Jharkhand High Court
Bhukhan Sao vs The State Of Jharkhand on 7 January, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 970 of 2003
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 970 of 2003
(Against the Judgment of conviction and order of sentence dated 20th
June 2003 passed by the learned Additional District and Sessions
Judge, FTC-1, Gumla in S.T. No.269 of 1995, arising out of Sisai P.S.
Case No.46 of 95, corresponding to G.R. No.361 of 95)
1. Bhukhan Sao
2. Mukund Sao
3. Bharat Sao ... Appellants
Versus
The State of Jharkhand ... Respondent
---
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
---
For the Appellants : Mr. Tejo Mistry, Advocate
For the State : Mr. Naveen Kr. Gaunjhu, A.P.P.
C.A.V. on : 29.10.2021 Pronounced On :07.01.2022
This appeal is directed against the Judgment of conviction and order of sentence dated 20th June 2003 passed by the learned Additional District and Sessions Judge, FTC-1, Gumla in S.T. No.269 of 1995, arising out of Sisai P.S. Case No.46 of 95 dated 27.05.1995, corresponding to G.R. No.361 of 95, whereby and whereunder the appellants stand convicted under Section 324/34 of the IPC and sentenced to undergo R.I. for 2 years and a fine of Rs.1,000/- each and in default of payment of fine, they are further sentenced to undergo three months S.I. and after realisation of fine 50% of amount will be given to Dwarika Sao as compensation.
2. The allegation against the accused appellants arose in the wake of fardbeyan of Ganesh Sao, son of Dirpal Sao of village: Sakraili, P.S. Sisai, district-Gumla, written by S.I. officer in-charge, Sisai on 27.5.1995 at 12 hours at referral hospital, Sisai. The said informant Ganesh Sao (PW - 7) alleged that on 27.05.1995 at about 9 am in the morning, he saw from his house that his paddy crops sown in the field was being ploughed by his cousin Mukund Sao, son of Bhukhan Sao and the said Bhukhan Sao, (uncle of the informant) and his son Bharat Sao were also standing there. The informant further alleged that he informed his elder brother Dwarika Sao (PW -1) and he went to his field along with him, which was situated at the southern side of the village and tried to 2 Cr. Appeal (SJ) No. 970 of 2003 stop Mukund Sao (Appellant no.2) from ploughing the field, upon which, the said Bharat Sao (Appellant No.3) got angry and assaulted Dwarika Sao with lathi, on his leg, due to which, he fell down. He further alleged that Bhukhan Sao assaulted Dwarika Sao on the head by Bhujali, then Dwarika Sao become unconscious. The informant tried to stop him, then Bhukhan Sao (Appellant No.1), Bharat Sao (Appellant No.3) and Mukund Sao (Appellant No.2) assaulted him with lathi and bhujali, due to which, he sustained injuries on his head, both the legs and left hand. It has further been alleged by the informant that he raised hulla, upon which, villagers assembled there and the accused persons fled away. It has further been alleged by the informant that the accused appellants were forcibly ploughing their field and when they resisted the accused-appellants, in order to kill, they assaulted them with lathi, bhujali and inflicted injuries upon them. Thereafter, the injured persons were taken to Referral Hospital, Sisai, where they had undergone treatment.
On the basis of the aforesaid fardbeyan, the Sisai police registered a case vide Sisai P.S. Case No.46 of 1995 and investigation of the case was assigned to Awdhesh Thakur, ASI, Sisai police station. Fardbeyan (Ext. 3) was signed by Ganesh Sao (PW - 7) and Sadhu Sao (PW-3) which has been marked as Ext. 2 and 2/1.
After investigation, the investigating officer submitted the charge-sheet against the accused appellants and thereafter the case was committed to the Court of Sessions for the trial. It appears that on commitment of the case, the learned trial court framed the charge against the accused appellants for the offence under Section 307/34 of the IPC on 4.12.1996 and after conducting the trial, convicted the accused appellants for the offences under Section 324 / 34 of the IPC and acquitted them for the charges punishable under Section 307/34 of the IPC by the impugned judgment of conviction and order of sentence dated 20.06.2003, which is under challenge.
3. Heard Mr. Tejo Mistry learned defence counsel and Mr. Naveen Kr. Gaunjhu, APP appearing on behalf of the State.
4. Assailing the impugned judgment of conviction and order of 3 Cr. Appeal (SJ) No. 970 of 2003 sentence, learned defence counsel appearing on behalf of the appellants contended that the investigating officer and the doctor have not been examined by the prosecution and it has caused serious prejudice to the case of the appellants and the witnesses examined on behalf of the prosecution have given contradictory statements, particularly with respect to the manner of offence took place and therefore, it is argued that the conviction of the appellants in the absence of the injury report cannot be sustained in the eyes of law.
It has been pointed out on behalf of the defence counsel that the informant Ganesh Sao (PW - 7) stated that he become unconscious and regained his consciousness on 28.05.95 at 4 pm, but the fardbeyna was of 12 O' clock in the noon, which was said to have been duly signed by him and thus the case of the prosecution is falsified on the point that when Ganesh Sao (PW - 7) was unconscious, then how he signed the fardbeyan on 27.05.1995, when he was unconscious till 28.05.1995 at 4 pm. Further, it has been stated on behalf of the appellants that PW
- 1 Dwarika Sao (brother of the informant), PW - 2 Dirpal Sao (father of the informant) and PW - 7 Ganesh Sao, (informant) were the interested witnesses and no any independent witness have supported the case of the prosecution and thus the learned trial court has committed error in holding the appellants guilty on the basis of the oral testimony alone in absence of injury report for the offence punishable under Section 324/34 of the IPC as the learned trial court has failed to appreciate the non-examination of the I.O. and the doctor, which has damaged the case of the prosecution and thus the impugned judgment of conviction and order of sentence is bad in law, in fact, it is fit to be set-aside.
5. On the other hand, learned counsel for the State has vehemently opposed the contention of the learned counsel for the appellants and submitted that the learned court below has not committed any error.
6. Having heard learned counsel for the parties, perused the record of the case including the lower court record.
4 Cr. Appeal (SJ) No. 970 of 2003
7. It is admitted case of the prosecution that PW - 7 Ganesh Sao (informant) is the cousin of the appellant No.2 Mukund Sao and appellant No.3 Bharat Sao and appellant No.1 Bhukhan Sao were his cousin and his uncle respectively. It is also admitted case of the prosecution as stated by PW - 7 Ganesh Sao in his deposition also that there was land dispute between them and if the land would be given to them, the case would be compromised. It has also been stated categorically in unequivocal words that the case had been lodged only in order to get the land. Although he explicitly stated that the land was not belonging in his name and all the documents were standing in the name of one Anup Sahu. In his examination in Chief and also in the cross examination, PW-7 Ganesh Sao had stated that he had become unconscious, when all the three accused persons had assaulted him by lathi, danda, by which, he become unconscious and he regained his consciousness on the next day in Sisai Hospital.
It has been rightly pointed out by the learned defence counsel that when he had become unconscious after sustaining injuries and he regained his consciousness on the next day, then how was his statement was recorded on the date of occurrence at 12 O' clock on 27.05.1995 itself, when he himself had stated that he regained his consciousness on 28.05.1995. It corroborates his own truthful version that this case has been instituted only to get the landed properties and he was not neither assaulted by the accused-appellants nor became unconscious. The falsity of the prosecution case further gets strengthened due to the fact that neither the I.O. nor the doctor has been examined nor injury report has been brought on record in this case and hence the injuries remain unproved and as such the alleged assault also remained uncorroborated.
Further this witness P.W.7 is said to have proved his signature on the fardbeyan,(Ext.3) which is marked as Ext. -2 and also the signature of Sadhu Sao, which is marked as Ext. 2/1 and it is a major contradictions about his becoming unconscious, vis-a-vis the date and time of recording of the fardbeyan and thus the case of the prosecution gets falsified due to the non-examination of I.O. Therefore the genesis 5 Cr. Appeal (SJ) No. 970 of 2003 of invoking the offence punishable under Section 324 of the IPC that is "voluntarily causing heart by dangerous weapon or means" does not get support from the version of the injured witness PW- 7 Ganesh Sao himself and he becomes unreliable witness.
Further neither the injury report has been brought on record, nor the doctor has been examined and therefore the case of the prosecution for the offence punishable under Section 324/34 of the IPC does not get corroborated.
8. Another eyewitness PW - 1 Dwarika Sao is also admittedly the cousin of the appellants PW-2 Mukund Sao and PW - 3 Bharat Sao and brother of the informant PW -7 Ganesh Sao who had informed him that the accused appellants were ploughing their field, which was situated in the southern side of the village and then this witness PW - 1 Dwarika Sao had accompanied the PW - 7 Ganesh Sao to the field, which is said to be the place of occurrence and it has been stated that the appellant No.3 Bharat Sao was holding lathi and bhujali, but neither lathi nor the bhujali was produced or seized by the I.O., nor the I.O. has been examined. No injury report of this witness Dwarika Sao PW - 1 has also been brought on record and the doctor who treated him has also not been examined and thus the offence of causing heart by dangerous weapon or means is not substantiated by the version of this inured witness of PW - 1 Dwarika Sao. This witness PW - 1 Dwarika Sao had stated that he had become unconscious by the assault of the accused appellants and PW - 7 Ganesh Sao had tried to stop them in order to rescue his brother P.W.1,and the said Ganesh Sao was assaulted by the accused appellants. P.W.1 further stated that he had regained consciousness after 2 to 4 days in RMCH, Ranchi. PW - 1 Dwarika Sao has also admitted that the dispute arose because of the cultivation on the landed property and there is no any slightest evidence stated by this victim witness PW - 1 Dwarika Sao in order to substantiate the charges levelled against the accused appellants.
9. PW - 2 Dirpal Sao, who is the father of PW - 1 Dwarika Sao and PW -7 Ganesh Sao. He is a hearsay witness as he himself had stated that it was Ganesh Sao, who had told to him that he was 6 Cr. Appeal (SJ) No. 970 of 2003 assaulted by the appellants Bharat, Mukund and Bhukhan Sao. In the cross-examination vide para - 7, he had stated that when he had gone to the place of occurrence in the field, he had seen Dwarika Sao (PW -
1) and Ganesh Sao (PW -7) sitting silently. Thus the statement of this witness PW - 2 Dirpal Sao does not corroborate with the versions of the prosecution that the injuries alleged to have been inflicted upon the victims PW -1 Dwarika Sao and PW -7 Ganesh Sao were caused by the dangerous weapon, by which, they had become unconscious, inasmuch as, they were sitting on the place of occurrence as categorically told by this witness P.W.2 and thus it is manifest that the prosecution has failed to substantiate the offence punishable under section 324/34 of IPC against the appellants.This witness further stated in para-10 that he had not informed to Chaukidar Suraj Oraon of the village about the incident or in the Panchayat. It shows that there was no such incident took place which is in consonance with the version of the informant P.W.7 Ganesh Sao who deposed in black and white that he had instituted this case to get the landed property as neither the Chaukidar was informed nor Panchayati of the village was convened or informed. Thus this witness also does not support the case of the prosecution.
10. PW - 3 is Sadhu Sao, who stated that he was working in the field on the date of occurrence. This witness has been declared hostile as he had stated that he had heard the noise (hulla-gulla) about 12 O' clock that the agriculture field of Dirpal Sao and Bhukhan Sao was ploughed. This witness categorically stated in the cross-examination conducted on behalf of the prosecution that he was not examined by the police and as such non examination of the I.O. caused prejudice to the accused-appellants in order to evaluate the truthfulness of the case of the prosecution.
11. PW - 4 is Jageshwar Sao and he had denied to sign on the seizure list. This witness has also been declared hostile. He had stated that he did not know about the incident.
12. PW - 5 was Parmeshwar Sao, who was examined on behalf of the prosecution and he had signed on the seizure list, which has been 7 Cr. Appeal (SJ) No. 970 of 2003 marked as Ext. - 1. He further stated that he had not seen any article seized before him and he also does not know as to where he had put his signature.
13. PW - 6 was the Mahabir Sao. He had stated that he does not know anything about the incident and this witness has also been declared hostile.
14. PW - 8 Uday Singh, who is an advocate's clerk and writing and signature of the then Officer-in-Charge of the police station Mahendra Ram in the Fardbeyan and in the formal FIR has been identified by him by which the Fardbeyan has been marked as Ext.- 3 and the formal FIR has been marked as Ext. - 4. Further this Advocate's clerk witness has got marked the Case Diary running from page 1 to 34, which was in the writing and signature of Awdhesh Thakur and this has been marked as Ext. - 5.
In the back drop the Fardbeyan and the formal FIR, which has been identified and marked as Ext. - 3 and 4 are also not the legal evidences to be taken into account in view of the fact that it has been identified and marked by advocate's clerk P.W.8 who in the cross- examination, candidly stated that he had never have an opportunity to work with the officer-in-charge Mahendra Ram nor with Awdhesh Thakur who is said to be I.O. of this case. P.W. 8 also stated that he had never seen them either writing or reading and therefore even the identification of their hand-writing and signature by this witness P.W.8 is farce and legally ridiculous and it is meaningless to record his deposition. This court is unable to understand that as to why the prosecution did not choose to examine any police personnel. It may be true that in spite of several steps taken, the prosecution could not procure the attendance of I.O. who investigated the case and submitted the Charge- Sheet. Thus the correctness of the statement of the witnesses examined during the course of the investigation and subsequently in the trial ,particularly P.W.1, P.W.2 &P.W.7 upon which the learned trial court has relied, although the attention of the witnesses examined during trial has been drawn to their previous statements before the police during 8 Cr. Appeal (SJ) No. 970 of 2003 course of investigation, had not been tested by cross-examining the Investigating Officer and since the learned Trial Court has convicted the appellants relying upon the statements of P.W.1, P.W.2 & P.W.7 the impugned judgment of conviction has occasioned great miscarriage of Justice for Accused-appellants.
15. In this manner, neither the formal FIR, including the time, place, and the day of the alleged incident has been substantiated nor the version of the witnesses examined during the course of the investigation by the police have been put to test in the cross- examination by the accused persons in this case which caused serious prejudice.
16. It is well settled that the entries of the Police Diary are neither substantive nor corroborative evidence and they cannot be used by or against any other witness than the Police Officer. The investigating officer has a right to refresh his memory and can refer to Case Diary and the accused is vested with power to use the Case Diary with respect to the statement recorded during investigation for the purpose of contradiction and inconsistency in the statement of the witnesses recorded by the police during the course of investigation. Even the I.O. in the present case has not been examined and the entries of the case diary has been identified and marked by Advocates's clerk as Ext. 5 which cannot be used as legally admissible evidence to appreciate. The learned trial court has committed gross error.
17. Recapitulating the aforesaid discussions, it is well founded that the prosecution has been able to examine eight witnesses during the course of trial, but neither the I.O. nor the doctor in this case has been examined. Most of the witnesses have been declared hostile. Two witnesses are said to be the victims, i.e. PW - 1 Dwarika Sao and PW - 7 Ganesh Sao and both are brothers. It is also admitted case of the prosecution that the appellant No.1 is the uncle and the appellant No.2 and 3 are the cousins of the victims PW - 1 and PW - 7. It is also admitted case of the prosecution that there has been a dispute of landed property and if the land is given by the appellants to the informant people the matter would be compromised and this case has 9 Cr. Appeal (SJ) No. 970 of 2003 been instituted only to take the land as stated by the P.W.7 which has been discussed elaborately in the foregoing paragraphs. The formal witness PW - 8 has been examined, who is an advocate's clerk and on whose version, the writing of the fardbeyan has been identified, which is marked as Ext. - 3 and similarly the formal FIR has been marked as Ext. 4 and also the contents of the case diary running from 1 to 34 has been marked as Ext. 5. It is surprising that the learned trial court did not apply its judicial mind and marked the fardbeyan, FIR and the Case Diary as exhibits by the advocate's clerk and not by the maker of the documents. Neither the doctor has been examined nor the injury report has been brought on record.
18. Thus, this Court having gone through the aforesaid discussions, it is found that the learned trial court has committed the error in holding the guilt of the accused appellants for the offence under Sections 324 /34 of IPC and conviction is not sustainable in the eyes of law for the reasons stated above.
19. Accordingly, the impugned judgment of conviction and order of sentence dated 20.06.2003 passed by learned Additional District & Seesions Judge F.T.C.-I Gumla in Sessions Trial No. 269 of 1995 are set aside and appeal is allowed. All the accused persons namely Bhukhan Sao, Mukund Sao and Bharat Sao are acquitted and they are discharged from the liabilities of the bail bond.
20. Let the lower court records be sent back forthwith to the lower court concerned.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi.
Dated: 07.01.2022 R.Kumar/N.A.F.R