Jharkhand High Court
Bhola Ram vs The State Of Jharkhand on 4 July, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 205 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 205 of 2005
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(Against the impugned judgment of conviction and order of sentence dated 05.02.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Palamau at Daltonganj in Sessions Trial No. 109/2004 corresponding to G.R. Case No. 667 of 2003 in connection with Hariharganj P.S. Case No. 32 of 2003 Palamau at Daltonganj, Jharkhand.)
1. Bhola Ram
2. Suraj Dev Ram
3. Teju Ram @ Tejan Ram All are sons of Munarik Ram
4. Manoj Ram Son of Bhola Ram
5. Kail Ram Son of Munarik Ram
6. Ram Kumar Ram @ Sanjay Ram Son of Tejan Ram
7. Laxman Ram Son of Suneshwar Ram
8. Ramjit Ram Son of Yugeshwar Ram
9. Yugeshwar Ram Son of Pahal Ram
10. Chulhan Ram Son of Jirakhan Ram
11. Binod Ram Son of Dwarik Ram
12. Upendra Ram Son of Chalitar Ram
13. Amardeo Ram Son of Chanar Ram ... ... Appellants Versus The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants: Mr. A.K. Sahani, Advocate Mr. Anand Kr. Pandey, Advocate For the Respondent: Mrs. Nehala Sharmin, A.P.P.
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2 Cr. Appeal (SJ) No. 205 of 2005 HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 05: Dated: 4th July, 2022
1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 05.02.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Palamau at Daltonganj in Sessions Trial No. 109/2004 corresponding to G.R. Case No. 667 of 2003 in connection with Hariharganj P.S. Case No. 32 of 2003 whereby and where under the appellants were convicted for the offence punishable u/s 326 and 323 read with section 149 of IPC and they were sentenced to undergo RI for four years under section 326 of IPC read with section 149 of IPC and a simple imprisonment of 1 year under section 323 of IPC read with section 149 of IPC. Both the sentences were directed to run concurrently.
2. Pursuant to the previous order a report was called for with respect to the status of the appellants and the said report has been received which is kept at flag X and from the perusal of the said period report it is found that the appellant no. 10 Birju Ram has expired and from death certificate its appears that he has died on 11.11.2017. It is submitted by the learned counsel for the appellants that let this appeal be abated with respect to the appellant Birju Ram as no near relatives has come forward to continue with this appeal on behalf of the deceased appellant. Accordingly, this appeal gets abated with respect to the deceased appellant and let his name be deleted from the cause title of memo of appeal, and the rest of the appellants have been renumbered.
3. The prosecution story arose in the wake of written statement of P.W. 1 Dharmendra Ram addressed to the Officer In charge of Hariharganj, P.S. Palamau where it has been alleged that on 21.05.2003 the daughter of one Bhola Ram was crossing to and fro before his door upon which the father of the informant had forbidden her because last night her father and brother had 3 Cr. Appeal (SJ) No. 205 of 2005 assaulted his children, thereupon the accused persons (Bhola Ram, Suraj Dev Ram, Tejan Ram, Kail Ram, Manoj Ram, Sanjay Ram, Laxman Ram, Ramjit Ram, Yugeshwar Ram, Birju Ram, Chulahan Ram, Binod Ram, Upendra Ram, Amardeo Ram) fourteen in numbers armed with Gadasa, Lathi, Bhala came at the door of the informant Dharmednra Ram and attacked on the family members of the informant. It is further the case of the prosecution that in the instant case the accused Bhola Ram assaulted informant's father with gadasa which resulted in hand injury, accused Tejan Ram also assaulted informant's father with Barchhi over temple region and caused injury and when the uncle of informant namely Jagdish Ram went there to rescue, accused Bhola Ram again assaulted with Gadassa to him. The informant Dharmendra Ram and Binesh Ram were targeted by accused Manoj and Suryadev with Lathi, which resulted in head injury. The reason for the incident has been disclosed in the prosecution case that on the previous night Dharmendra Ram, Binesh Ram, Nandu Ram and Akhilesh Ram had gone to see Barat at Chanar Yadav's door where the accused persons had assaulted them. The other reasons has been given in the prosecution case that two days' prior to the incident accused Manoj Ram, Sanjay Ram, Saroj Ram, Ramjit Ram and others while going to watch dance party had spoken some bad words at the door of the informant, over which the father of informant had scolded upon them.
4. Accordingly, the first Information report to the police was given in the form of aforesaid written complaint and it was registered as Hariharganj P.S. Case No. 32/03 under sections 147, 148, 149, 323, 341, 324, 326, 307 and 504 of IPC. After completion of the investigation Hariharganj Police submitted the charge sheet against all the fourteen named accused persons u/s 147, 148, 149, 341, 323, 324, 326, 307 and 504 of IPC. After taking cognizance the 4 Cr. Appeal (SJ) No. 205 of 2005 case was committed to the court of Sessions. The learned Additional Sessions Judge, Fast Track Court No. II, Palamau framed the charge under sections 148, 324/149, 307/149 of IPC on 17 May 2004. The learned trial court after conducting the trial found the accused appellants guilty for the offence punishable u/s 326/323 read with section 149 of IPC and passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal.
5. Heard Mr. A.K. Sahani, learned counsel for the appellants assisted by Mr. Anand Kr. Pandey, Advocate and Mrs. Nehala Sharmin, learned A.P.P. for the State.
Arguments on behalf of the appellants
6. Assailing the impugned judgment of conviction and order of sentence the learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence are not tenable in the eyes of law or in facts of the case as the learned trial court did not appreciate the inconsistency and the contradictions which came in the testimonies of the witnesses examined on behalf of the prosecution and also the delay in lodging the FIR which is unexplained. It has also been pointed out that there is no independent witnesses who have supported the case of the prosecution and the medical evidence did not support the ocular evidence and the learned trial court has committed gross error in arriving at the conclusion that the injuries caused to the injured Rajeshwar Ram P.W. 7 was grievous in nature for want to X-Ray report in order to ascertain the nature of fracture alleged to have been sustained by Rajeshwar Ram P.W.7. and the learned trial court has also not considered the case and counter case prevailing between the parties and it has also admitted case of the prosecution that they are gotias and further the learned trial court has also not taken into consideration the contradictions which have been 5 Cr. Appeal (SJ) No. 205 of 2005 brought on record with respect to the earlier statement of the witnesses examined by the I.O. during the course of the investigation particularly the statements of P.W. 2 Binesh Ram, P.W.1 Dharmendra Ram, P.W. 3 Mithilesh Ram and P.W. 4 ChandarYadav and, therefore, their versions are not reliable and hence, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside.
Arguments advanced on behalf of the State
7. Learned counsel appearing on behalf of the State vehemently opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the depositions of the witnesses vis-a-vis injury report duly proved by the doctor P.W. 10, who had examined injured persons and also opined that one of the injuries sustained by the P.W. 7 was grievous in nature and, therefore, the appellants have been rightly convicted for the offence punishable u/s 326/323 read with section 149 of I.P.C. and, therefore, there is no legal evidence to interfere in the impugned judgment of conviction and, this appeal is fit to be dismissed being devoid of merit.
Appraisal & Findings
8. Having heard the learned counsel for the parties, perused the record of this case including the Lower Court Record.
9. Further, it is found that to substantiate the charges the prosecution has examined 10 witnesses - P.W.-1 Dharmendra Ram (informant), P.W.-2 Binesh Ram (injured witness), P.W.-3 Mithilesh Ram, P.W.-4 Chander Yadav, P.W.-5 Rajeshi Bhuian, P.W.-6 Ram Prabesh Yadav, P.W.-7 Rajeshwar Ram (injured witness), P.W.-8 Jagdish Ram (another injured witness), P.W.-9 Anjani Kumar (I.O. of the case), and P.W.-10 Dr. Sunil Kumar who medically examined the 6 Cr. Appeal (SJ) No. 205 of 2005 injured. Apart from this several documentary evidences have also brought on record as Exhibit-1 series, Ext.1/1, Ext.1/2, Exhibit-2, Exhibit-3 series, Ext.3/1,3/2,3/3, Exhibit-4 series, 4/1,4/2,4/3 and Exhibit-4/4.
10. It is admitted case of the prosecution that both the parties are gotias being the descendants of the common ancestor and it is also the admitted case of the prosecution that there is a case and counter case between the parties and there is a free fight between both of them being first door neighbor. The FIR which has been instituted by the appellant no. 1 Bhola Ram at Ext. A as a counter case, which has been duly admitted by the prosecution witnesses also including the I.O. P.W. 9. In this background, this Court proceeds to examine the witnesses examined on behalf of the prosecution, in order to substantiate the veracity of the impugned judgment of conviction and order of sentence passed by the learned court below.
11. P.W. 1 Dharmendra Ram was injured and he has supported the case of the prosecution to the extent that the accused persons had injured altogether four persons including him, Rajeshwar Ram (P.W. 7), Biensh Ram (P.W. 2), and (P.W. 8) Jagdish Ram. This witness has stated that the accused appellant Bhola Ram had inflicted gadassa injury over his father (P.W. 7 Rajeshwar Ram), but, the version of this witness has been falsified in the statements given by the another witness Mithilesh Ram before the I.O. (P.W. 9) where they have stated that Bhola Ram had assaulted by Gadassa to Rajeshwar Ram was not given in the version of Mithilesh Ram and, therefore, injuries alleged to have been inflicted by Bhola Ram by gadassa upon the victim Rajeshwar Ram becomes doubtful, but, the facts remained to be taken into consideration is that all the accused persons had assaulted in the free fight which commenced between both the parties which is an admitted fact being a case and counter case in which this witness Dharmednra Ram (P.W.-1), Rajeshwar 7 Cr. Appeal (SJ) No. 205 of 2005 Ram (P.W.7), Binesh Ram (P.W. 2) and Jagdish Ram (P.W.-8) had sustained the injuries.
12. Similarly, P.W. 2 Binesh Ram has also stated that on the date of occurrence i.e. 21.05.2003 the accused appellants had inflicted injury upon the family members of the prosecution party including him (Binesh Ram), P.W. 7 Rajeshwar Ram. P.W. 1 Dharmendra Ram and P.W. 8 Jagdish Ram by lethal/several weapons. But, the prosecution has failed to bring into the evidence any one of the means/weapons which has been used in the commission of the offence and no material exhibit of weapon has been brought on record by the prosecution. The defence has drawn the attention of this Court on para 13 of the I.O.(P.W. 9) on the specific point about the occurrence of the preceding night of the alleged occurrence when abusive languages were alleged to have been used by the accused persons.Thus, the statement given by the informant in the FIR and also in his deposition that the cause of the occurrence was that on the preceding night Manoj Ram, Sanjay Ram, Ramjit Ram had gone to see the dance and they had used some abusive words upon the informant people upon which P.W. 7 had protested and, thereafter, on the next day this occurrence had taken place, but this fact has been specifically denied by this witness P.W. 2 in his earlier statement vide para 13 of the I.O. P.W. 9 who categorically stated that such statement was not given by P.W. 2 Binesh Ram and thus the cause which has been set out in the FIR by the informant is not substantiated and, thus, the case of the prosecution for the cause of the occurrence becomes doubtful.
13. P.W. 3 Mithilesh Ram has stated that all the accused appellants assembled and caused injuries upon them and specifically stated that the accused Bhola Ram had assaulted Rajeshwar Ram by gadassa which resulted in injury in his wrist, but, the defence has drawn the attention on the statement of I.O. (P.W. 9) 8 Cr. Appeal (SJ) No. 205 of 2005 on para 14 where I.O. has said that P.W.-3 Mithilesh Ram has not stated that Bhola Ram has assaulted by Gadassa by which Rajeswar Ram and Jagdish had sustained injuries in hand and on fingers. The veracity of the disposition of this witness becomes doubtful, but, he has supported the case of the prosecution that the accused persons had assaulted by which the injuries were sustained by the injured persons.
14. P.W. 4 Chandar Yadav had deposed that on the date of occurrence the accused persons came with lathi and gadasa and other weapons and assaulted upon the informant people by which Rajeshwar Ram (P.W. 7) had sustained injuries in his hand and one of the fingers in the left hand of Jagdish Ram was also mutilated. This witness had not stated in his earlier statement before the I.O. that Bhola Ram was holding gadasa in his hand and thus the assault by gadasa by which the grievous injury is said to have been caused to P.W. 7 Rajeswar Ram is not substantiated
15. P.W. 5 Rajeshi Bhuiyan is a hearsay witness and he had also seen the injuries on the injured person including Rajeshwar Ram which was said to have been caused by the accused appellant Bhola Ram.
16. P.W. 7 Rajeshwar Ram was one of the injured persons and the father of the informant and had supported the case of the prosecution to the extent that all the accused persons had come and inflicted injury upon him and his brother and son including P.W. 1 Dharmendra Ram and P.W. 2 Binesh Ram and P.W. 8 Jagdish Ram. This witness admitted that there was a case and counter case between the parties. P.W. 7 had stated in his deposition that the injured Jagdish Ram P.W. 8 had lost his one finger which is totally falsified from the deposition of P.W. 10 doctor who had examined the injured P.W.8 Jagdish Ram and did not find that one finger was mutilated and removed from his hand.
9 Cr. Appeal (SJ) No. 205 of 2005
17. P.W. 8 Jagdish Ram was another injured witness who supported the case of the prosecution by stating that the accused appellant had assaulted them by which four persons including him were injured P.W. 1-Dharmendra Ram, P.W. 2- Binesh Ram, P.W. 7 Rajeshwar Ram and he himself (P.W. 8- Jagdish Ram). He had also stated that one of the fingers was mutilated and removed from his hand but this version is not substantiated from the deposition of the doctor and injury report (vide injury report Ext. 4/2 of Jagdish Ram) and P.W.-9.
18. P.W. 9 Anjani Kumar is the I.O. of this case and he had deposed that there was a case and counter case between the parties. He had also drawn the attention on the earlier statement of witnesses particularly with respect to the earlier assault of gadasa by the appellant Bhola Ram by which major contradictions were found in the deposition of Mithilesh Ram, and P.W. 1- Dharmendra Ram and P.W. 2 - Binesh Ram. Further, this witness in his cross examination has stated in para 7 that he did not find any blood stained on the cloth of the injured persons and he supported the defence taken on behalf of the appellants that the injuries which are alleged to have been inflicted were not grievous in nature rather it was simple in nature.
19. P.W. 10- Dr. Sunil Kumar, the doctor had examined the injured persons on 21.05.2003 P.W.1-Dharmendra Ram, P.W.2- Binesh Ram, P.W.8 Jagdish Ram and P.W. 7 -Rajeswar Ram. The doctor had also proved injuries reports of these persons prepared in his own writing as Exhibit-4, Ext.-4/1, Ext. 4/2 and Ext. 4/3. The doctor also prepared supplementary injury reports which has been proved by him as Ext. 4/4.
The doctor had found the following injury upon the person of the injured Dharmendra Ram which is marked as Ext. 4:
(i) On crown head lacerated wound 1"x1/4"x skin deep.
10 Cr. Appeal (SJ) No. 205 of 2005
(ii) Complained of body ache.
The doctor has opined that the injury has been caused by hard and blunt substance and nature of injury is simple.
The doctor has examined the Binesh Ram and found the following injury on the person of injured Binesh Ram which is marked as Ext. 4/1
(i) On crown of head lacerated wound 1 ½"X1/4" x skin deep.
(ii) On occipital area lacerated wound 1" long skin deep.
(iii) Complain of body ache.
Both the injuries are simple in nature and caused by hard and blunt substance.
The doctor while examining another injured P.W. 8- Jagdish Ram observed following injuries on the person of Jagdish Ram:
I) Lacerated wound near right eye ½" in diameter.
II) On right thumb scratch mark.
III) On left hand multiple cut mark found including thumb,
blood oozing out.
The doctor recommended the X-ray for injury no. III. In the opinion of doctor this injury was caused by sharp weapon and other two were caused by hard and blunt substance and injury report is marked as Ext.4/2 and opinion was reserved for want of X-Ray.
The doctor had further found two injuries on the person of injured P.W. 7- Rajeshwar Ram as the first was a cut mark near wrist on left hand and blood was oozing out and the second was left thumb cut injuries: no dimension of these injuries has been given by the doctor and proved his injury report marked as Ext.4/3 and the opinion was reserved for want of X-Ray report.
In the supplementary report P.W. 7- Rajeshwar Ram was prepared by the doctor where it has been observed that fracture of bone of left forearm thumb side on the basis of X-ray report submitted by him and the same was grievous in the opinion of the 11 Cr. Appeal (SJ) No. 205 of 2005 doctor which is not falling in line with injury report of P.W. 7- Rajeshwar Ram which is Ext. 4/3 in absence of the X-ray report proved by the doctor and brought on record and further major inconsistency is found in the injury report and X-ray report. Admittedly, the said X-Ray report upon which the doctor has formed the opinion is also not trustworthy and reliable because the same has not been brought on record and the doctor K.K. Singh who is said to have conducted the X-ray has not been examined. But, no X-Ray report of Jagdish Ram was provided to the doctor on behalf of the prosecution by which he could ascertain surely that the injury was grievous in nature. Hence, reserved opinion regarding said injury to Jagdish Ram was reported simple by P.W.10. In the cross examination doctor has deposed that none of the injuries to any injured was dangerous. Supplementary injury report was not prepared in his presence and marked as Ext.4/4.
In the light of aforesaid injuries reports and the deposition of the Doctor, the opinion which was given by the doctor with respect to one injury of Rajeshwar Ram was not substantiated inasmuch the doctor P.W.10 himself deposed that none of injuries was dangerous to life nor it is manifest from his injury report Ext.-4/3. The learned defence counsel has rightly relied upon the rulings of this Court as observed in the case of Gulu Gupta @ Kamal Kishore Gupta &Anr. Vs. State of Jharkhand as reported in 2013 (2) JCR 149 (Jhr) where under the circumstances of this case it is found as under para 9:
9. Having heard learned counsels for both the sides and upon going through the records, I find that from the evidence of PW-6, Dinesh Kumar Pathak it appears that he had given the opinion about the fracture without there being any X-ray examination. No X-ray report has been proved by the prosecution. In that view of the matter, I am of the considered view that the opinion about the fracture on the frontal bone given without any X-ray examination, cannot be relied upon and accordingly, the prosecution has failed to prove beyond any reasonable doubt that there was any grievous injury on the informant and as such, the conviction of the petitioner Gulu Gupta @ Kamal Kishore Gupta for the offence under Section 326 of the I.P.C., cannot be sustained in the
12 Cr. Appeal (SJ) No. 205 of 2005 eyes of law. I further find that the defence has brought on record the evidence to show that there was a case and counter case between the parties, in which the defence side was also assaulted and injured on the same date, place and time of the occurrence. The certified copy of the order sheet in T.R. Case No. 1011 of 1997 / P.C.R. Case No. 277 of 1996 has been proved by the prosecution itself, which was marked as Annexure
- 5. Though the counter case had culminated in submission of the final form and protest petition filed against it, was also rejected, but the position remains that the defence has been able to create a bona fide doubt in the prosecution case and in the facts of this case, petitioners were entitled at least to the benefit of doubt.
20. Having appreciated the testimonies of the doctor P.W. 10 and injury reports i.e Ext. 4 series and in the light of the appreciations of the depositions of the witnesses as discussed in foregoing paragraphs by this Court, it is found that the learned trial court has committed gross error in finding the guilt of accused appellants for the offence punishable u/s 326 read with section 149 of I.P.C. for want of cogent evidence to substantiate the offence punishable u/s 326 of IPC and it is a case where the prosecution has been able to prove successfully only the guilt of the accused persons for the offence punishable u/s 323 of IPC read with section 149 of IPC. Accordingly, in the light of the aforesaid evidences, this Court upholds the conviction of the accused appellants for the offence punishable u/s 323 of IPC read with section 149 of IPC and hence, the impugned judgment of conviction and order of sentence as passed against the accused appellants for the offence punishable u/s 326 read with 149 of IPC is set aside and the conviction of the accused-appellants are sustained only for the offence punishable u/s 323 read with section 149 of I.P.C.
21. Now, the learned defence counsel appearing on behalf of the appellants submitted that these appellants have been suffering from the misery and trauma of criminal prosecution since last 19 years and most of the appellants have become very old over a period of time and, therefore, a lenient view may be taken in awarding the sentence for the offence punishable u/s 323/149 of IPC.
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22. In the backdrop, having taking into consideration the various mitigating factors for imposing sentence that both the parties are gotias of each other, admittedly there is a case and counter case between the parties and further there is nothing on record to show criminal history of any of the appellant and all the appellants have been suffering from the trauma and miseries of the criminal prosecution for a long period of time i.e. from 2003 onwards and, therefore, in view of all these factors this Court finds that no substantive purpose would be served to send them again in jail and the ends of justice would be met out to award the sentence of imprisonment already undergone by the accused appellants. Accordingly, all appellants are sentenced to the imprisonment for a term of period already undergone by them by setting aside the impugned order of sentence passed by the learned trial court for the offence punishable under section 323 read with section 149 of IPC. Since all the appellants are on bail they are discharged from the liabilities of bail bonds.
23. In this view of the matter, this appeal is dismissed as above.
24. Let the LCR be sent back to the concerned court below along with the copy of this judgment.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 04.07.2022/NAFR MM/-