Fagu Soren … v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.1014 of 2005 Fagu Soren …. Versus ……Appellant The State of Jharkhand ……Respondent ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellant For the State : Mr. Yogesh Modi, Advocate : Mrs. Kumari Rashmi, APP Order No.06/12.12.2024 …… This Jail Criminal Appeal No.1014 of 2005 had been instituted on the basis of Prisoner application dated 26.04.2005 sent by the petitioner-appellant Fagu Soren to the learned Registrar General of this Court through Jail Superintendent, Sub- Jail Ghatshila, which was forwarded through letter no.219 of 28.04.2005 by the Jail Superintendent, Sub Jail Ghatshila to the learned Registrar General leading to an institution of the present Criminal Appeal (J) No.1014 of 2005. 2. It transpires that above Jail Appeal No.1014 of 2025 was instituted on 24.08.2005 and it was placed on 24.08.2005 before the Co-ordinate Bench of this Court (Justice R.K. Merathia as
Legal Reasoning
then His Lordship was) and Mr. Yogesh Modi was appointed as the Amicus Curiae in this case. This above Jail Criminal Application was instituted on behalf of the appellant challenging the judgment of conviction and sentence dated 29.03.2005 passed by Sri A.K. Dutta, then learned Additional Sessions Judge, Ghatshila Civil Court in Sessions Trial Court 62 of 2001 (arising out of G.R. No. 318 of 2000) by which the appellant has been convicted for the offence under Section 307,326 of I.P.C and sentence to undergo for RI for seven years and RI for three years respectively. 1 3. The prosecution case, in brief, is that while the informant, Dhukhu Hansda on 06.08.2000 at about 02.00 P.M. was in his house alongwith his sons Rengta Hansda then the accused came in front of his house and started abusing the informant which was objected by the informant on which the accused had threaten the informant to kill him by his Farsa. Thereafter the accused took out his bows and arrows and threw an arrow towards the sky. It is further alleged that the accused used to throw arrows towards sky to stop the rain which used to be objected by the informant and also by villagers that the arrow may fall on any person from which any person can sustain injury, but the accused Fagu Soren did not stop such activities. It is further alleged by the informant that when he objected the accused from abusing him then the accused Fagu Soren came out from his hut with sword in his hand and inflicted sword blow on the head of informant Dukhu Hansda on which the informant fell down. The accused further inflicted sword-blow on the informant to cut the neck of informant and due to which he had sustained injuries on his left cheek and left shoulder. The son of the informant namely Remta Hansda seeing the assault on his father ran towards the field and on alarm the persons, who were working in his field, came there who had seen the occurrence and thereafter the accused Fagu Soren fled away. 4. Learned counsel for the appellant submitted that the appellant remained in custody for more than five years and he was taken into custody on the date of occurrence 06.08.2000 and remanded on 07.08.2000. It is submitted that the appellant was granted bail by the Co-ordinate Bench (Justice R.K. Merathia as then His Lordship was) of this Court on 07.09.2005 as he had remained in custody for more than five years. It is further submitted that he is not pressing the appeal in merit as the 2 appellant had already remained in custody for more than five years and hence, lenient view may be taken in favour of the appellant as he has faced long protracted trial for around twenty five years. 5. 6. Learned A.P.P raised no objection. It reveals that the F.I.R was lodged by the informant namely Dhukhu Hansda on 06.08.2000 against the appellant for the offences under Sections 307/324/326 of I.P.C for assaulting him by sword due to which he sustained grievous injury on his head, shoulder and cheek. 7. It transpires that the Police, after investigation, submitted the chargesheet against the appellant under Section 307,324,326 of I.P.C on 22.09.2000 before the learned A.C.J.M, Ghatsila and the learned A.C.J.M, Ghatisila had taken cognizance for the offences under Sections 341,323,324,325,307 of I.P.C on 09.01.2001 against the appellant. 8. After supplying the police papers to the accused person, the case was committed to the Court of Sessions. 9. Thereafter, the charges had been framed against the appellant on 18.11.2002 for the offences under Sections 326/307 of I.P.C and to which they pleaded not guilty and claimed to be tried. 10. During trial, the prosecution got examined seven (7) witnesses in support of its case, who are as follows:- (i) PW-1 is Dukhu Hansda (i.e. the informant), (ii) PW-2 is Ravi Soren, (iii) PW-3 is Vikram Soren, (iv) PW-4 is Salma Hansda, (v) PW-5 is Mangal Murmu, (vi) PW-6 is Sri Dhanpat Tudu, 3 (vii) PW-7 is Dr. Nawal Kishore Sinha 11. The Prosecution case in support of its case had marked the following Exhibits which are as follows:- (i) (ii) (iii) (iv) (v) Ext.1 is the Fardbeyan, Ext.1/1 is the Endoresement in the Fardbeyan of O/C Ext.2 is the Formal F.I.R, Ext.3 is Requisition of I.O, Ext.3/1 is Injury Report and (vi) Ext.4 is the Seizure list. 12. Thereafter, the appellant was examined under Section 313 of Cr.P.C on 19.03.2005 by the learned Court below and to when the appellant was confronted to the circumstances put forth before him then he admitted that he had assaulted the informant by his sword. 13. Neither any defence witness was examined nor any document marked as Exhibit. 14. Thereafter, the learned Court below, after considering the case of both the sides, has convicted the appellant as mentioned above and sentenced him on different grounds as mentioned above. 15. It reveals from the deposition of witnesses PW-1 Dukhu Hansda, who is the informant in this case but he had supported the prosecution case by stating that the appellant had assaulted him by sword in left side of his head and then he assaulted him at temple. During cross-examination, he stated that he was inside the house when he was assaulted, he has also admitted that the appellant was a Sadhu and used to trick with the villagers. He further admitted in Para 6 that he was not aware what was written 4 by the police personnel and thump impression taken by the Police personnel while he was unconscious. Thus, from evidence from PW-1 i.e. informant, it would appear that his thump impression was taken by the police while he was unconscious and he was not aware about the contents of F.I.R. Thus, on the one hand the Informant during the examination in chief has supported the allegations has made the FIR but on the other hand during cross-examination he admitted that he was not aware about the contents of the FIR as he was unconscious and his thumb impression was taken by the police in unconscious condition. 16. PW-2 is Ravi Soren who is a hearsay witness and stated that he had seen the appellant have armed with blood stain sword and the appellant was himself speaking to have assaulted the informant Dukhu Hansda, then he had gone to the house of informant and seen him in injured condition on his head and cheek and neck. During cross examination, he admitted that he had not seen the occurrence from his own eyes and he arrived at the place about 10.14 minutes, the clothes of the informant was full of blood stain and the police has not recorded his statement. Thus, from evidence of PW-2, it is evident that the PW-2 is a hearsay witness but he had seen the appellant with armed and blood stain sword. 17. PW-3 is Vikarm Soren who is a hearsay witness and stated that he had not heard the occurrence from one Dharmu Soren. During cross examination, he admitted that he had not seen the occurrence from his own eyes and he had arrived the at place of occurrence much after the occurrence. Thus PW-3 is also a hearsay witness. 5 18. PW-4 is Salma Hansda, i.e. wife of the informant, who is also a hearsay witness and stated to have not seen the occurrence but she was learnt about the occurrence from her villagers. Thereafter she arrived at the place of occurrence and had seen her husband in injured condition. Then, her husband had taken to Government hospital and from there he was taken to Singh Nursing Home. During cross examination, she admitted that she had not seen the occurrence from her own eyes. However, she arrived the occurrence at around 4:30 P.M. However, she has supported the case. 19. PW-5 is Mangal Murmu, who is also a hearsay witness and stated that he learnt about the occurrence from the informant then he arrived at the house of the informant and had seen him in injured condition. During cross-examination, he admitted that he had not seen the occurrence from his own eyes. Thus PW-5 is also a hearsay witness. 20. PW-7 is the Dr. Nawal Kishore Sinha, who examined the injured informant on 06.08.2000 and found the following injuries on his person :- (i) Sharp cutting wound on middle of head 3x2x1/2, (ii) Sharp cutting wound on left side of cheek 3x1x1/2, (iii) Sharp cutting wound on left side of back 3x1x1/2. He also proved he injury report of informant marked as Exhibit 3/1 and stated that Injury No.1 and No.2 were grievous in nature and the Injury No.3 was simple in nature and such above injuries cannot be caused by fall on earth. Thus, PW-7 has supported the injury of the informant. 21. PW-6 namely Sri Dhanpat Tudu is the Investigating 6 Officer of this case and stated that after receiving the information of some villagers then he went to Singh Nursing Home, at Ghatsila and found the informant Dhuku Hansda in injured condition then he recorded his statement and had taken his thumb impression. He proved the fardebyan marked as Exhibit-1. He also proved the formal F.I.R marked as Exhibit-2, and he also proved the endorsement on FIR marked as Exhibit-1/A. Then, he prepared requisition for sending the injured to the hospital including the requisition of injury report which was marked as Exhibit-3 and further proved the injury report marked as Exhibit 3/1. He further stated that the appellant had assaulted the informant by sword and hence he had arrested the appellant and seized the sword. He further prove the seizure list marked as Exhibit-4. Thereafter he had inspected the place of occurrence on 27.0.2000, and had seen some dried blood stain on the place of occurrence but it was not seized by him. Then, he recorded the statement of informant and statement of his wife and after recording the statement of witnesses he had submitted the chargesheet against the appellant. 22. During the cross-examination, he admitted that he had arrived at the place of occurrence on the next date of occurrence at around 12.00 noon at the instance of Chokidar. He admitted that he had not seized the blood found at place of occurrence and had not seized the blood stain clothes of the informant. Further, he admitted that he had not taken the signature of the accused- appellant on the seizure list. However, he had taken the signature of independent witnesses and he also put his signature on the seizure list which as marked as Exhibit-4. 23. Thus, from scrutinizing from I.O. that it is evident that he failed to prove the seizure of sword validly as the signature of the appellant was not taken on the seizure list. 7 24. Even the independent witnesses namely Samay Manjhi and Sitaram Namata had not been examined by the prosecution. 25. However, the appellant himself admitted during his statement recorded under Section 313 Cr.PC to the effect that he had assaulted the informant Dhuku Hansda by sword. 26. This Court finds that the appellant had admitted the assault. However, considering the fact that sword has not been properly proved and the injury were found grievous in nature and but not dangerous for life, conviction of the appellant is altered from Section 307 I.P.C to Section 326 IPC. Hence, the appellant is acquitted from under Section 307 of I.P.C. 27. However, the sentence of the appellant is affirmed under Section 326 of I.P.C. As the appellant is already served the sentence of around five (05) years. Hence, under the circumstances the appellant is convicted affirmed under Section 326 of I.P.C. by altering his conviction from Section 307 of IPC to 326 of IPC. 28. In view of the discussion made above the sentence of the appellant is modified to the extent that the period during which the appellant Fagu Soren remained in jail custody shall be period of the sentence. As the appellant is already on bail and hence he is discharged from the liabilities of his bail bonds. 29. Thus, this Criminal Appeal No.1014 of 2005 is allowed in part. 30. Let the entire original Lower Court Records along with copy of the judgment be sent to learned Court below for the needful. Nishant/- (Sanjay Prasad, J.) 8