Jharkhand High Court
Jokhan Mochi vs State Of Jharkhand on 15 June, 2017
Author: Ananda Sen
Bench: Ananda Sen
1
Cr. Appeal (S.J) No. 337 of 2003
(Against the judgment of conviction dated 09.01.2003 and order of
sentence dated 10.01.2003 passed by Sri Ramanuj Narain, learned
7th Additional District and Sessions Judge, Palamau at Daltonganj,
in S.T. No. 199 of 1990)
Jokhan Mochi, son of Somaru Mochi, resident of village-
Rewratu, P.S. Lesliganj, District-Palamau ... ... Appellant
Versus
The State of Jharkhand ..... Respondent
.....
For the Appellant : Mr. A.K.Kashyap, Advocate
For the State : A.P.P
PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
By Court:-
The appellant has challenged judgment of conviction dated 09.01.2003 and order of sentence dated 10.01.2003 passed by 7th Additional District and Sessions Judge, Palamau at Daltonganj, whereby this sole appellant has been convicted for offence under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and further directed to pay a fine of Rs. 1000/- and in default of payment of fine he was further directed to undergo S.I. for one month.
2. The prosecution case is based upon the fardbeyan of one Banarsi Yadav S/o Debki Yadav mentioning that, while his son Mohan Yadav was grazing his buffalo at Matkhan Gabra near village Dhawadih on 16.05.1989 at about 5.00 P.M, Tetar Mochi brother of the accused was cutting grass at the same place. The buffalo of his son grazed some grass which was cut by Tetar Mochi, for that some altercation had taken place between Tetar Mochi and son of the informant. Then suddenly this appellant who happens to be the brother of Tetar Mochi, came with a lathi and gave three blows on the head, neck and on the body of his son. His son immediately fell down and 2 become unconscious and thereafter, he was taken to the hospital at Temagarh. The informant further submits that he was not present in the village at that point of time but this incident was witnessed by Rama Bhuiyan and others. On the basis of the said statement Lesliganj P.S. Case No. 31 of 1989 was registered under Sections 323 and 307 of the Indian Penal Code.
3. The police investigated the case and thereafter charge-sheet was submitted. After taking cognizance the accused was committed to the Court of Sessions.
4. Charges were framed under Sections 307 and 323 of the Indian Penal Code and as the appellant pleaded innocence, he was put on trial. The defence of the appellant is that he is absolutely innocent and in fact the victim Mohan Yadav fell from a tree as a result of which he sustained injuries.
5. In order to prove the case, the prosecution had examined altogether 13 witnesses. The formal F.I.R, the signature on the F.I.R, the written report, X-ray plate of the injured and injury report were duly exhibited.
6. After closure of the prosecution evidence, the statement of the accused person was recorded under Section 313 of the Cr. P.C. The defence has not examined any witness.
7. After hearing learned counsel appearing on behalf of the appellant and learned counsel for the State and after considering the evidence on record the trial Court convicted the appellant for offence under Section 307 of the Indian Penal Code and sentenced to him undergo rigors imprisonment for seven 3 years and directed to pay fine of Rs. 1000/-. In default of payment of fine he was further directed to serve simple imprisonment for one month.
8. Aggrieved by the said judgment of conviction and order of sentence the sole accused has preferred this criminal appeal.
9. I have heard, learned counsel for the appellant but no one appears on behalf of the State to argue the case.
10. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case and in fact the victim has fallen from a tree which resulted in the injuries. He further submitted that the evidence led on behalf of the prosecution does not conclude that this appellant has committed any offence. He submits that even if the prosecution case is taken to be true, the prosecution has failed to prove that there was any motive on the part of the appellant to commit murder of the victim Mohan Yadav, thus no offence under Section 307 of the I.P.C. is made out. He further submits that the evidence of doctor clearly suggest that there was only one blow which contradicts the evidence of the P.Ws and supported the defence versions. He lastly submits that the doctor has also opined that this injury is possible if a person falls from a tree.
11. Altogether 13 witnesses have been examined in this Case.
12. P.Ws. 1 and 2 are the formal witnesses who have exhibited the F.I.R and proved the endorsement of one Anant Pd. Yadav in the written report. P.Ws. 9 and 12 are tendered 4 witnesses. P.W.3 is the mother of the victim. Admittedly, she is not an eye witness to the said occurrence. She has deposed that her son had gone to Matkhani Gabra for grazing his buffalo and when she heard hulla that her son was assaulted by this appellant then she reached the place of occurrence and found her son unconscious having injuries on his hand and neck. She has also deposed that Kameshwar Yadav (P.W.4) has seen the assault on her son. P.W.4 is (Kameshwar Yadav) who deposed that he was also grazing his buffalo at the same place where the victim was present. He further deposed that when he heard the hue and cry of Mohan Yadav he went near Mohan Yadav and saw that this appellant assaulting Mohan Yadav on his head and neck by lathi. Mohan Yadav fell down and become unconscious thereafter, the appellant fled away from the place of occurrence. He further deposed that he along with the others brought the injured to the hospital. He stated that the brother of the accused was cutting grass and the bufallo of the injured went and ate the grass which was cut by the brother of this appellant which resulted in this occurrence. He stated that he was the first person who went to the place of occurrence as he was 10 feet away from the said place. He stated that Raghuni Yadav, Malu Yadav, Chakarbaorty Yadav also reached the place of occurrence. Rambadan Yadav and Dayali Yadav were grazing their cattles at the same place before the occurrence. P.W.-5 is Rambadan Yadav. He deposed that he was also grazing his cattle and Tetar Mochi was cutting grass. The buffalo of Mohan Yadav ate the grass due to which there was a verbal altercation 5 between Tetar Mochi and victim Mohan Yadav and when the victim was opposing, this appellant who happens to be the brother of Tetar Mochi came with a lathi and assaulted the victim on his head and shoulder. P.W-6 is Diyali Yadav. He was also grazing cattle nearby, and confirms the presence of Rambadan Yadav at the place of occurrence. He supports the prosecution story as it is. He states that he was the first person who reached to Mohan Yadav. He confirms the prosecution version that the accused after assaulting, left the place of occurrence. He denies the suggestion that Mohan Yadav fell from the tree. P.W.7 is Mallu Mahto. He was also grazing his cattle. He supports the entire prosecution story as narrated by the prosecution witnesses without any discrepancy. P.W.8 is Mohan Yadav who is the injured. He states that he went with his buffalo for grazing. He took his buffalo at the place of grazing when the buffalo ate the grass cut by brother of the appellant and thereafter some verbal altercation amongst them had taken place and suddenly the brother of the appellant came with lathi and gave blows on his head, neck and shoulder. He deposed that because of the said assault he became unconscious and thereafter taken to the hospital at Ranchi. He further deposed that because of the said assault he became handicapped and cannot talk properly. It is important to note here that the learned judge who recorded the depositions has recorded that the witness cannot speak fluently and walks with the help of stick. This witness was cross-examined, but defence could not demolish him. P.W.9 is tendered witness. P.W.10 is 6 father of the victim and the informant himself. Admittedly he is not an eye witness. He was not present in his village but after returning he have heard the entire story. He went to the hospital to see his son who was unconscious. On his fardbeyan the F.I.R was lodged. He stated that he has received information from his wife and other persons. He confirms that his son was treated and radiological test was also done. P.W.11 is another witness who was grazing cattle. He supported the prosecution version, as it is, without any contradiction. P.W.12 is tendered witness. P.W.13 is the Doctor. He found only one injury on the head of the injured which was a swelling. He deposed that the patient was unconscious and X-ray reports suggest that there is no sign of fracture. The patient was admitted to the hospital and thereafter, referred to R.I.M.S, Ranchi for better treatment. In his suggestion he deposed that the said injury can be possible if the person fall from a tree. It is pertinent to mention that the Investigating Officer was not examined in this case.
13. Thus, from scrutinizing the evidence, I find that the eye witness of the occurrence and the informant have stated that P.W.8 was grazing his buffalo. His buffalo went and ate the grass which was cut by the brother of this appellant and a verbal altercation took place between them then suddenly this appellant came from behind and struck P.W.8 on his head, shoulder and on his body. Thus, as per the depositions three injuries were inflicted on the body of the P.W.8. This deposition does not tally with the medical report because as per the doctor's statement there was only one injury, on the head, 7 which is a swelling. Further as per the medical report there was no sign of fracture of bone. Thus, analyzing the evidence it appears that there was no dispute that assault was given by this appellant which has been consistently supported by all the witnesses. Now, the dispute is that as to how many injuries were inflicted by this appellant. The witnesses says three. The injury report and the doctor opines that there is only one injury i.e. swelling on the head without their being any fracture. The victim was treated in Ranchi, but there is no document to prove the said fact, no medical report of the hospital at Ranchi has been place on record nor the doctor who treated the appellant in Ranchi was examined. The injured was unconscious who gained consciousness at hospital in Ranchi but it is not clear about the period of his unconsciousness. Thus from the evidence, I find that the prosecution has been able to prove the fact that at least one injury was inflicted on the head of the injured. Admittedly, there was no fracture as opined by the doctor.
14. Section 324 of the I.P.C. provides punishment for voluntarily causing hurt by dangerous weapons. The said section provides that, if a person, except in the case provided for by Section 334, voluntarily caused hurt by means of any instrument which is used as weapon of offence, which is likely to cause death then he may be convicted for the said offence. In this case, I find that stick was used to assault the informant. This case does not fall within the exception of under Section 324 of the I.P.C. as this appellant was not under grave and certain provocation. It was the brother of the appellant with whom the 8 altercation has taken place and this appellant was no where in the picture. He came from behind and struck the injured on his head. Thus, I find that the prosecution has been able to prove case under Section 324 of the I.P.C. and not under Section 307 of the I.P.C. I find in this case that the prosecution could not able to prove the case under Section 307 of the Indian Penal Code as there was no intention on the part of the appellant to commit murder of P.W.8, as none of the witnesses says about such intention. Only one blow was given. There was no repeated blows which is proved by the medical evidence. Thus, this case cannot come under Section 307 of the I.P.C. rather a case under Section 324 of the I.P.C. is made out.
15. As the prosecution has failed to prove its case, the conviction of the appellant under Section 307 of the I.P.C. is set aside and the appellant is convicted under Section 324 of the I.P.C.
16. So far as the sentence is concerned, since the appellant is convicted under Section 324 of the I.P.C. and the maximum sentence prescribed by the statute is three years of imprisonment, I impose a sentence of one year. Since, the appellant has already served more than one year in custody during the period of his trial, he need not be taken in custody if not wanted in any other case. Thus, with the aforesaid modification in the judgment and sentence this appeal is partly allowed.
(Ananda Sen, J.) Jharkhand High Court, Ranchi The 15th June, 2017 NAFR/Amar/cp.3