The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (SJ) No. 696 of 2004 ----- 1.Ashok Kumar Modi @ Ashok Modi 2.Bimal Kumar Modi @ Vimal Modi The State of Jharkhand Versus ------ .... Appellant(s). … Respondent(s). CORAM : SRI ANANDA SEN, J. ------ For the Appellants For the State
Legal Reasoning
: Mr. Samavesh Bhanj Deo, Advocate. : Mr. Rakesh Ranjan, A.P.P. …...... 14/31.08.2023: Heard, learned counsel for the parties. 2. This appeal is directed against the judgment dated 24.02.2004 passed by learned 4th Additional Sessions Judge, Dumka in Sessions Case No.171 of 2000 whereby these appellants were convicted under Section 307/34 of the Indian Penal Code, thereafter have been sentenced to undergo Rigorous Imprisonment for five years. 3. Challenging the judgment of conviction and sentence, learned counsel appearing on behalf of the appellants submit that from the fact of this case and the evidence led, this case cannot come within the purview of Section 307 of IPC. He further submits that a fight was going on between the parties, when the complainant tried to intervene and save his brother, it is alleged that Bimal Kumar Modi @ Vimal Modi gave a dragger blow on the stomach of the complainant. Admittedly, the injury is simple in nature as per the report of the Doctor. Further from the evidence, it has been highlighted that appellant- Bimal Kumar Modi @ Vimal Modi is the informant in Dumka Town P.S. Case No.166 of 1998 wherein death was caused to one Jeet Modi, who was also a party in the occurrence and the complainant of the instant case is the accused. 4. Learned counsel for the appellants submits that information about of this occurrence was not lodged immediately and it is nothing but an afterthought of the complainant, when the complainant, who was allegedly being assaulted was taken in custody in Dumka Town -2- P.S. Case No.166 of 1998. He further submits that the best witness i.e. the brother of this complainant, who was allegedly being assaulted was not examined. 5. So far as appellant- Ashok Kumar Modi @ Ashok Modi is concerned, he submits that there is no allegation of any assault by him upon the complainant thus convicting him under Section 307 of IPC with aid of Section 34 of IPC as absolutely bad. He lastly submits that there is no ingredients of Section 34 of IPC in this case as it is evident from the statement of the witnesses that there was no common intention to commit murder of this complainant nor any one. Thus, he prays to allow this appeal after setting aside the judgment of conviction and order of sentence. He admits that there are no procedural lapse in conducting the trial. 6. Learned A.P.P. submits that though the injury is simple yet the weapon used is a dragger and the intention to commit murder will be evident from the fact that dragger blow is given on his stomach. He further submits that nature of the injury has nothing to do with the intention to commit murder. As per the A.P.P., the delay in lodging the complain is well explained. 7. Sessions Case No.171 of 2000 (instant case) arises out of complaint made by the complainant, Sanjay Verma, from custody. This case was registered under Section 307/34 of IPC. Sanjay Verma, who was in custody in connection with Dumka Town P.S. Case No.166 of 1998 stated that on 06.12.1998 at about 03.00 P.M., when he was at his home, he received information that some person are assaulting his younger brother, Lalu Verma. On receiving such information, he rushed at the place of occurrence and saw Vimal Modi, Ashok Modi (appellants herein), Jeet Modi, Ramjee Modi and Kali Modi were assaulting his brother. He intervened and objected, when the accused persons started assaulting him. Vimal Modi gave a dragger blow on his stomach, but he could manage to escape and went to his house and -3- became unconscious. After he regained his consciousness, he could come to know that Jeet Modi is dead and accused persons are searching him. He could manage to escape and finally he was arrested on 09.12.1998. He stated that after he regained his sense on 14.12.1998 he wrote a petition to the CJM for taking action against these accused persons. On the basis of the complaint, the instant case was initiated. 8. After the case was committed to the court of Sessions and after framing of charge, the prosecution examined seven witnesses. The signature on the complaint petition and vakalatnama was also exhibited. The complainant has also exhibited certificate copy of deposition in Sessions Case No.235 of 1999 and the petition dated 14.12.1998 filed by the complainant. 9. P.W.-1 is the complainant, who stated that on receipt of the information that some persons were assaulting his younger brother, he reached at the place of occurrence and tried to intervene and pacify, when Vimal Modi gave a dragger blow on his stomach. He managed to escape. After he reached his house he became unconscious. After regaining consciousness came to know that Jeet Modi is death and other accused persons are searching for him to take revenge. He could escape the police and ultimately was arrested in Dumka Town P.S. Case No.166 of 1998. After regaining his senses and after some treatment he filed the complaint. He admitted that he is an accused of murder case filed by Vimal Modi (appellant No.2) and other accused persons of this case are witness in that murder case. He further stated that the accused persons were assaulting his brother, Lalu Verma by fists and slaps. 10. P.W.-2 is alleged to be an eye witness, who stated that he has seen the accused persons assaulting, Lalu Verma, younger brother of the complainant. The complainant came to save his brother and the accused persons assaulted him also. Vimal Modi gave a dragger blow on the complainant as a result of which he sustained injury. P.W.-2 -4- further stated that he heard that Jeet Modi was killed. In cross- examination, he has stated that he is witness in the counter case i.e. Dumka Town P.S. Case No.166 of 1998. In cross-examination, he stated that he had gone to jail to meet this complainant. 11. P.W.-3 is also an independent witness. He has stated that he has seen the occurrence, but he could not see who had given the dragger blow on the complainant. 12. P.W.-4 is not an eye witness of the occurrence. He had only seen the injured, Sanjay Verma in injured condition. 13. P.W.-5 the Doctor, who had examined is the injured complainant. He stated that there is a incised (infected) wound in right lumber region 2” x 1/3” x muscle deep. He also found the other injuries, which are as follows:- Incised (infected) wound ulner side of palm mid region in right hand 2” x 1/8” x skin. Incised (infected) wound over PIP junction of palmer aspect of right little finger 3”/4” x ¼” x skin deep. He gave an opinion that injuries are simple in nature. 14. P.W.6 and P.W.7 are formal witness, who has proved the complaint petition as Exhibit-4 and drafting of the complaint petition and has identified complainant’s signature on the complaint petition as Exhibit-4/A. 15. Thus, from the evidence on record, I find that it is the case of the prosecution that there was some altercation going on between brother of the complainant and the others and the brother of the complainant was assaulted and when the complainant went to intervene he was given a dragger blow. P.W.-3, who is supposed to be the eye witness, in his deposition could not say who had given the dragger blow. P.W.- 2 stated that the dragger blow was given by Vimal Modi. Similar is the statement of the complainant. 16. This fact clearly proves that the appellant No.1, Ashok Modi has -5- not given any dragger blow to the complainant. At best it can be said that he was assaulting the brother of the complainant by fists and slaps. But the fact which cannot be denied is that brother of the complainant, who was being assaulted by these appellants and others could have been the best witness, was not examined by the prosecution. 17. It is surprising that entire occurrence is based on an incident of assault upon the brother of the complainant and inspite of that how can the prosecution withhold him as a witness. Even if the statement of the witnesses are considered, it would be clear that brother of the complainant was being assaulted only by fists and slaps. No deadly weapon was used. Thus, examination of brother of the complainant as a witness would have proved the correct fact. Non examination of the brother of the complainant is fatal for the prosecution. 18. It is admitted fact that the complaint was lodged after much delay as the occurrence has taken place on 06.12.1998 whereas the complaint was lodged on 14.12.1998, which was registered on 26.02.1999. The complainant tried to explain the delay, stating that as he got injured and became unconscious, on regaining his senses and after treatment as he was taken in custody thus there was delay in filing this complaint. It is also surprising that even if the complainant was injured and was prevented, the brother of the complainant could have filed the FIR/complaint. 19. It is also an admitted fact that, before filing of this complaint, the complainant was already been named as an accused in Dumka Town P.S. Case No.166 of 1998. It is admitted fact that the aforesaid case was registered by Vimal Modi (one of the appellant herein) for committing murder of Jeet Modi by this complaint. Further, the witnesses have deposed that other accused persons of this case are the witness in the aforesaid murder case in which this complainant is accused. The Doctor also found the injury on the complainant to be simple. -6- 20. The fact that this complainant is an accused in the murder case, which was lodged by the appellants herein and knowing the aforesaid fact that he is an accused, after being arrested from jail he has lodged this complaint after much delay. Further, his younger brother, who was allegedly been assaulted by these appellants, have not been cited as a witness nor he was examined. Further, even if the statement of the complainant is accepted that since he was injured he could not lodged the case against the accused persons, but the fact is that what prevented the brother, who was been assaulted and was present there was the best witness, why not he had filed the FIR has not been explained. 21. This aspect clearly creates doubt about the prosecution case and the involvement of these appellants. There are high probably that to save his skin, the complainant by way of afterthought has filed the complaint after he was taken into custody. Thus, it can be safely be held that the prosecution has failed to prove the case beyond all reasonable doubts as there is element of genuine doubt about this case. 22. The instant Criminal Appeal stands allowed. 23. The impugned judgment of conviction under Section 307/34 of IPC and the sentence is set aside. 24. The appellants, who are on bail, are discharged from liability of their bail bonds. R.S./ (ANANDA SEN, J.)