Jharkhand High Court
Tarachand Tigga @ Tarachand vs The State Of Jharkhand on 21 November, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No.326 of 2007
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 326 of 2007
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(Against the judgment of conviction dated 26.02.2007 and order of sentence dated 27.02.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 362 of 2001 in connection with Sadar (Muffasil) P.S. Case No. 74 of 1998, corresponding to G.R. Case No. 319 of 1998 & T.R. No. 282 of 2001, Hazaribag, Jharkhand.)
1. Tarachand Tigga @ Tarachand
2. Sabbir Ansari @ Sabbir Mian ... ... 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. Mohit Prakash, Advocate For the Respondent : Mr. Tarun Kumar, Addl.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR Judgment: Dated: 21st November, 2022
1. This appeal is directed against the judgment of conviction dated 26.02.2007 and order of sentence dated 27.02.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 362 of 2001 in connection with Sadar (Muffasil) P.S. Case No. 74 of 1998, corresponding to G.R. No. 319 of 1998 & T.R. No. 282 of 2001, Hazaribag, Jharkhand whereby and where under the learned trial court found guilty and convicted the accused Tarachand @ Tarachnad Tigga under sections 448, 341, 307 of IPC and Sabbir Mian @ Sabbir Ali @ Ansari u/s 448, 341, 307/34 of IPC and sentenced both the appellants to undergo SI for 01 year each u/s 448 of IPC and S.I. for 01 month each u/s 341 of IPC. Tarachand @ Tarachand Tigga is further sentenced to undergo R.I. for 5 years and a fine of Rs. 5,000/- u/s 307 of IPC and in default of payment of fine a separate sentence to undergo R.I. for 06 months and convict Sabbir Mian @ Sabbir Ali @ Ansari is further sentenced to undergo R.I. for 3 years 2 Cr. Appeal (SJ) No.326 of 2007 and a fine of Rs. 3,000/- under section 307/34 of IPC and in default of payment of fine a separate sentence to undergo R.I. for 04 months was awarded. All the sentences were directed to run concurrently and the period of detention if any undergone by the convicts will be set off against the sentences imposed.
2. The prosecution story arose in the wake of written report dated 16.02.1998 addressed to the Officer In-Charge, Sadar P.S. Hazaribag, by the informant P.W. 3 Shila Topno wherein it was alleged that: -
"On 15.2.1998 at about 8.15 P.M. in the night, accused Tara Chand and Sabbir forcibly entered into her house and made pressure to increase the number of some examinee, at that time, she was going to make a call from the telephone booth. The accused persons also started going with her and repeated their demand to increase the number. When she made protest, then accused Tarachand, all of a sudden, made an attack upon her, pressed her neck and pulled her on the road and started pressing her neck and when she tried to raise hulla, then he caught hold her mouth and Sabbir was watching there and somehow she escaped from there and started running away towards her house and she entered into her house, then both the accused persons tried to break the door of the grill and threatened that if she would report to the police, then she would not remain alive and they would kill her along with her family members and they also threatened to blow the house by a Bomb and Dynamites. The informant alleged that due to the attack made by the accused, she received severe pain on her throat, head and other parts of the body.
On the basis of the written report of the informant, Sadar Muffasil) P.S. Case no. 74/98, corresponding to G.R. Case no. 319/98 was instituted under sections 448,323,341,354 and 307 I.P.C. After investigation, police submitted charge sheet on 30.8.1998. Learned C.J.M. by order dated 7.9.1998 took cognizance against the accused 3 Cr. Appeal (SJ) No.326 of 2007 persons and on 16.6.2001 this case was committed to the court of Sessions.
After commitment, charges against the accused persons were framed by Sessions Judge, Hazaribag on 26.7.2004 under sections 448, 341 and 307 of I.P.C. The contents of the charges were read over and explained to the accused persons in Hindi, to which they pleaded not guilty and claimed to be tried.
3. The learned trial court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.
4. Heard Mr. Mohit Prakash, the learned counsel for the appellants and Mr. Tarun Kumar, the learned Addl. P.P. for the State.
Arguments advanced on behalf of the appellants
5. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellants submitted that the entire allegations as alleged in the FIR get falsified by the testimonies of the victim informant P.W. 3 herself when she stated in her deposition in the cross examination that at the time of alleged occurrence she was neither evaluator of the examination nor she had been examining the copies at the relevant time and therefore no question of enhancement of the marks to be evaluated by her as requested and alleged to have been forced by the appellants and thereby assaulting her arose. Further it has been pointed out that the informant P.W-3 never disclosed in the FIR nor in her examination during the course of the trial about the details of Roll no. of candidate and the name of examinee for whom the appellants were making pressure upon her to increase of the marks, therefore the reasons of alleged incident has not been supported in her version in the deposition as recorded at the time of the trial. Further it has been pointed out that no independent witness has been examined and 4 Cr. Appeal (SJ) No.326 of 2007 another witness who has been examined on behalf of the prosecution to support the case of the prosecution is younger sister of informant i.e. P.W. 1 Rup Kumari Topno who deposed herself in the cross examination that she was not the eye witness of the occurrence although she has stated in her examination in chief for these two appellants who had entered into her house. Further the learned counsel appearing for the appellants submitted that the learned trial court has committed error in appreciating the evidences and ignoring the fact that the informant had deposed that two persons had come and accompanied her police station but none of them has been examined by the prosecution and therefore it has been submitted that the learned court below must have presumed that these witnesses have been withheld because their evidences might not be favorable for the informant and their non-examination caused serious prejudice to the defence of the appellant.
Learned counsel appearing on behalf of the appellants further submitted that para 6 of the cross examination of the informant has totally falsified the case of the prosecution due to dual nature of her statements where it has been pointed out that at one place this informant P.W. 3 stated that she informed to the police verbally and at another place she had stated that she has gone to the police station in the morning but in the evening she has given written statement and she has also stated that she has given a complaint to the police station, she further state that two persons had accompanied with her but none of them has been examined and thus entire manner and mode of instituting the case becomes doubtful because of her deviating versions given in para 6 of the cross examination and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside and no offence u/s 307 of IPC is proved because of the clear cut deposition of the doctor who has been examined as P.W. 2 who deposed that there were only one 5 Cr. Appeal (SJ) No.326 of 2007 injury i.e. Injury no. i- abrasion and another was swelling and body ache and therefore neither intention nor knowledge was inferred in order to constitute the offence u/s 307 of IPC and utmost it is the case of 323 of IPC and as such the learned trial court has committed gross error in convicting the appellants u/s 307 of IPC along with the other sections under 448 & 341 of IPC.
Arguments advanced on behalf of the State
6. On the other hand, the learned Addl. P.P. appearing for the State opposed the contentions raised on behalf of the appellants and stated that the learned trial court has rightly appreciated the statement of the victim P.W. 3 vis-a-vis Medical examination report Ext. 1 where the doctor P.W.2 has found there was swelling in the neck and also abrasion (injury no. 1) is on the neck and, therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit.
It has further been pointed out that both the witnesses P.W. 1 and P.W.3 were present in the house and the alleged incident had taken place at both inside and outside of the house as stated in the FIR and both the witnesses supported the case of the prosecution and there was no occasion for anyone else to corroborate the allegation as leveled in the FIR and both the witnesses P.W. 1 and P.W. 3 have supported the case of the prosecution. The I.O. has also been examined who categorically stated that the two witnesses P.W. 1 and P.W. 3 were examined during the course of the trial and they have supported the case of the prosecution and, therefore, this appeal is fit to be dismissed being devoid of merit.
Appraisal and Findings
7. Having heard the parties, perused the record of this case including the Lower Court Records.
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8. In order to substantiate its case, the prosecution has been able to examine altogether 04 witnesses which are as under:
1. P.W.1- Rup Kumari Topno (Sister of the informant)
2. P.W.2- Dr. A.K. Sinha, (The Doctor)
3. P.W.3- Shila Topno (The informant)
4. P.W.4- Kaushalya Nand Choudhary (I.O.) Apart from the above oral evidences, the Prosecution has been able to prove some documentary evidences which are as follows-
1. Ext.1- carbon copy of injury report of informant Shila Topno, and
2. Ext. 2- is the written report by the informant of the FIR.
9. P.W. 1 Rup Kumari Topno examined on behalf of the prosecution was the younger sister of the informant and she has supported the case of the prosecution to the extent that on the date of occurrence both the appellants namely Tarachand @ Tarachand Tigga and Sabbir Ansari @ Sabbir Mian had entered into their house and thereafter in the room of her sister P.W. 3 and Sabbir Ansari @ Sabbir Mian asked her to increase the number of one examinee but her sister refused to do so, then they started pressurizing upon her sister and when her sister went outside the house to call the police then both the accused persons had also come out with her sister and she further stated that her sister P.W. 3 had told that the appellant no. 2 had pushed her on the ground and pressed her neck and Sabbir Ansari was watching and guarding the incident. She had also stated that she had seen that her sister was coming and both the accused were chasing her and when her sister P.W.3 after entering the house closed the door then the accused persons had tried to break the door. In the cross examination she has stated that she has not seen the occurrence that the accused persons were pressing the neck of her sister. From the deposition of this witnesses it is found that the appellants had 7 Cr. Appeal (SJ) No.326 of 2007 entered into the house and after chasing the informant they (accused/appellants) assaulted her.
10. P.W.2- Dr. A.K. Sinha, is the Doctor. He stated that on 16.02.1998 he had examined P.W. 3 Shila Topno and found the following injury on the body of the P.W.3.
(i) abrasion ¼" X ¼"over right side of neck,
(ii) swelling ½"x ½" over right side of the neck below the injury no. 1
(iii) complain of body ache.
He further stated that all the injuries are simple in nature caused by hard and blunt substance.
Thus the doctor had supported the case of the prosecution to the extent that the accused appellants had assaulted her (the victim P.W.
3) by pressing her neck. He has proved the medical examination report which is marked as Ext. 1. In the cross-examination he had stated that injuries may be caused due to fall on the ground.
11. P.W.3- Shila Topno is the victim and the informant and her version has been fully supported by the P.W. 1. She stated in her deposition that the both the appellants had forcibly entered into her house and they started making pressure upon her to increase number of an examinee and when she went outside the house to make a call, both the appellants had started chasing her, the appellant no. 1 Tarachand Tigga pushed her on the ground and pressed her neck and the appellant no. 2 Sabbir Ansari was guarding the incident on the road. She further deposed that she started to run away towards her house but both the appellants started chasing her upon which she became very scared and after entering into the house she closed the doors and the accused persons by pushing the door trying to break it and threatening her to face dire consequence if the matter is reported to the police and in the cross examination nothing has come out from the mouth of this witness to disbelieve the version of the prosecution to the extent that the both the appellants had entered 8 Cr. Appeal (SJ) No.326 of 2007 into the house and they have chased her and assaulted P.W. 3 by pressing her neck, which is fully corroborated by the medical examination report of P.W. 3 also, where the doctor found abrasion and swelling on the neck and body ache. Although the doctor has found that the injury was caused upon the body of the P.W. 3 was simple in nature and therefore under the circumstances of the case it is found force in the contentions raised on behalf of the appellants that neither any intention nor any knowledge has been proved in order to commit the offence of attempt to the murder of P.W. 3.
This Court after evaluating the evidences in the foregoing paragraphs found that the injury no. (i) is abraison measuring ¼" x ¼" over right side of neck which is simple in nature, further there is swelling of ½" x ½ " over right side of the neck, thus these injuries are not sufficient at all to substantiate any kind of the ingredients for the offence of causing attempt to murder or having knowledge to cause murder of P.W.3 by the appellants in order to infer the offence of attempt to murder and therefore the learned trial court has committed gross error in evaluating the evidences adduced on behalf of the prosecution particularly P.W.3 and the medical examination report which has been proved by the doctor P.W. 2 as Ext. 1.
12. Further it is also found that both the appellants had have an opportunity to cause serious and grave injuries upon the victim P.W.3 as they were standing outside the house of P.W.3 for a long period of time and they were also chasing her as per the prosecution case but no such injury was inflicted upon the victim P.W.3 in order to infer the offence u/s 307 of IPC and therefore, this Court finds that the offence punishable u/s 307 of IPC passed against the appellants is not proved by the prosecution and as such the learned trial court has erred in holding the guilt of the accused-appellant for the offence punishable under section 307 of IPC.
13. P.W.4 - Kaushalya Nand Choudhary is the I.O. of the case, 9 Cr. Appeal (SJ) No.326 of 2007 who deposed that he had inspected the place of occurrence and recorded the statement of the informant and he has examined only two witnesses P.W.1 and P.W. 2 although this witness has not completed the entire investigation of this case because of his transfer and the case was handed over to another police official who submitted the charge sheet.
14. Recapitulating the evidences evaluated in the foregoing paragraphs it is well founded that that both the appellants had forcibly entered into P.W.3's (victim) house and they started making pressure upon her to increase number of an examinee and when she went outside the house to make a call, both the appellants had started chasing her. The appellant no. 1 Tarachand Tigga pushed her on the ground and pressed her neck and the appellant no. 2 Sabbir Ansari was guarding the incident on the road. It is also found proved that when she started to run away towards her house both the appellants chased her upon which she became very scared and after entering into the house she closed the doors and the accused persons by pushing the door tried to break it and threatened her to face dire consequences if the matter is reported to the police. They assaulted P.W. 3 by pressing her neck which is fully corroborated by the medical examination report of P.W. 3 where the doctor found abrasion and swelling on the neck and body ache. Although the doctor has found that the injury caused upon the body of the P.W. 3 was simple in nature.
It is well settled proposition of law that in order to sustain an offence under section 307 of the IPC the presence of intention or knowledge must be such as is necessary to constitute murder. Without this there can be no offence under section 307 of the IPC. Unless the prosecution proves the ingredients of section 300 of IPC there can be no conviction under section 307 of IPC. In the present case the acts of the appellant is seemingly not sufficient to 10 Cr. Appeal (SJ) No.326 of 2007 substantiate their intention or knowledge to commit murder as evident from the relevant facts including the manner and mode of causing injuries irrespective of the result. The testimonies of the victim as examined on behalf of the prosecution as P.W.-3 are full of contradictions. Further the opinion of doctor about the nature of injuries inflicted upon victim is simple, and thus suggesting the absence of intention or knowledge to cause death under the circumstances as indicated in section 307 of IPC. Further it is found that the nature of injuries are not fatal to cause death although the accused-appellants had ample opportunities to inflict injuries but intention or/and knowledge could not be inferred in view of the categorical testimonies of P.W.1, P.W.2 and P.W.3 who did not support the intention and knowledge of the accused appellant in all probabilities to cause death as emanating from their testimonies.
15. Having taken into consideration the aforesaid evidences adduced on behalf of the prosecution this Court comes to the conclusion that the learned trial court has rightly convicted the appellant for the offence punishable under sections 341 and 448 of IPC for wrongful restrain and house-trespass but so far as the offence u/s 307 of IPC is concerned no substantive evidence is found but there is evidence of offence punishable u/s 323 of IPC.
16. Consequently the impugned judgment of conviction dated 26.02.2007 and order of sentence dated 27.02.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 362 of 2001 in connection with Sadar (Muffasil) P.S. Case No. 74 of 1998, corresponding to G.R. No. 319 of 1998 & T.R. No. 282 of 2001, Hazaribag, against the appellant no. 1 Tarachand Tigga @ Tarachand under section 307 of IPC and against the appellant no. 2 Sabbir Ansari @ Sabbir Mian under section 307/34 of IPC is set aside and the conviction of the appellants is altered for the offence punishable u/s 341, 448 , 323 r/w 34 of IPC .
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17. This Court holds the conviction accordingly against both the appellants for the offence punishable u/s 341, 448 and 323 read with section 34 of IPC.
18. So far as the sentence is concerned it is found that on 14.08.2006 at the time of examination of accused under section 313 of Cr.P.C. the appellant no 1 was aged about 30 years and appellant no. 2 was aged about 32 years and over a period of time they have reached at their middle age about 46 and 48 years respectively and there is nothing on record to show about their criminal history and further it has also been pointed out that both the appellants were suffering from misery and hardship for a long period of time since last 24 years as the incident took place in the year 1998 and therefore in view of these mitigating factors, a lenient view is taken in awarding sentence.
19. Having taken into consideration all the aforesaid mitigating factors, this Court sets aside order of sentence dated 27.02.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 362 of 2001 in connection with Sadar (Muffasil) P.S. Case No. 74 of 1998, corresponding to G.R. Case No. 319 of 1998 & T.R. No. 282 of 2001, Hazaribag, Jharkhand against the appellants and this Court finds just and fair to sentence them for the term of the period already undergone by them instead of awarding further sentence of imprisonment and the purpose of justice would be served if both the appellants are further sentenced to fine by way of compensation.
20. Consequently, the appellants are sentenced to the imprisonment for a term of the period already undergone by them and they are further sentenced to pay a fine by way of compensation to a sum of Rs. 5,000/- (Rupees Five Thousands only) collectively under all the counts/heads of the offences namely under sections 341, 448 , 323 r/w 34 of IPC in order to give it to the informant P.W. 3- Shila Topno, d/o Late Mansukh Toppo, Nutan Nagar, P.S. Mufassil (Sadar), Hazaribag.
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21. Since the appellants are on bail, they are given four months' time from the date of this judgment to deposit the fine amount by way of compensation to a sum of Rs. 5,000/- (Rupees Five Thousands only) collectively as awarded to them to be given to P.W. 3- Shila Topno.
22. In case of default of payment of fine amount of Rs. 5,000/- (Rupees Five Thousands only) by way compensation in order to give it to the victim P.W. 3 Shila Topno so awarded by this Court within the stipulated period of time, the appellants will undergo rigorous imprisonment for a period of 1 (one) year. The learned trial court is directed to ensure that if the said fine amount is deposited within the stipulated period of time they will be discharged from the liabilities of bail bonds and if the same is not deposited by the appellants within the stipulated period of time the appellants will serve the sentence in case of default of payment of fine so awarded, and the learned trial court, by taking all necessary measures as per the provisions of law, shall ensure that appellants serve the sentence of imprisonment in case of default of payment of fine.
23. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment they deposit the fine amount, they (the appellants) shall be released forthwith on deposit of the said fine amount and they shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notice shall be sent to the informant P.W. 3 and on her appearance, the said fine amount, if so deposited by the appellants, shall be disbursed to her accordingly. In case, if the P.W. 3 Shila Topno is not traceable or not available or not found at the given address or does not present before the Court after the notice, the same shall be disbursed either to the close or near relatives or kith and kin of the said victim, as the concerned learned trial court may 13 Cr. Appeal (SJ) No.326 of 2007 deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Hazaribag, if required.
24. Accordingly, the appeal is partly allowed as above.
25. Let a copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in letter and spirit.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 21.11.2022/NAFR MM/-