Jharkhand High Court
Bharat Choudhary vs The State Of Jharkhand ........ ... on 29 April, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 760 of 2015
(Against the judgment of conviction dated 28th August 2015 and the order of
sentence dated 2nd September 2015 passed by the 2nd Additional Sessions Judge,
FTC Bermo at Tenughat in Sessions Case No.318 of 2006)
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1.Bharat Choudhary, son of late Ram Shankar Choudhary
2.Lalan Choudhary, son of late Ram Equbal Choudhary Both residents of Anarpati School Phusro, PO Phusro, PS Bermo, District Bokaro ......... Appellants Versus The State of Jharkhand ........ Opposite Party CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellants : Mr. A. K.Sahani, Advocate Mr. Ajit Kumar, Advocate For the State : Mrs. Vandana Bharti, APP Dated: 29th April, 2024 Per, Shree Chandrashekhar, A.C.J. Bharat Choudhary and Lalan Choudhary are aggrieved by the judgment of conviction dated 28th August 2015 and order of sentence dated 2nd September 2015 passed in Sessions Case No. 318 of 2006.
2. The convicts were put on trial on the charge under sections 341 and 307 read with section 34 of the Indian Penal Code. They have been convicted and sentenced to RI for 10 years with fine of Rs. 5,000/- each under section 307 read with section 34 of the Indian Penal Code with default stipulation to undergo RI for 3 months; no separate sentence under section 341 of the Indian Penal Code was passed against them.
3. Bermo PS Case No. 31 of 2006 was lodged on the basis of the fardbeyan of Parmeshwar Singh recorded around 9:45 PM on 25th February 2006 at Referral Hospital, Bermo. In his statement given to S.I B.N. Pandey of Bermo PS, the informant stated that around 8:30 PM in the evening when he was engaged in gossiping with his friend Sanjeet Singh near Hanuman Temple, Bharat Choudhary, Sanjay Choudhary, Lalan Choudhary, Amar Singh, Arun Singh, Sudhir Jaiswal and Idrish Mian with two unknown miscreants surrounded them and started murderous assaults upon them. According to the informant, Bharat Choudhary was holding Bhujali, Sanjay Choudhary had Bhala in his hand, Lalan Choudhary was holding lathi and Amar Singh and Arun Singh both were carrying pistols. The informant made allegations against Sudhir Jaiswal and Idrish Mian also but they were not sent up for trial.
4. After the investigation, a chargesheet was laid against Lalan Choudhary and Bharat Choudhary and in support of its case the prosecution tendered nine witnesses in the trial. PW1 Gulam Rasool Ansari, PW5 Sanjeet Singh, PW6 Babloo Mandal, PW7 Gautam Kumar Rai and PW8 Parmeshwar Singh are the eye-witnesses; amongst them PW5 and PW8 are the injured witnesses. The trial Judge referred to their evidence and recorded a finding that they are reliable and trustworthy witnesses. The trial Judge further recorded that the prosecution story of murderous assaults upon Sanjeet Singh, Parmeshwar Singh and Sunita Singh was amply corroborated by the medical evidence.
5. The trial Judge in Sessions Case No. 318 of 2006 held as under:
"20. I have considered submissions advanced by the both sides and further have gone through oral evidence of witnesses. It has come in the evidence of victim- injured duo examined as PW5 and PW8 that they sustained injuries voluntarily opened by accused persons. About the manner of occurrence and the weapons used in assaulting them, they have been corroborated by the evidence of PWI and PW6 who claimed to had witnessed the entire episode of occurrence and the manner in opening the assault by individual accused coupled with weapon used by them. The PW8 Parmeshwar Singh, who is author of fardbeyan and which is foundation of prompt FIR against trial facing and others, in his evidence, has also been corroborated by the fardbeyan, recorded at Referal Hospital Bermo by ASI of P.S concerned. As per story, the police arrived at the hospital where injured Parmeshwar Singh submitted his fardbeyan, recorded at around 21.45 hrs on 25.02.2006 by ASI of the police Mr. B. N. Pandey of concerned police station. The occurrence is said to had taken place at about 8.30.pm evening. The injured duo PW5 & PW8 were taken to the hospital where the police contacted and recorded fardbayan submitted by PW8. According to PW5 he also was treated in the said hospital. This PW5 on oath has proved his signature upon fardbeyan as Exhibit 1 claimed to have witnessed the fardbeyan submitted by PW8.
There appears therefore prompt F.I.R. registered against the accused persons and others. The informant in his evidence categorically has narrated against both the accused as, how and by which weapon they opened assault resulting which he sustained injuries on his vital 2 CRIMINAL APPEAL (DB) NO. 760 OF 2015 part of the body. His evidence is that accused Bharat Choudhary by means of Bhujali giving 2-3 attack on the head. According to him when he fell down, other accused by means of their respective weapons also assaulted him. Though the informant PW8 made his ignorance as to by means of what weapon co-accused Lalan Chaudhary had assaulted him. But this fact alone does not give concession to accused Lalan Choudhary. The informant after sustaining multiple injuries opened by Bharat Choudhary, if fell down, then non disclosure of weapon used by accused Lallan Choudhary does not matter. Moreover, it is not the case of accused Lalan Chaoudhary that either he was not present at the spot or at the relevant time of occurrence he was holding no weapon at all.
The evidence of PW9 Dr. Ramanand Jha who had examined injured Sunita Devi (not examined) proved her injury report as Exhibit P2, on perusal indicates that she sustained injuries upon her left side of eye, sharp cutting injuries upon her forehead, sharp cutting injury upon her chin and sharp cut right side of face. The sizes of her injuries as is mentioned in the report (exhibit P2) suggest itself as to how much extent she was assaulted by the accused persons and what weapons they used in assaulting her.
Admittedly Dr Narendra Bhadoria who examined remaining injured PW5 and PW8, died during course of trial. The injuries reports brought on record as Exhibit P3 and Ex P4 concerning PW8 and PW5 respective and that has been proved by PW 9 Dr Ramanad Jha of the said hospital, on close perusal suggest that PW8 Parmeshwar Singh sustained injury in a size of 2 1½" x 1/8" on skull deep on right side of forehead near hairline. The injuries were caused by sharp cutting instrument. Therefore, the evidence of witnesses that Bhujali and knife were used in inflicting has also been established well. The medical- report (Exhibit P4) suggests that PW5 Sanjit Singh sustained multiple injuries inflicted by means of sharp edge object.
21. Accused persons, as has come in the evidence of almost all the witnesses duly armed with lethal weapons along with their associates who also were holding deadly weapons, in a planned manner finding both injured PW5 and PW8 near Hanuman temple approached at the place of occurrence, assaulted duo mercilessly giving assault upon their vital organ of the body. They even not spared the lady who came to rescue injured duo. Sunita Devi, due to the reasons best known to the prosecution has not been examined. However evidence of PW5, PW8 and others examined on behalf of the prosecution in their evidence have confirmed that Sunita also sustained injuries inflicted during course of occurrence. PW9 Dr. Ramanand Jha who examined her on 25.2.2006 at around 9.15 pm found her sustained with the multiple injuries opened upon her forehead, chin, eye and face etc. In this case the evidence of PW8 Parmeshwar Singh was recorded in two parts. Firstly he was examined on 09. 06. 2009 and on that day his further cross examination on submission made by learned counsel for the accused persons, was deferred for the next day. But this witness appeared after a considerable delay of about six years, only 06.01.2014 and in his remaining cross examination in my opinion due to some vested interests he had attempted to brushed aside the evidence which has come in his examination-in-chief. According to his further cross examination recorded dated 6.1.2014 he has compromised the dispute with the accused persons. Under the circumstances, I am of the view that in fact the compromise was one of the reason behind non examination of injured Sunita Devi. Thus in my opinion non examination of one of the injured Sunita Devi will not stand in the way of holding the accused persons responsible for the occurrence of assault.
3 CRIMINAL APPEAL (DB) NO. 760 OF 2015
22. So far as the contention advanced in favour of accused relating to non examination of its I.O., who during investigation had recorded oral statement of witnesses, is concerned, I in this context looking to the evidence of material witnesses examined on behalf of the prosecution, find that none of them during cross examination have been confronted from their previous statement recorded by the I.O. The informant PW8 who is said to have compromised the matter, also in his examination-in-chief which took place prior to six years back of his further cross-examination, has supported the prosecution story in its totality. His attention was not drawn towards any inconsistencies to his previous statement recorded during course of investigation. As such non examination of the I.O. will no help the defence and they cannot be permitted to take advantage of his non examination. So far as the effect of compromise, as has come in cross examination of informant cum injured PW8 Parmeshwar Singh, is concerned, this plea, considering his the evidence coming out in his examination-in-chief will no help at all, since as the offence under Section 307 of the IPC is not compoundable. Therefore the effect of compromise, therefore in light of cogent and consistent and reliable evidence of injured persons and others examined on behalf of the prosecution, as has been discussed above, becomes ineffective and is not tenable in the eyes of law.
On the basis of above discussion, I am of considered opinion that the prosecution has been able to prove the charges framed u/s 341 and 307 read with Section 34 of the I.P.C. against accused persons. In the ultimate analysis, I find both accused persons Bharat Choudhary and Lalan Choudhary guilty to the offence punishable under Section 341 and 307 of IPC read with Section 34 of I.P.C. and convict them thereunder. Their bail stand canceled and they are taken into judicial custody."
6. During the trial, there was a compromise with PW8 who admitted in his cross-examination that he has signed the compromise petition voluntarily. However, the trial Judge observing that the offence under section 307 of the Indian Penal Code is not compoundable proceeded to examine the prosecution case on merits. Reiterating a similar contention, Mr. Ajit Kumar, the learned counsel for the appellants would submit that compromise between the parties is a relevant consideration in a criminal trial and about two decades after the crime was registered against them, the appellants deserve leniency in the award of punishment upon them.
7. The prosecution case is founded on the testimony of the eye- witnesses who are the victims of the crime. PW5 suffered three incised wounds; on his forehead, chin and face, besides bruises and abrasions. Sunita Singh who is the wife of the brother of the informant suffered three sharp cut injuries over her forehead, chin and face. As PW9, Dr. Ramanand Jha who examined her on 25th February 2006 at Referral Hospital, Dhori found bleeding injury with rupture of sclera around her left eye and 4 CRIMINAL APPEAL (DB) NO. 760 OF 2015 swelling on left arm. According to PW9, the injuries were grievous in nature. PW8 also suffered deep incised wound over his skull with cut margin of the size of 2½'' x 1/8'' and bruise on anterior surface of thigh.
8. On the basis of the opinion of the doctor who deposed in the Court that majority of the injuries found on the person of Sunita Singh, Parmeshwar Singh and Sanjeet Singh were simple in nature, a plea has been raised that the appellants had no requisite intention or knowledge to commit attempt to murder. Under section 45 of the Evidence Act, the opinion of the expert is only a relevant fact. In "Queen v. Ahmed Ally"
(1869) 11 Sutherland W R Cr. 25, Norman, J observed that evidence of a medical man or other skilled witnesses, however, imminent, is ordinarily a matter of mere opinion. In "State of H.P. v. Jai Lal and Others" reported in (1999) 7 SCC 280, the Hon'ble Supreme Court held as under :
"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
9. This is too well settled a law that the opinion of a doctor cannot form a basis to ignore the oral evidence tendered during the trial. There were as many as three injuries to Sunita Singh, one to Parmeshwar Singh and four to Sanjeet Singh which are grievous in nature. These witnesses suffered such injuries around their vital parts of the body. Section 34 of the Indian Penal Code which incorporates vicarious liability enjoins upon the prosecution to establish that the criminal act was done in furtherance of the common intention. The provisions under section 34 of the Indian Penal Code requires sharing of common intention as it is not necessary that each one of the persons must have done something which shall independently amount to attempt to murder. The intention of a person is gathered from the nature of injury, the weapons held by him and other attending circumstances. In "C. Kunhammad v. Emperor" AIR 1924 Mad.
5 CRIMINAL APPEAL (DB) NO. 760 OF 2015 229 it was observed that the meaning of section 34 is that if two or more persons have individually done a thing jointly the position is the same as if each of them had done it individually. "C. Kunhammad" was approved by the Privy Council in "Barendra Kumar Ghosh v. King Emperor" AIR 1925 PC 1. It is worthwhile to note the appellant's argument in "Barendra Kumar Ghosh" which runs like this:
"In section 34 a criminal act in so far as murder is concerned means an act which takes life criminally within Section 302 because the section concludes by saying "is liable for that act in the same manner as if the act were done by himself alone". It was argued that where each of several persons does something criminal, all acting in furtherance of common intention, each is liable for punishment for what has been done, as if he had done it by himself."
10. Lord Sumner captured the appellant's argument by an illustration, thus;
"If three assailants simultaneously fire at their victim and lodge three bullets in his brain, all may be murderers, but, if one bullet only grazes his ear, one of them is not a murderer and, each being entitled to the benefit of the doubt, all must be acquitted of murder, unless the evidence inclines in favour of the marksmanship of two or of one."
11. Speaking for the Board, Lord Sumner has written: "Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait".
12. The grievous injuries caused to the prosecution witnesses on vital parts of the body of the prosecution witnesses shall establish such intention or knowledge which in circumstances of the case would have caused death and the accused would have been guilty for murder. As to compromise between the parties, we intend to record that compromise with one accused is not sufficient to reduce the punishment awarded to the appellants; there are three victims of the crime. The trial Court's decision to convict the appellants is well founded and based on the materials on record.
13. On the question of quantum of punishment, it is widely accepted that the punishment should be commensurate with the gravity of the offence but no guidelines is provided in the Code of Criminal Procedure for awarding of the punishment. The judicial pronouncements 6 CRIMINAL APPEAL (DB) NO. 760 OF 2015 however lean towards balancing the need for deterrence and avoiding too harsh punishments, having regard to the aggravating and mitigating circumstances in each case. In "Suryakant Baburao v. State of Maharashtra" (2020) 17 SCC 518 the Hon'ble Supreme Court held that the award of punishment must be commensurate with gravity of the crime. The offence under section 307 of the Indian Penal Code provides maximum punishment of imprisonment for life or alternatively punishment of either description for a term which may extend to 10 years.
14. In our opinion, punishment awarded to the appellants does not warrant any interference by this Court.
15. Criminal Appeal (DB) No. 760 of 2015 is dismissed.
16. Let a copy of the order be transmitted to the Court concerned forthwith.
(Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Tanuj 7 CRIMINAL APPEAL (DB) NO. 760 OF 2015