1.Santosh Thakur @ Pahalwan 2.Shambhu Yadav 3.Saroj Yadav v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 1086 of 2008 ------ 1.Santosh Thakur @ Pahalwan 2.Shambhu Yadav 3.Saroj Yadav Versus …… Appellants The State of Jharkhand …… Respondent PRESENT CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Appellants For the State ----- : Mr. Rajesh Kumar, Advocate : Ms. Apurwa Pathak, Advocate : Mr. Kamdeo, Advocate : Mr. Manoj Kr. Mishra, A.P.P. ------ Oral Judgment/Dated:02.05.2023 1. This Cr. Appeal (SJ) No.1086 of 2008 has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 08.07.2008 passed by Sri Kaushal Kishore Jha No.1, learned Additional Sessions Judge, F.T.C-II, Bokaro in S.T. No.67 of 2003 (arising out of Harla P.S. Case No.126 of 2000, G.R. No.1362 of 2000) by which the appellants have been convicted for the offences under sections 341, 323, 324/34 of the I.P.C, however, instead of awarding imprisonment of sentence, the appellants have been directed to be released under section 4(1) of Probation of Offenders Act 1958 by filing a probation bond of Rs.5,000/- (Five Thousand) with one surety for one year by each convict to maintain peace and tranquility in the society and to be of good behaviour. 2. The prosecution case, in brief, is that on 29.12.2000 at 4.00 p.m. the accused appellants namely Shambhu, Pahalwan @ Santosh Thakur and Saroj Yadav called him on the turning of Sector-9B, Street 17 and where appellant no.2 i.e. Shambhu assaulted him by sword on the back portion of his head, appellant 2 no.3 i.e. Saroj Yadav assaulted him with wicket on left knee and one Babulal Yadav assaulted him on right eyebrow with butt of the gun due to which he fell down on sustaining injuries. Thereafter all the appellants assaulted him indiscriminately by lathi and after hearing hulla his brother Raghvendra Pratap and Surendra Pratap came there but the accused persons-appellants also assaulted them with sword and lathi. It is further alleged that when Maheshwari Kumari i.e. the sister of the informant came there then appellant no.2 i.e. Shambhu Yadav assaulted her by lathi on her left knee. It has been stated that the accused persons had jealousy on account of cricket match hence they assaulted him. On the basis of fardbeyan of the informant the police instituted Harla P.S. Case No.126 of 2000 for the offences under sections 341, 323, 324 and 307/34 of the I.P.C on 29.12.2000. 3. Thereafter the police submitted charge sheet under sections 341, 323, 324, 325 and 307/34 of the I.P.C against the appellants namely Santosh Thakur @ Pahalwan, Shambhu Yadav and Saroj Yadav. 4. Thereafter the learned C.J.M, Bokaro has taken cognizance against the appellants under sections 341, 323, 324, 325 and 307/34 of the I.P.C on 08.03.2001. 5. After supplying the police papers to the appellants the case was committed to the Court of Sessions. 6. The charges were framed against the appellants under
Legal Reasoning
sections 341, 323, 324, 307/34 of the I.P.C on 08.04.2004 by Sri Jai Prakash Narayan Pandey, learned Additional Sessions Judge, F.T.C-II, Bokaro and to which the appellants pleaded not guilty and claimed to be tried. During pendency of the trial one of the accused person 3 namely Bhagwat Yadav had died and as such the proceeding was dropped against him vide order dated 19.03.2007 by the learned court below. 7. During trial the prosecution got examined four (04) witnesses, who are as follows: (i) P.W-1 is Surendra Pratap Choudhary @ Nakku Choudhary i.e. the informant, (ii) P.W-2 is Harendra Pratap Choudhary i.e. the brother of the informant, (iii) P.W-3 is Raghvendra Pratap Choudhary i.e. the brother of the informant, (iv) P.W-4 is Dr. Purnendu Kumar Pandey. 8. The prosecution got marked following documents in support of its case, which are as follows:- (i) Exhibit-1 is the Fardbeyan, (ii) Exhibit-2 to 2/2 are the is the injury reports and (iii) Exhibit-3 is the formal F.I.R. 9. Thereafter the appellants were examined under section 313 Cr.P.C on 17.06.2008 by the learned Additional Sessions Judge, F.T.C-II, Bokaro and to which they denied the circumstances put forth before them. 10. Neither any defence witness was examined on behalf of the appellants nor any document was marked as exhibit on behalf of the appellants. 11. Thereafter hearing both the sides, the learned court below has convicted the appellants for the offences under sections 341, 323, 324/34 of the I.P.C. However, on the point of sentence the learned court below gave them the benefits of the provisions of section 4(1) of Probation of Offenders Act 1958 by filing a probation bond of Rs.5,000/- (Five Thousand) with one surety for 4 one year by each convict to maintain peace and tranquility in the society and to be of good behaviour. Hence the present Criminal Appeal has been filed. 12. Learned counsel appearing for the appellants has submitted that the impugned judgment of conviction and sentence passed by the learned court below are illegal and not sustainable in the eye of law. It is submitted that the learned court below has not properly appreciated the evidence of the prosecution witnesses. It is submitted that the learned court below has failed to take notice that only interested witnesses have been examined on behalf of the informant. It is submitted that the I.O of this case has not been examined. It is further submitted that the injury reports marked as Exhibit-2 to 2/2 shows that the injuries sustained upon by the injured are simple in nature and as such it is submitted that without looking into the X-Ray Plate the conviction has been made under section 324 of the I.P.C. However, learned counsel for the appellant has also submitted that the appellant had also furnished bonds on the date of judgment and sentence. It is submitted that P.W-2 namely Harendra Pratap Choudhary and P.W-3 namely Raghvendra Pratap Choudhary are own brothers of the informant and they are the interested witnesses and hence lenient view may be taken. 13. On the other hand, learned A.P.P has submitted that the judgment of conviction and sentence passed by the learned court below are fit and proper and no interference is required. It is submitted that the appellants had assaulted the informant and his brothers and sister and as such the learned court below has rightly convicted them. It is submitted that the informant has sustained cut injury whereas P.W-2 namely Harendra Pratap Choudhary and P.W-3 namely Raghvendra Pratap Choudhary have also sustained 5 injuries on their person and the injury in the person of P.W-2 is grievous in nature and as such no illegality has been committed by the learned court below while convicting the appellants for the offence under section 324 I.P.C also. It is further submitted that non-examination of I.O is not fatal in each and every case. It is submitted that P.W-1 is the informant himself whereas P.W-2 and P.W-3 are the full brothers who had also sustained injury and are the eye witnesses. It is submitted that the P.W-4 is the doctor who has examined the informant and the other injured persons as per the injury reports marked as Exhibit-2, Exhibit-2/1and Exhibit- 2/2 respectively and as such no illegality has been committed by the learned court below while convicting the appellants as mentioned above. It is further submitted that this appeal has become infructuous since the appellants have already furnished the probation bond for a period of one year which has already expired. 14. Perused the Lower Court Records and considered the submissions made on behalf of the learned counsel for both the sides. 15. From appreciation of the evidence of P.W-1, it transpires that the appellant no.3 namely Saroj Yadav took the informant to his house Sector-9 and demanded the calculation of Cricket Tournament and where the other persons namely Shambhu Yadav i.e. appellant no.2, Pahalwan @ Santosh Thakur i.e. appellant no.1 and Babulal Yadav who were having arms. Shambhu was having armed with a sword and a wicket and Shambhu Yadav assaulted him by sword and wicket over his head. Thereafter Saroj Yadav also assaulted him in his leg by wicket and Babulal Yadav assaulted by the butt of his gun over his right eyebrow due to which he became unconscious. Thereafter the accused persons 6 allegedly also assaulted him by sword, wicket and farsa. On the alarm raised, his brothers Raghvendra Pratap Choudhary and Harendra Pratap Choudhary i.e. P.W-3 and P.W-2 arrived there and Pahalwan assaulted them by farsa and Saroj Yadav by sword and when his sister Maheshwari Kumari came there, she was also assaulted by wicket on her right knee by the appellant Shambhu Yadav and the accused persons fled away. It is stated that on not being recovered he was taken to BGH where he treated for two months. His brothers were also admitted and treated in BGH and his fardbeyan was recorded by the Daroga marked as Exhibit-1. During cross-examination he has stated that he does not remember as to how many cases he had instituted against the appellant no.3 namely Saroj Yadav. However, he has stated that Saroj Yadav and Bhagwat Yadav had not instituted any case against him. He had denied the suggestion that Bhagwat Yadav (deceased) had instituted Harla P.S. Case No.125 of 2000 against him prior to institution of this case. He has denied the suggestion that seven cases have been instituted against him in Harla P.S. He has further stated that a Cricket match was organized by Virendra Vikram who lives in Street No.14 but he is not aware with the other conveyer of the Cricket match except Virendra Vikram and he also does not know the name and address of any players. He has further stated that none had arrived at the time of occurrence except the accused persons and thereafter his brothers Harendra Pratap Choudhary and Raghvendra Pratap choudhary i.e. P.W-2 and P.W-3 came there but he did not say as to when they arrived as he had already fell down. He further stated that apart from his two brothers his mother and sister also arrived there and even Virendra Vikram and 7 several people of mohalla had arrived there. 16. He has further stated that he had instituted two cases against the appellant no.3 namely Saroj Yadav including the present case and one case is pending before the trial court where the other case is pending before the F.T.C-IV in S.T. No.253 of 2003. He has further stated that in the said case also Vishnu Prasad, Suraj Yadav etc. called him from his house and assaulted him by sword. He further admitted that Vishnu Prasad lodged a counter case in G.R.no.335 of 2002 against him which is pending in the court of Smt. Kavita Das, J.M, Bokaro. He has further stated that he has been acquitted in Harla P.S.Case No.46 of 1997 on the basis of compromise. However, Hurla P.S. Case No.63 of 2000 is still pending against him and admitted that Harla P.S. Case No.130 of 2000 has been instituted by Bhagwat Yadav as a counter case against him. He also admitted that Harla P.S. Case No.02 of 2002 has been filed as a counter case by Nawal Sharma. He also admitted that Harla P.S. Case No.40 of 2000, G.R. No.335/2000 is also pending against him and he has also denied the suggestion that he is wanted in three cases of Harla Police Station. He further stated that his statement was recorded by the Daroga on 29.12.2000 in the Hospital. He further stated and admitted that Sambhu, Saroj and Bhagwat are three brothers. 17. He has further stated that he was taken to Hospital by his brother, sister and friend Virendra Vikram but he cannot say the number of tracker nor the name of driver nor the name of Khalasi. But he was taken to Hospital at around 3.00 to 4.00 p.m. and Daroga Jee had arrived at the same day in between 3.00 to 4.00 p.m. He further denied that he was not an office bearer of the Cricket Match. 8 18. He has denied the suggestion that he is a criminal of that area and he is involved in demanding rangdari and at the instigation of Virendra Vikram and due to previous enmity with Saroj Yadav he was assaulted by the accused persons as he was demanding rangdari. He has further denied the suggestion as Saroj Yadav had instituted two case earlier against him and hence he has implicated all the family members of the Saroj Yadav i.e. appellant no.3 in order to save himself from Harla P.S. Case No.125 of 2000. 19. P.W-2 is Harendra Pratap Choudhary. During his evidence he has stated that while he was sitting in the field between Street 14 to 15 of Sector-9 then he heard alarm that his brother Surendra Pratap Choudhary i.e. P.W1 is being assaulted by some boys and he went there and found that Saroj Yadav i.e. appellant no.3, Shambhu Yadav i.e. appellant no.2, Santosh Thakur @ Pahalwan i.e. appellant no.1 and Bhagwat Yadav and others were assaulting his brother by danta, sword, farsa and when he tried to save him then Saroj Yadav i.e. appellant no.3 assaulted him on his left arm by sword due to which he sustained injury. Thereafter Bhagwat has assaulted him by lathi on his arm and when his sister, Maheshwari Kumari went there she was also assaulted by Shambhu Yadav below her left knee. Thereafter his sister brought him to BGH Hospital where he was treated. He further stated that reason of offence is that his elder brother Birendra Pratap had organized a Cricket Match on 02.12.2000 during the night and due to which Saroj Yadav, Shambhu Yadav etc. were demanding rangdari and due to which this occurrence had taken place as his brother had refused to pay rangdari. During cross-examination, he has stated that he was sitting at the distance of around 150 Meters from the place of 9 occurrence but he does not remember the name of boy who had informed him about scuffle/quarrel. Thereafter he arrived at the place of occurrence then he found Shambhu, Santosh, Saroj and Bhagwat and also one Babulal and there were some other persons but he does not know him. He further admitted that apart from Surendra Pratap i.e. P.W-1 and before his arrival only the accused persons were present at the place of occurrence. He further admitted that Surendra Pratap Choudhary i.e. P.W-1 (informant) is in jail in connection with Harla P.S. Case No.83 of 2004 but he does not remember the nature of case. He further admitted that Bhagwat Yadav had also instituted one case against them being Harla P.S. Case No.125 of 2000. He further stated that Surendra Pratap Choudhary and he has got no role with the Cricket Match and they were neither the organizer nor coordinator of the said Cricket Match. He is also not aware about the names of other persons who had organized Cricket Match. 20. He further admitted that Surendra Pratap Choudhary i.e. P.W-1 (informant) used to ply Treeker earlier but it was sold in the year 1997. Thereafter Surendra Pratap Choudhary i.e.P.W-1 became dependent upon his father. He further stated that he is not aware as to how many cases are pending against his brother. He denied the suggestion that eight (08) cases have been instituted against his brother at Harla Police Station and he had gone to jail in the case of docoity. 21. He further stated that several people had arrived at the place of occurrence but he does not know the name of any person. He denied the suggestion that in order to save himself in the case instituted by Bhagwat Yadav, he had instituted this case. 22. P.W-3 is Raghvendra Pratap Choudhary. He is also brother of the informant and has supported the prosecution case that one 10 person Birendra informed him that his elder brother Nakku was being assaulted at Street-17 and his hand is broken and blood is oozing out and when he went there then he found that Shambhu having armed with sword, Saroj having armed with sword and Babulal having armed with lathi were present there and Shambhu slapped his elder sister and he tried to save him then he was assaulted by farsa on his left shoulder then he was taken to BGH where they were treated. During cross examination and admitted that he was present at the time of occurrence in his house and police has not taken his statement. He further admitted that Bhagwat Yadav had instituted a case against him and his brother Nakku i.e. P.W-1 and Harendra Pratap i.e. P.W-2 for demanding rangdari. He denied the suggestion that this false case has been instituted to save himself from a case instituted by Bhagwat. Thus from scrutinizing the evidence of P.W-3, it is evident that he has given contradictory evidence on the point of having weapon as he has apprehended that Babulal was armed with lathi although P.W-1 namely Surendra Pratap has stated that he was having the Banduk and was assaulted by the butt of the gun. It is further evident that he was in his house at the time of occurrence, thus, P.W-3 is not an eye witness of the occurrence and his evidence is not reliable. 23. P.W-4 is Dr. Purnendu Kumar Pandey and he has examined the injured person and found the following injuries which are as follows:- “On examination of Harendra Pratap Choudhary found the following injuries: (i) One cut injury on right arm 1 ½” x ½” x ¼”. The injury was simple in nature and caused by sharp cutting weapon. On examination of Surendra Pratap Choudhary found the 11 Blunt injury on scalp, Lacerated wound on right eyebrow 1” x ½” x ¼”. following injuries:- (i) (ii) (iii) Blunt injury on right forearm, (iv) Blunt injury on back, (v) Blunt injury on left leg. On examination of Surendra Pratap Choudhary found the following injuries:- (i) cutting weapon and simple in nature.” Abrasion on left shoulder joint caused by sharp He has proved the injury reports of the injured persons marked as 2 to 2/2 respectively. During cross examination, he has stated that the injury reports (Exhibit- 2 to 2/2). He has stated that it takes around 5 to 10 minutes to examine one injured and it also depends on the injury sustained. All the three injury reports the time is written as 3.45 p.m. He has further stated that the cut injury, if unattended, is dangerous to the life. He further stated that injury report is not the proper format rather on a sheet or paper due to non-availability of format. He further stated that injury of lacerated wound on eye brow of S.P Choudhary i.e. P.W-1 may be false due to form of sharp cutting edge stone. Thus, from scrutinizing the evidence of P.W-4 i.e. the doctor, it transpires that though he has proved the injury reports marked as Exhibit-2 to 2/2 respectively, however, from perusal of the injury reports, it transpires that the same has been given on plain ruling paper although he was examined in BGH. It is surprising that BGH Hospital does not have any format of examining any injured person rather there is scene of casualty. It further transpires that in all the injury reports, date and time has been mentioned as 29.12.2000 at 3.45 p.m. and thus the injury reports do not match even the evidence of the P.W-1 namely Surendra Pratap Choudhary (informant) who has stated that he was 12 admitted at Hospital in between 3.00 to 4.00 p.m. The injury sustained by P.W-1 namely Surendra Pratap Choudhary shows the following injuries: (i) Blunt injury on scalp, (ii) Lacerated wound on right eyebrow 1” x ½” x ¼”. (iii) Blunt injury on right forearm, (iv) Blunt injury on back and (v) Blunt injury on left leg. It is evident that injury nos. 1, 2, 4 and 5 are simple in nature whereas injury no.3 is said to be grievous in nature. However, during examination of the doctor, the X-Ray report and the X-Ray Plate has not been brought on record and as such the injury no.3 cannot be said to be said to be grievous in nature in absence of X-Ray report and X-Ray plate. The injury of P.W-2 i.e. Harendra Pratap is simple in nature and caused by sharp cutting weapon. The injury of P.W-3 i.e. Raghvendra Pratap is simple in nature. 24. The I.O of this case has not been examined. Although the doctor has proved the injury report marked as Exhibit-2 to 2/2 respectively but the injury reports have been given on plain ruling paper. However, the injury reports marked as Exhibit-2 to 2/2 are not in proper format though it was issued from BGH and proved by Dr. P.K. Pandey but the same appears to be suspicious in nature and it cannot be relied upon which has been given by reputed hospital like the BGH, Bokaro. 25. It is evident from the evidence of P.W-3 i.e. Raghvendra Pratap Choudhary that he was not present at the place of occurrence rather he was in the house and hence he had not seen the occurrence. He has also admitted that Bhagwat Yadav instituted Harla P.S. Case No.125 of 2000 against them and hence 13 this present case was instituted after institution of that case. Even it is evident from the evidence of P.W-2 i.e. Harendra Pratap Choudhary that he was also at some distance while his elder brother P.W-1 i.e. Surendra Pratap (informant) was being assaulted and thus he had also not seen the occurrence rather they are witnesses on the point of sustaining injury themselves. It is improbable that three persons will be waiting for 10 minutes for arrival of his brother to assault in front of him. It has also come in the evidence that Maheshwari Kumari, sister of the informant- P.W-1, P.W-2 and P.W-3 had got examined them in the BGH but said Maheshwari Devi has not been examined by the prosecution who is said to have taken the injured persons i.e. P.W-1, P.W-2 and P.W-3 to BGH, Bokaro. 26. It further transpires that both the sides were having on litigating terms and the parties were hostile against each other from earlier and as such it appears to be quite improbable that a person will move with a hostile person with whom he has previous enmity. 27. It is also evident from the evidence of P.W-1 i.e. Surendra Pratap (informant) that 7 to 8 cases are left pending against him at the time of hearing of trial. 28. It is further evident from the evidence of P.W-1 namely Surendra Pratap recorded at Para 2 to the effect that he had remained hospitalized for around two months in the BGH and doctor has stated that injury no.1, 2, 4 and 5 are simple in nature whereas injury no.3 is grievous but neither X-Ray Plate nor X- Ray Report were brought on the record. Thus injury no.3 is suspicious and the nature of injury is conflicting and it does not corroborate that for such injury a person has to be hospitalized for two months and it is unbelievable and not being corroborated by 14 any prosecution witness including P.W-2, P.W-3 and even P.W-4 i.e. the doctor. He also admitted during cross-examination that accused persons had fled away before the arrival of P.W-2 and P.W-3. Thus the evidence of P.W-1 does not show the presence of P.W-2 and P.W-3 at the place of occurrence and hence the evidence of P.W-1 is not reliable. 29. In view of the facts mentioned above the prosecution case is an exaggerated version of the occurrence and the evidence led before the learned court below is an exaggerated version. 30. Accordingly, in view of the discussion made above, the judgment of conviction and sentence dated 08.07.2008 passed by Sri Kaushal Kishore Jha No.1, learned Additional Sessions Judge, F.T.C-II, Bokaro in S.T. No.67 of 2003 (arising out of Harla P.S. Case No.126 of 2000, G.R. No.1362 of 2000) by which the appellants have been convicted for the offences under sections 341, 323, 324/34 of the I.P.C, are set aside and the appellants namely Santosh Thakur @ Pahalwan, Shambhu Yadav and Saroj Yadav are acquitted for the offences under sections 341, 323, 324/34 of the I.P.C. 31. Thus, the Criminal Appeal (SJ) No.1086 of 2008 is
Decision
allowed and stand disposed of. 32. Let the L.C.R be sent back to the learned court below at once. Saket/ N.A.F.R. (Sanjay Prasad, J.)