The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (D.B.) No. 754 of 2015 Dinesh Sao, son of Hitan Sao, resident of Village Sinduriya, P.O. & P.S. Bhamanathpur, District- Garhwa The State of Jharkhand Versus- … … Appellant … … Respondent ----- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE NAVNEET KUMAR For the Appellant(s) For the Respondent Per, Shree Chandrashekhar, J.
Legal Reasoning
-------- : Mr. Arwind Kumar, Advocate : Mr.Abhay Kr. Tiwari, A.P.P. -------- Dated: 10th April 2024 Dinesh Sao has filed this criminal appeal under section 374(2) of the Code of Criminal Procedure to challenge the judgement of conviction and award of sentence thereon in S.T. No. 18A of 2007. 2. Dinesh Sao was convicted and sentenced to rigorous imprisonment for 10 years under section 307/120-B/34 of the Indian Penal Code with fine of Rs.5,000/-. 3. Case No.77 of 2005 registered on 11th July 2005. The appellant faced the trial in connection to Bhawnathpur P.S. 4. sentenced in the following manner: In S.T. No.18A of 2007, Dinesh Sao was convicted and Dinesh Sao [In Cr. Appeal (D.B.) No. 754 of 2015] 341 of IPC 323 of IPC 325 of IPC 379 of IPC 452 of IPC 307/120-B/34 of IPC SI for one month RI for six months RI for three years with fine of Rs.3,000/- RI for one year RI for three years with fine of Rs.5,000/- RI for ten years and fine of Rs.5,000/- and in default of payment of fine SI for three months 5. Bhawnathpur P.S. Case No.77 of 2005 was registered around 10:00 PM on 11th of July 2005 on the basis of the fardbeyan of Mandip Yadav that Dinesh Sao, Binay Oraon, Manoj Paswan and Chaturgun Sah entered his house in the night of 10th of July 2005 and assaulted his son Binod Yadav. On conclusion of the investigation, a charge-sheet was laid by the police against them and a common charge under sections 452, 341, 323, 325, 379 and 307 of the Indian Penal Code was framed against Dinesh Sao, Binay Oraon and Manoj Paswan. Against Chaturgun Sah, a separate charge under section 307 read with section 120-B of the Indian Penal Code was framed by an order dated 3rd August 2009. 6. In the trial, the prosecution examined 10 witnesses out of whom PW-1 Kalawati Devi, PW-2 Bacchha Yadav, PW-4 Sunil Yadav and PW-6 Satendra Kumar Yadav are closely related to the informant Mandip Yadav who tendered evidence as PW-5. According to the prosecution, PW-3 Binod Yadav who is the victim and PW-9 Ravindra Kumar Yadav who is the cousin of the victim are eye-witnesses. PW-5 and PW-9 came to witness-box to support the victim. However, PW-5 simply stated that the accused persons caused injuries to his son. PW-9 deposed in the Court that the accused persons conspired together and made murderous assaults on PW-3. On the other hand, PW-3 who is the victim made specific allegations of assault upon him by Dinesh Sao. Besides the testimony of the related witnesses which cannot be discarded merely because these witnesses may have a motive to prosecute the accused persons, the evidence tendered by PW-3, PW-5 and PW-9 conclusively established the participation of Dinesh Sao in the occurrence. 7. Dr. Vijay Kumar Ram who examined PW-3 on 18th July 2005 observed the following injuries on his person:- (i) (ii) There were three lacerated wounds on occipital part of head. On left side, wound was circumscribed with clear margin and lacerated scalp muscle. Skull bone was visible clearly in the centre of wound. Size-Circular in shape 2” x 2” in dimension deep to bone with profused bleeding. (iii) Oblique longitudinal wound on right side of occipital part of head underlying scalp muscle lacerated with clear margin. 2 Cr. Appeal (D.B.) No.754 of 2015 (iv) (v) Size-6 cm x 1 cm linear in shape deep to bone with profused bleeding. Sharp cut on the top of occipital part of head, deep to bone. Size- 3 cm in length with profuse bleeding Sharp cut with flap of palmer surface of skin on the palmer surface of the right thumb in the middle extending to the lower side of thumb. It may be named as defence wound. Size 2.5 cm x 1 cm profused bleeding. (vi) Opinion on skull bone is reserved till x-ray report 8. As PW-10, Dr. Vijay Kumar Ram tendered his opinion in the Court that the injuries caused to Binod Yadav were grievous in nature. Binod Yadav was referred for treatment to BHU, Varanasi where a C.T. scan of his head was conducted. The C.T. scan report dated 11th July 2005 disclosed haemorrhagic contusion on left posterior parietal region with fracture by lateral parietal bone extending up to the left occipital bone; with occipital parietal scalp swelling. This injury was also found to be grievous in nature. 9. The presence of Dinesh Sao at the place of occurrence and at the time of occurrence is clearly established through the evidence tendered by PW-3, PW-5 and PW-9. However, the charge against the appellant under Section 307 of the Indian Penal Code cannot be said to have been proved. 10. The offence under section 307 of the Indian Penal Code envisages intention or knowledge which in the circumstances of the case would have caused death and the person could have been guilty of murder had he succeeded in his effort. 11. Section 307 of the Indian Penal Code reads as under: 307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. 12. The offence under section 307 of the Indian Penal Code is not culpable homicide, and what is required by the prosecution to establish a charge under section 307 of the Indian Penal Code is that the accused had 3 Cr. Appeal (D.B.) No.754 of 2015 requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of M.P. v. Saleem” (2005) 5 SCC 554 the Hon’ble Supreme Court observed as under: “12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 13. The prosecution evidence is not clinching and it is not conclusively established that the appellant has requisite knowledge or intention as envisaged under Section 307 of the Indian Penal Code. Therefore, the conviction and sentence of Dinesh Sao under section 307 of the Indian Penal Code are set aside. However, we uphold his conviction under sections 323, 325, 379, 341 and 452 of the Indian Penal Code. 14. While the punishment should be commensurate with the gravity of the offence but no guidelines are provided in the Code of Criminal Procedure for awarding of the punishment. The judicial pronouncements however lean towards balancing the need for deterrence and avoiding too harsh punishments; having regard to the aggravating and mitigating circumstances in each case. In “State of Punjab v. Manjit Singh” AIR 2009 4 Cr. Appeal (D.B.) No.754 of 2015 SC 2888 the Hon'ble Supreme Court has observed as under: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 15. The learned counsel for appellant submits that Dinesh Sao has undergone custody for 1 year, 1 month and 22 days as per the report of the Jail Superintendent, Central Jail, Medininagar, Palamau. 16. In “Mohinder Singh v. State of Haryana” (2021) 18 SCC 296 the Hon’ble Supreme Court considering the time lapsed after the incident observed as under: “2. We are not inclined to interfere on the merits of the case. At the same time, we cannot lose sight of the fact that the occurrence took place more than a quarter of century back and to send the accused in prison after 25 years, would be travesty of justice. 3. The accused has already undergone more than four months' imprisonment and keeping in view the fact that there is so much delay in disposing of this case, we alter the sentence imposed by the High Court to the period of incarceration already undergone by the appellant.” 17. The incident had happened in the year 2005 and 19 years have already been lapsed. Therefore, the sentence of R.I for 3 years under sections 325 and 452 of the Indian Penal Code is modified to the period already undergone by the appellant with fine of Rs.10,000/- (Rupees Ten Thousand) which shall be paid to the injured as compensation. 18. terms. Cr. Appeal (D.B.) No. 754 of 2015 is allowed, in the aforesaid (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) D.S. / A.Mohanty 5 Cr. Appeal (D.B.) No.754 of 2015