Jharkhand High Court
Labeswar Marandi @ Lageswar Marandi vs The State Of Jharkhand on 28 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1736 of 2004
(Against the Judgment of conviction dated 28 th September, 2004, and order of
sentence dated 29th September, 2004, passed by the learned Additional
Sessions Judge-IV (F.T.C.) Jamtara, in Sessions Case No.12 of 2002).
1.Labeswar Marandi @ Lageswar Marandi, Son of Late Kuar
Marandi.
2.Sargeon Marandi, Son of Late Kuar Marandi.
3.Musai Marandi, Son of Late Sonalan Marandi
4.Gena @ Gaina Marandi, Son of Bilan Marandi
5.Gurdha Marandi, Son of Jitu Marandi.
All residents of Village- Lakhanpur, Tola- Dumarbero, P.S.- Jamtara,
District- Jamtara. .... Appellants
Versus
The State of Jharkhand. ..... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellants : Mr. Kaushal Kishore Mishra, Advocate For the State : Mr. Suraj Mohan, Additional Public Prosecutor .....
By Court:- Heard, Mr. Kaushal Kishore Mishra, learned counsel appearing for the appellants and Mr. Suraj Mohan, learned Additional Public Prosecutor appearing for the State.
2. The instant Criminal appeal is directed against the Judgment of conviction dated 28th September, 2004, and order of sentence dated 29 th September, 2004, passed by the learned Additional Sessions Judge-IV (F.T.C.) Jamtara, in Sessions Case No.12 of 2002, whereby all the aforesaid five appellants have been convicted under Sections 307/149 and 341 I.P.C. and awarded rigorous imprisonment for eight years and a fine of Rs.1,000/- each for the offence committed and punishable under Sections 307/149 I.P.C. and rigorous imprisonment for one month for the offence committed and punishable under Section 341 I.P.C. Both the sentences are directed to run concurrently.
3. The prosecution case is based upon 'fardbeyan' of the informant, Parmay Marandi (P.W.2) recorded on 22.09.2001 at around 9.00 A.M., by Upendra Prasad Yadav, Sub Inspector of Police at Sadar Hospital, Jamtara, wherein the informant has alleged that yesterday i.e. on 21.09.2001 at about 6.30 p.m., while the informant was returning to his house, after working as Labour and as soon as, the informant reached near the house of Labeshwar Marandi, all of a sudden, Labeshwar Marandi, Gurdha Marandi, Sargeon Marandi, Musai Marandi and Gena @ Gaina Marandi have surrounded the informant and started abusing with filthy language. Accused, Labeshwar
-2- [Cr. Appeal (SJ) No.1736 of 2004] Marandi was armed with tangi and Sargeon Marandi and Musai Marandi were armed with lathi. Upon the order of Gena Marandi, Labeshwar Marandi, assaulted the informant on the right side of his head, causing bleeding injury due to which, the informant fell down and thereafter the other accused persons, namely, Musai Marandi assaulted the informant on his right elbow by means of lathi and Gurdha Marandi assaulted the informant on his back by lathi. The informant has alleged, that the occurrence took place, as the accused persons were demanding a part of his land, for which the informant was not ready. On the order of Gena Marandi, the informant was assaulted by the accused persons. The informant has further alleged, that the co-villagers, Viswapati Murmu, Loba Marandi and others came and they saved the informant from further assault. The informant has alleged, that the accused persons, after forming unlawful assembly, surrounded the informant and assaulted him by means of tangi and lathi, with an intention to kill him. The informant has given 'fardbeyan' in presence of Loba Marandi and also put his left thumb impression over the same.
4. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report bearing Jamtara P.S. Case No. 206 of 2001 dated 22.09.2001, corresponding to G.R. No.418 of 2001, under Sections 147 / 148/341/307/324/323 of the Indian Penal Code against all the five named accused persons.
5. After investigation, the Police submitted charge-sheet against all five accused persons vide Charge-sheet No.131 of 2001 dated 31.10.2001 under Sections 147 /148/149/341/ 323/ 324/307 of the Indian Penal Code. The cognizance of the offence has been taken vide order dated 03.11.2001 and the case has been committed to the Court of Sessions vide order dated 15.12.2001.
6. The charge has been framed against the accused/ appellants on 02.04.2002 under Sections 341, 149 and 307 I.P.C., to which the accused/appellants have pleaded their innocence and thus, they were put under trial.
7. The prosecution has examined, altogether five witnesses and also adduced documentary evidence to prove its case beyond all reasonable doubt.
Loba Marandi has been examined as P.W.1, Parmay Marandi, informant- cum-victim of the case, has been examined as P.W.2, Uttam Marandi has been examined as P.W.3, but has been declared hostile by the prosecution, Dr. M.A. Sattar, Medical officer, who examined the injured, Parmay Marandi (P.W.2), has been examined as P.W.4 and Upendra Prasad Yadav, Investigating officer of the case, has been examined as P.W.5.
-3- [Cr. Appeal (SJ) No.1736 of 2004] Injury report of Parmay Marandi (P.W.2) has been proved and marked as Exhibit-1, fardbeyan of the informant has been proved and marked as Exhibit-2 and the Formal First Information Report has been proved and marked as Exhibit-3.
8. After closure of the prosecution evidence, statement of the appellants have been recorded under Section 313 Cr.P.C. on 04.09.2004, to which they have pleaded their innocence and stated that they have falsely been implicated in this case and there is no evidence against them, as they have not committed any offence.
9. After hearing the learned counsel for the parties and on perusal of the records, the learned trial court has passed the impugned judgment of conviction and order of sentence against the accused/appellants.
Being aggrieved at, and dissatisfied with the, impugned judgment of conviction and order of sentence, the appellants have preferred the present Criminal Appeal before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence.
10. Heard, Mr. Kaushal Kishore Mishra, learned counsel appearing for the appellants.
Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.
Learned counsel for the appellants has further submitted that the conviction of the appellants under Sections 307 /149 I.P.C. cannot sustain in the eyes of law, as there is allegation that five persons forming unlawful assembly, have assaulted the informant (P.W.2- Parmay Marandi), but the Doctor has only found one sharp-cut injury on the head, three injuries on the right elbow and one injury on the back, but all the injuries were simple in nature. From perusal of the First Information Report, it appears that the accused persons fled away after assaulting him.
Learned counsel for the appellants has further submitted, that there is no mens rea on the part of the appellants to commit murder of the informant. Had it been so, there was no impediment for the appellants to achieve their goal.
Learned counsel for the appellants has further submitted that the appellant, Labeswar Marandi, has been alleged to have armed with tangi, has assaulted the informant on his head, but the Doctor (P.W.4) has categorically stated, during cross-examination, that such sharp-cut injury may be caused because of fall on sharp-edged substance.
-4- [Cr. Appeal (SJ) No.1736 of 2004] Learned counsel for the appellants has further submitted, that all the injuries, found on the person of the victim, are simple in nature and the allegations which have been levelled in the First Information Report is with respect to the land dispute between the parties, as both the parties are descendants of common ancestor.
Learned counsel for the appellants has further submitted, that witness Loba Marandi (P.W.1) is not an eye-witness to the occurrence, rather, he reached to the place of occurrence after assault took place. This witness is cousin of the informant (Parmay Marandi), who is an injured of the case and has been examined as P.W.2. Both the witnesses, Loba Marandi (P.W.1) and Parmay Marandi (P.W.2), have admitted, during cross-examination, that for the same occurrence, the accused persons have also filed a case against the present informant.
Learned counsel appearing for the appellants, in support of his submission, has put reliance in the case of Subramani and Ors. Vs. State of Tamil Nadu, as reported in (2002) 7 SCC 210, wherein the Hon'ble Supreme Court has held that "injuries were simple, held, does not relieve the prosecution of its obligation - On failure, court can draw inference that prosecution has not presented the true version of the occurrence."
Learned counsel for the appellants has further submitted that the appellants have remained in jail custody for about three months and in the facts and circumstances of the case, conviction of the appellants under Section 307/149 I.P.C. cannot sustain in the eyes of law.
11. Heard Mr. Suraj Mohan, learned Additional Public Prosecutor appearing for the State.
Learned counsel for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial Court upon the material available on record, as such, the learned trial court has rightly convicted the appellants and the same does not warrant any interference by this Hon'ble Court at this stage.
Learned counsel for the State has further submitted that the accused/appellant, Labeswar Marandi has assaulted the informant by means of tangi on the right side of head and the Doctor has found corresponding injury, which has been proved and marked as Exhibit-1.
Learned counsel for the State has further submitted, that the accused persons after forming unlawful assembly, as defined under Section 141 I.P.C., restrained the informant by surrounding him and after using abusive language, assaulted the informant by means of tangi and lathi, causing injuries and those
-5- [Cr. Appeal (SJ) No.1736 of 2004] corresponding injuries were also found by the Doctor and the injury report has been proved and marked as Exhibit-1.
Learned counsel for the State has further submitted that witness, Loba Marandi (P.W.1) being cousin of the informant, is an eye-witness to the occurrence, has witnessed the occurrence of assault, which was made by the accused persons against the informant. Upendra Prasad Yadav (P.W.5) is the Investigating Officer, who has investigated the case, has also supported the prosecution case. As such, the learned trial court has rightly convicted the appellants under Sections 307/149 and 341 I.P.C.
12. Heard, Mr. Kaushal Kishore Mishra, learned counsel appearing for the appellants and Mr. Suraj Mohan, learned Additional Public Prosecutor appearing for the Sate.
Perused the records, including the First Information Report, charge and the evidence of five prosecution witnesses, three exhibits and statement of accused/appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment. It appears that the parties are agnates and because of land dispute prevailing between the parties and dispute regarding fishing from the pond, the occurrence took place between the agnates. It is fact that these appellants have assaulted the informant by means of tangi and lathi, but the injuries which were found by the Doctor and the Injury Report which has been proved and marked as Exhibit-1, shows that all the injuries were simple in nature, even the injury which has been caused by means of tangi (axe) is 2½ "
x ½ " into bone deep, but that injury has been alleged against the accused, Labeswar Marandi.
13. This Court has perused the evidence of Loba Marandi (P.W.1), Parmay Marandi (P.W.2), informant of the case and Upendra Prasad Yadav (P.W.5), investigating officer of the case. These witnesses have admitted about the counter case filed by the accused persons for the same occurrence, but nowhere the defence has mentioned that they have also sustained injury nor the First Information Report of the counter case has been brought on record. The judgment relied upon by the learned counsel for the appellants i.e. Subramani and Ors. Vs. State of Tamil Nadu, as reported in (2002) 7 SCC 210 (supra), is not applicable in this case. The Hon'ble Supreme Court has held that the prosecution is under obligation to explain the injury caused upon the accused though those were simple in nature, but from perusal of the records, there is no suggestion that the accused persons have also sustained injury.
-6- [Cr. Appeal (SJ) No.1736 of 2004]
14. This Court has also examined the record and found that the defence has not exhibited the First Information Report filed by the accused persons against the prosecution party, as such, the judgment relied upon by the learned counsel for the appellants is not applicable in the present case.
15. This Court has perused the injury report. From the perusal of the injury report, it appears that none of the injuries found upon the person of victim are fatal for life nor the Doctor (P.W.4) has stated, that in normal course, these injuries are sufficient for death of a person, rather Dr. M. S. Sattar (P.W.4), who has examined the victim, has categorically mentioned in injury report, which has been proved and marked as Exhibit-1, sharp-cut of 2½" x ½ " x bone deep caused by sharp-cut weapon and other three injuries found on the right elbow, which has caused blood clots and 3 rd injury is with respect to assault made on the back of the informant, but all the injuries are found to be simple in nature. Further, Dr. M. S. Sattar (P.W.4) during his cross-examination, has admitted that sharp cut injury caused upon the informant, can be caused because of fall on sharp-edged substance, as such, considering medical evidence (i.e. injury reports) of the informant, this Court is of the opinion that conviction of the appellants under Sections 307/149 cannot sustain in the eyes of law.
Considering the land dispute between agnates and the injuries which are simple in nature, this Court sets aside the conviction of the appellants under Section 307/149 I.P.C. and convicts the appellants under Section 323 I.P.C.
The conviction and sentence of the appellants under Section 341 I.P.C. is upheld and affirmed. The sentence awarded to the appellants under Section 323 I.P.C. as period already undergone by the appellants which is approximately three months.
In the result, the present Criminal Appeal is dismissed with modification in conviction under Sections 307/149 I.P.C. to 323 I.P.C. and no interference has been made for conviction and sentence for the offence committed and punishable under Section 341 I.P.C. The sentence is being awarded, as period already undergone which is approximately three months.
In the result, this Criminal Appeal is hereby dismissed with modification, as stated above.
The appellants, who are on bail, their bonds are cancelled, as they have already undergone sentence imposed by this Hon'ble Court.
16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi.
Dated 28th August, 2018/ sandeep