharkhand High Court, Ranchi Judgement on 7th February, 2024 A.F.R./s.m. (Sanjay Prasad, J.)