Sahdeo Yadav v. The State of Jharkhand

For the State : Mr. Pankaj Kr. Mishra, APP ………. By court:- Heard, learned counsel for the appellants and learned counsel for the State. A counter affidavit has been filed on behalf of the State on 19.03.2024, wherein it has been stated that the Appellant No. 2 namely Pankaj Yadav has died on 17.03.2015 during the pendency of the appeal and the death certificate of appellant no.2, Pankaj Yadav has been enclosed in support of the same. Under the circumstance, the appeal preferred by appellant no.2, Pankaj Yadav is dismissed as abated.

The instant Criminal Appeal is directed against Judgment of conviction and order of sentence both dated 29.03.2012 passed by learned District and Addl. Sessions Judge-I, Giridih in S.T. No.86 of 2003 (arising out of Jamua P.S. Case No.92 of 2002 & G.R. No.892 of 2002) whereby the appellants have been held guilty under Sections 307/34, 341/34 and 342/34 IPC.

As per the F.I.R., on 24.05.2002, Roshan Yadav, informant of the case was sitting along with his nephew Hira Lal Yadav in a Tea Shop when Sahdeo Yadav, Fullu @ Bimal Yadav, Pankaj Yadav and Arbind Yadav variously armed with deadly weapon came there and indiscriminately assaulted the informant resulting in critical injuries to both Roshan Yadav and Hiralal Yadav were critically injured.

On the basis of the statement of the informant, Jamua P.S. Case No.92 of 2002 was registered under Sections 341, 342, 323, 324, 325, 326, 307/34 IPC against the named accused persons. Police after investigation found the case to be true and submitted charge-sheet and after cognizance, the accused persons were upon trial for these offences.

Altogether ten witnesses were examined on behalf of the prosecution and relevant documents including injury report were adduced into the evidence and were marked as Exhibits. 1

After prosecution evidence, the statement of the accused persons has been recorded which is of innocence and false implication. Ext. A to C have been adduced into evidence on behalf of the defence.

The judgment of conviction and sentence has been assailed on the ground that as per the discharge summary which has been marked as Exhibit-2, the injuries were not on the vital part of the body. The injury sustained were either in leg or hand.

It is further argued that out of eight material witnesses, P.W. 1, 2 and 3 have been declared hostile. P.W. 4 and P.W. 10 are the formal witnesses. It is also argued that the Investigating Officer has not been examined which has caused serious prejudice to the defence.

It is also argued that all the injury reports are of a private nursing home and there is no document of treatment from the Government Hospital where he was admitted has been brought on record.

The main contention of the appellants is that it was the informant (Roshan Yadav) who was the main assailant regarding which Sukhdeo Yadav had lodged Jamua P.S. Case No.93 of 2002 on 24.05.2002 under Sections 341, 323, 324, 325, 326, 307/34 IPC against Roshan Yadav and others with regard to the incidence took place on 23.05.2002 at 6 o’clock.

It is also argued that there is contradiction with regard to the place of occurrence. In the FIR, the place of occurrence is stated to be Tea shop of one Shiv Narayan Singh whereas P.W.6 [Pannalal Yadav] in Para-6 has deposed that the place of occurrence was agricultural field of Nago Singh.

On the point of sentence, it is submitted that Appellant No. 1 [Sahdeo Yadav] was 65 years of age at the time of judgment on 29.03.2012 and at present he is more than 77 years. The appellants have already undergone a sentence of imprisonment for more than one year and three months.

Learned A.P.P. for the State has defended the impugned judgment of conviction and sentence. It is submitted that P.W. 8 [Roshan Yadav] is the informant and injured of the case and he has stated in para 1 that on the date of incidence at 5 o’clock when he was sitting along with his nephew Ranjit, brother Thakur Yadav, nephew Panna Lal Yadav and Hira Lal Yadav, when Pankaj Yadav, Sahdeo Yadav, Fullo Yadav and Arvind Yadav armed with sword, lathi, tangi and barchha started assaulting him. Sahdeo inflicted him a sword blow on his neck and in order to save himself, he stopped him from his left hand, as a result of which, he sustained imputation on his left hand. Accused, Pankaj Yadav assaulted him with barcha, Fulo Yadav gave him farsa blow over his body. Arvind Yadav assaulted him with tangi on his leg. He sustained sword cut injury inflicted by Sahdeo Yadav. When his brother, Thakur Yadav came to rescue him, he was also 2 assaulted. His testimony is corroborated by the medical evidence of Dr. P.W. 9 and other eye witnesses namely, P.W. 7 [Hiralal Yadav], P.W. 5 [Thakur Yadav].

Having considered the submissions advanced on behalf of both the sides, I find force in the argument advanced on behalf of the appellants that Thakur Yadav was not present at the place of occurrence as only Hira Lal Yadav has been mentioned in the F.I.R. to be present there. Although it has been stated that Thakur Yadav also sustained injury, but no document in support of his injury has been brought on record. Under the circumstances, it will not be safe to rely upon the deposition of P.W. 5 (Thakur Yadav).

However, I do not find any reason to discard the testimony of injured (Roshan Yadav- P.W. 8) wherein he has specifically stated that he was assaulted by four named accused persons who were armed with deadly weapon. The injury sustained by the injured was examined by doctor (P.W. 9) who has deposed that he examined Roshan Yadav on 27.05.2022 admitted in Sharda Clinic and found the following injuries:- a. Multiple stitched wounds on nose, left side of the back of neck, left arm, left upper thigh, Dorson of right hand. b. Grossly infected compound committed fracture. Left forearm bones with no sign of viability. The forearm was attached with proximal part with small portion of skin and muscles. c. Infected wound lateral aspects of the lower leg with fracture fibula plus severence of tendons and muscles. d. Infected wound left ankle plus sole with Severence of the tendons, joint seem through the wound. e. Amputated left thumb. I. II. III. X-ray left leg, Shows fracture fibula. X-ray of ankle- fracture calcarieum plus talus with dislocation. X-ray left forearm- communicated fracture upper third radius ulna with dislocation of radio ulna joint. IV. X-ray left hand shows-absence of left thumb.

An act will amount to an attempt to murder if the act is such that if it is not prevented or intercepted, it would be sufficient to cause the death of the victim. To sustain conviction u/s 307 the intention to kill should be clearly proved by the circumstances like persistence of attack on vital part of the body. This section clearly contemplates an act which is done with the intention of causing death, but, which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. Thus, the intention or knowledge of the accused must be such as is necessary to constitute murder. It has been held in Hari Mohan Mandal v. State of Jharkhand, (2004) 12 SCC 220 wherein it has been held that 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 3 circumstances mentioned in the section. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

There is some force in the argument advanced on behalf of the appellants that injuries were imposed on the non-vital part of the body. It has also come in the evidence that the appellants were armed with deadly weapon and they out- numbered the informant and his brother and could have caused death had they such intention to commit the offence. Nature of injuries being inflicted on non- vital part of the body cannot be credited with intention or knowledge to cause death of the injured. Judgement of conviction and sentence under Section 307 of the IPC is accordingly set aside.

Considering the nature of injury, the offence under Sections 326/34, 342/34 IPC is proved by the prosecution beyond shadow of doubt against both the appellants Sahdeo Yadav and Arvind Yadav.

On the point of sentence considering the wide-ranging and indiscriminate injuries inflicted to Roshan Yadav by these two appellants with other co-accused persons it will be a travesty of justice if both of them are let off only on the sentence already undergone by them. It has been held in State of U.P. v. Shri Kishan, (2005) 10 SCC 420

5. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463] 6. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task.

It has been very aptly indicated in Dennis Councle McGautha v. State of California [402 US 183 : 28 L Ed 2d 711 (1971)] that no formula of a fool proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any fool proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. 8. Imposition of sentence without considering its effect on the social order in many cases may in reality be a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment.

Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the 4 long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 9. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society's cry for justice against the criminal”.