Jharkhand High Court
Gangadhar Swansi vs The State Of Jharkhand on 2 May, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 389 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 389 of 2005
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(Against the judgment of conviction dated 15.03.2005 and order of sentence dated 17.03.2005 passed by the learned Additional Judl. Commr. II, Khunti, in Sessions Trial No. 180 of 2001 corresponding to G.R. No. 335 of 2000, arising out of Sonahatu P.S. Case No. 28 of 2000, Sonahatu, Khunti, Jharkhand.) Gangadhar Swansi ... ... Appellant Versus The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. J.S. Tripathi, Advocate For the Respondent : Mrs. Nihala Sharmin, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 05: Dated: 2nd May, 2022
1. This appeal is directed against the judgment of conviction dated 15.03.2005 and order of sentence dated 17.03.2005 passed by the learned Additional Judicial Commissioner II, Khunti, in Sessions Trial No. 180 of 2001 corresponding to G.R. Case No. 335 of 2000, arising out of Sonahatu P.S. Case No. 28 of 2000 whereby and where under Jitu Swansi and Kanhai Swansi have been acquitted and this appellant has been convicted under sec- tions 307/450 of IPC and sentenced to undergo R.I. for 7 years under sections 307 of IPC and R.I. for 5 years under sections 450 of IPC, both sentences were directed to run concurrently.
2. The prosecution case, in brief, is that informant Krishna Swansi gave his fardbeyan on 17.06.2000 that on 16.02.2000 at 7.00 P.M. informant and his brother Balram Swansi were in the house then all of a sudden accused persons namely, 1. Jitu 2 Cr. Appeal (SJ) No. 389 of 2005 Swansi armed with lathi, 2. Gangadhar Swansi armed with Tangi and 3. Kanhai Swansi armed with lathi entered into the house of the informant and started assaulting him and his brother with lathi and tangi. Gangadhar Swansi assaulted with tangi on the head of Balram Swansi as a result of which his head was broken and injured and bleeding started and thereaf- ter Balram fell down and when the informant went to save his brother then Ganadhar Swansi assaulted him on his head also and there was injury on his forehead. Thereafter, Jitu and Kanhai also assaulted both of them with lathi as a result both fell down and accused persons fled away.
3. On the basis of the aforesaid fardbeyan a formal FIR was registered vide Sonahatu P.S. Case No. 28 of 2000 u/s 341/323/324/447/307/34 of I.P.C. against the present appellant and two other accused persons and the investigation of the case commenced.
4. After investigation charge sheet was submitted under the same sections and cognizance was taken by the then learned A.C.J.M. Khunti and the case was committed to the Court of Sessions. Learned Additional Judicial Commissioner -II, Khunti had framed charge on 22.11.2002 under sections 341, 447, 307/34 of IPC and later on charge was also framed on 22.01.2004 under sections 450, 323/34, 324/34 of IPC and after conclusion of the trial learned trial court has convicted the appellant by the impugned judgment of conviction and order of sentence which is under challenge in this appeal.
5. Heard Mr. J.S. Tripathy, learned counsel appearing on behalf of the appellant and Mrs. Nihala Sharmin, learned A.P.P. appearing on behalf of the State.
3 Cr. Appeal (SJ) No. 389 of 2005 Arguments on behalf of the learned Counsel for the appellant
6. Learned counsel for the appellant contended the following points against the impugned judgment of conviction and order of sentence:
No repetitive blow by the appellant to convict under section 307 of the IPC Oral evidence and medical evidence are contradictory to each other Section 360 of Cr.P.C. ought to have been considered by the learned court below.
No criminal antecedent against the appellant. Not a single independent and impartial witness is on the record and the entire case is based on family witnesses and interested witnesses. Not a single witness has come forward to say anything against the appellant.
P.W. 4 Basuki Devi who contradicted the whole case in the cross-examination.
Sections 307 and 450 of IPC are not applicable under the facts and circumstances of this case. Non-examination of the I.O. has caused prejudice to the defence of the appellants.
Sentence passed, is too severe.
The case is for land dispute.
And as such the appeal is fit to be allowed.
Arguments on behalf of the leanred A.P.P. for the State
7. On the other hand, the learned A.P.P. for the State has 4 Cr. Appeal (SJ) No. 389 of 2005 vehemently opposed the contentions raised on behalf of the appellant on the following points:
that P.W. 1, P.W. 2, P.W. 3 and P.W. 6 have consistently supported the case of the prospection. Non-examination of the I.O. has not caused prejudice to the defence of the appellants.
No legal defence to interfere in the impugned judgment of conviction and order of sentence The appeal is fit to be dismissed being devoid of merit.
Appraisals and Findings
8. Having heard the parties perused the materials available on record including the LCR.
9. In the present case, it is found that in order to substantiate the charges leveled against the accused altogether 06 witnesses have been examined which are as under: P.W. 1- Sohvati Devi, P.W. 2- Ramila Devi, P.W. 3- Krishna Swansi, P.W. 4- Basuki Devi, P.W. 5 Dr. C.B. Sahay and P.W. 6 Balram Swansi.
10. From the deposition of P.W. 1- Sohvati Devi, wife of the informant, it is found that she did not make statement with respect to the sole appellant Gangadhar - who had assaulted with tangi. Although she stated that the appellant along with the co-accused persons namely Jitu Swansi and Kanhai Swansi collectively assaulted Balram Swansi-P.W. 6 and when Krishna Swansi P.W. 3 went to rescue P.W. 6-Balram Swansi, he was also assaulted, by which Balram Swansi had sustained injury on his head and Krishna Swansi on the lower portion of the eyes. From the perusal of the testimonies of this witness, it is not
5 Cr. Appeal (SJ) No. 389 of 2005 found that the sole appellant assaulted by tangi (axe). P.W. 1 has stated that this appellant was holding tangi in his hand, the defence has drawn the attention of this witness in para 10 about the interrogation before the police with respect to her earlier statement, but, since the I.O. in this case has not been examined and, therefore, the veracity of this witness could not be controverted and the accused-appellant has been debarred from his right.
11. P.W. 2, Ramila Devi- is also said to be the eye witness who had stated that this appellant was holding a tangi in his hands and the other two co-accused persons (Jitu Swansi and Kanhai Swansi) were holding lathis and they have assaulted the husband of this witness (P.W. 6 Balram Swansi) and Bhaisur P.W. 3- Krishna Swansi. In the cross examination her attention has been drawn in paras 10 and 15 about her earlier statement before the police, but, the non-examination of the I.O. has caused prejudice to the defence of the appellant, because, the veracity and truthfulness of this witness also could not be ascertained.
12. P.W. 3, Krishna Swansi is also said to be the eye witness and he was also said to have been assaulted by the appellant. But, neither any injury report nor any alleged means of assault by tangi or lathi has been brought on record or recovered to substantiate his allegation about the assault. Although, this witnesses in his examination in chief stated that the appellant holding tangi in his hand had assaulted on the head of Balram Swansi-P.W. 6. This witness stated that he was not interrogated by the police. The attention of this witness was drawn about the previous enmity due to the land dispute which was stated by 6 Cr. Appeal (SJ) No. 389 of 2005 this witness before the police and since the I.O. in this case has not been examined, therefore, the defence taken by the appellant that the appellant has been falsely implicated in this case due to the old landed property dispute, could not be substantiated. Further, in para 11 this witness has categorically stated that he was not examined by the police.
13. P.W. 4 Basuki Devi is the daughter of P.W.1, Sohvati Devi from her first husband Ranga as evident from para 8 of her cross examination. This witness also supported the case of the prosecution to the effect that the appellant was holding tangi in his hand and assaulted the victim Balram Swansi and he had also assaulted Kanhai Swansi along with the co-accused persons, but, no injury report of the Kanhai Swansi has been produced nor any evidence to substantiate her version about the assault upon him. The attention of this witness was also drawn with respect to her earlier statement vide paras 8, 9 and 12 of her cross examination, but, non-examination of the I.O. has caused prejudice with respect to ascertain the veracity and truthfulness of this witness with respect to her earlier statement.
14. P.W. 5 - Dr. C.B. Sahay, is the doctor examined on behalf of the prosecution. He is said to have medically examined the victim Balram Swansi P.W. 6 on 17.06.2000. P.W. 5 the Doctor stated that:
(i) On 17.06.2000 he was posted as Resident Surgical Officer, R.M.C.H., Ranchi. On that day he examined Balram Swansi 35 years male s/o Jharia Swansi, Village-Parandih, Eavanable Tola P.S. Sonahatu Distt. Ranchi. He was admitted in 7 Cr. Appeal (SJ) No. 389 of 2005 Neuro Surgery Deptt. vide registration No. ERMS/986 on bed no. 36 for treatment of head injury.
(ii) Details of injuries 6"x 1"x Bone deep, sharp cut injury on right side frontal and parietal region in entro posterial direction.
(iii) City scan of brain and scull show cut and elevated fracture of right side frontal bone and hemorrhage contusion in right fronto partial region of brain.
(iv) Operation on 29.06.2000, conferred elevated fracture bone fragments removed. Dupa was torn and brain was lacerated.
(v) Mark of identification:- Fature scar of operation.
(vi) Time of injury: less than 24 hours.
(vii) Nature of weapon sharp cutting weapon
(viii) Nature of injury of injury: grievous.
(ix) The patient was admitted on 17.06.2000 at 11.30 A.M. and discharged on 12.07.2000.
This injury report is written and signed by him which is marked as Ext.1. From the perusal of Ext. 1 it is evident that there was only one blow of assault suggesting that there was no intention/knowledge to cause marderous attack upon the injured Balram Swansi which is from his testimonies also.
15. The P.W. 6- victim Balram Swansi has been examined on behalf of the prosecution who supported the case of the prosecution to the extent against this appellant Gangadhar Swansi was that he had come at his residence with tangi in his 8 Cr. Appeal (SJ) No. 389 of 2005 hand and assaulted him with tangi on his head as a result of which his head was injured and he was admitted to the hospital. In his cross examination conducted on behalf of the prosecution nothing could be elicited in order to disbelieve his version with respect to the facts that the accused appellant holding tangi had assaulted on his head. Although this witness stated that he was not examined by the police as evident from para 3 of his cross examination and further in para 4 the defence has been taken that appellant had been falsely implicated in this case because of the landed property dispute and, since I.O.in this case has not been examined and this witness also stated that he was not examined by the police, the truthfulness and credibility of this witness could not be verified or tested in the cross-examination by the defence due to the non-examination of the I.O. As a consequence the conviction of the appellant under Section 307 of IPC for want of the non- examination of the I.O. and also to ascertain the truthfulness of this witness with respect to the assault by tangi and intention and knowledge to commit murder could not be ascertained to that effect to invoke the offence under Section 307 of the Indian Penal Code.
16. From the perusal of the Exhibit 1 and the testimony of the witnesses, it is found that there was only one injury on the head of the victim P.W. 6 and it was inflicted by a sharp cutting weapon and, therefore, the case of the prosecution that he was assaulted by tangi by the appellant is substantiated. Although, it is only one injury and there is no repeated blow and the other co-accused persons who are said to have assaulted by lathi are acquitted by the learned court below, this Court does not infer 9 Cr. Appeal (SJ) No. 389 of 2005 any intention and knowledge to cause the murder of the victim P.W. 6 and, therefore, the offence of attempt to commit the murder within the meaning of Section 307 of IPC is not substantiated. Further, neither any weapon has been produced by the prosecution in order to give an opportunity to the defence of the appellant to bring into the knowledge of the doctor P.W. 5 who had medically examined the victim P.W.6 as to whether such injury could be caused by tangi or not. Neither any blood stained cloth nor any weapon has been recovered nor the I.O. has been examined and, therefore, to substantiate the intention and knowledge in order to infer the offence under Section 307 of IPC is not proved and the learned trial court without considering all these factors found the guilt of the accused appellant under Section 307 of the Indian Penal Code which is not tenable in the eyes of law.
17. Having taken into consideration the aforesaid findings on the evaluation of the testimonies of the witnesses examined on behalf of the prosecution and the injury report Ext.-1, it is inferred by this Court that the prosecution has failed to infer the knowledge and intention of the accused appellant to cause the murder of the victim P.W. 6 within the meaning of Section 307 of IPC. It is established that he (PW-6) has been assaulted by the appellant by a sharp cutting weapon by which he had sustained the injuries for which the offence under Section 323 of IPC is proved and further it has also been consistently corroborated and substantiated by all the witnesses examined on behalf of the prosecution that the appellant entered into the house of victim P.W. 6 and inflicted injuries and, therefore, the offence under Section 448 of IPC is substantiated as a consequence, 10 Cr. Appeal (SJ) No. 389 of 2005 offence under Section 323 of IPC is proved but not under section 307 of the IPC.
18. In the backdrop of the aforesaid crystallized findings, this Court alters the conviction of the appellant from the Sections 307 /450 of the Indian Penal Code to sections 323/448 of IPC. Since, the offence under Sections 307 of IPC is not substantiated and, therefore, the offence punishable under Section 450 of IPC is also not substantiated and it is also altered from section 450 of IPC to 448 of IPC. As a result, this Court upholds the conviction of the appellant for the offence punishable under Sections 323 /448 of the Indian Penal Code after setting aside the impugned judgment of conviction dated 15.03.2005 and order of sentence dated 17.03.2005 passed by the learned Additional Judicial Commissioner-II, Khunti, in Sessions Trial No. 180 of 2001 corresponding to G.R. Case No. 335 of 2000, arising out of Sonahatu P.S. Case No. 28 of 2000 against the appellant.
19. Further, it has been pointed out that it is an offence of the year 2000 and this appellant at the time of the commission of the offence was about 32 years old and now he has become 55 years old over a period of time and there is nothing on record to show about the criminal history. Further, it is also found that this appellant had faced the trial in the court below along with the two co-accused persons who have been acquitted and this appellant has been convicted and further it appears from the record that this appellant has already remained in jail for a period of about four months.
20. Having taken into consideration all these facts, it is just and proper that this appellant is awarded sentence of 11 Cr. Appeal (SJ) No. 389 of 2005 imprisonment for the period already undergone.
21. Accordingly, this appeal is dismissed as above.
22. Since, the appellant is on bail he is discharged from the liabilities of bail bond.
23. Let the copy of the judgment be sent to the learned court below along with the copy of this judgment.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 02.05.2022/NAFR MM/-