Jharkhand High Court
Ranjit Rana & Anr. vs State Of Jharkhand on 14 December, 2016
Equivalent citations: 2017 (3) AJR 367, (2017) 170 ALLINDCAS 767 (JHA)
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 912 of 2003
...
(Arises out of the judgment of conviction and order of
sentence dated 20.6.2003 passed by learned Additional
Sessions Judge, F.T.C.3, Hazaribag in S.T. No. 551/2001,
arising out of Katkamsandi P.S. Case No. 39/2001, G.R.
No. 624/2001)
1. Ranjit Rana.
2. Nageshwar Rana.
Both are sons of Sita Rana, resident of Belargada, PS
Katkamsandi, District-Hazaribag.
... Appellants
-V e r s u s-
The State of Jharkhand ... Respondent
...
PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. Dilip Kr. Prasad, Advocate.
For the State : Mr. Azimuddin, A.P.P.
-------
Reserved on: 30/06/2016 Pronounced on: 14 /12 /2016
...
Ratnaker Bhengra, J.:
The instant appeal arises out of the judgment of conviction
and order of sentence dated 20.6.2003 passed by learned
Additional Sessions Judge, F.T.C.3, Hazaribag in S.T. No.
551/2001, arising out of Katkamsandi P.S. Case No. 39/2001, G.R.
No. 624/2001, whereby and whereunder, appellant No.1 stands
convicted under Section 326 of the Indian Penal Code and
appellant No.2 under Section 323 of the Indian Penal Code and
sentenced to R.I. for 7 years and 6 months respectively.
2. The fardbeyan of informant Lalan Rana, recorded by ASI
Ajadi Ram of Sadar Police Hazaribag at 11:15 hours on 11.3.2001
at Sadar Hospital, Hazaribagh is the basis of this case.
Prosecution case, according to this fardbeyan is that on
11.3.2001, at about 8:00 O'clock in the morning, when he was constructing house over his share of land, his cognates (accused) Nageshwar Rana, Mahesh Rana, Ranjit Rana, Sita Rana, Bhikhan 2 Rana and Prem Rana came armed with deadly weapon abused him and objected from constructing house. The informant told that he is constructing house on his own land. Upon which the accused persons started assaulting him with lathi and farsa. Accused Nageshwar assaulted him with lathi on his head due to which his head was broken and started bleeding. His sister-in-law Malti Devi was assaulted by Ranjit Rana on head by farsa due to which her head was also broken. Her brother Kailash Rana and Khemlal Rana were also assaulted and injured by the aforesaid person. They had come to Sadar Hospital, Hazaribag for treatment.
3. The recording police officer forwarded the fardbeyan to officer-in-charge of Katkamsandi police station for necessary action. The officer-in-charge of Katkamsandi police station, on receipt of the fardbeyan, registered it as Katkamsandi P.S. Case No. 39/01 dated 11.3.2001 for the offence under Sections 147, 148, 149, 323, 324 IPC and himself took up the investigation.
4. The police after concluding investigation submitted chargesheet against all the six accused persons for the offence under Sections 147, 148, 149, 323, 326 & 307 IPC.
5. Learned CJM, Hazaribag on receipt of the chargesheet aforesaid took cognizance for the aforesaid offence and made over the case to learned Judicial Magistrate, Hazaribag for commiting the case to the Court of Sessions, who after supplying the police paper to the accused persons committed the case to the Court of Sessions.
6. Charges were framed for the offence under Sections 147, 148, 149, 323, 326 and 307 IPC against the accused persons to which they pleaded not guilty and claimed to be tried.
7. Prosecution has examined the following witnesses:
(i) PW-1 Kailash Rana. He is cousin brother of the informant and eye witness to the occurrence;3
(ii) PW-2 Vijay Rana. He is also the eye witness to the occurrence. He is also a person, who was participating in constructing of house, when the occurrence took place;
(iii) PW-3 Churaman Rana. He is eye witness to the occurrence and brother of PW-2 Vijay Rana;
(iv) PW-4 Malti Devi. She is sister-in-law of the informant and one of the injured eye witness;
(v) PW-5 Lalan Rana. He is the informant of this case and also the victim of the assault;
(vi) PW-6 Loki Mahto. He is a witness to the occurrence named in the chargesheet;
(vii) PW-7 Dr. Raghunath Singh. He is Medical Officer, who has examined the injured persons. He has also proved their injury reports.
8. Learned trial Judge placing reliance on evidences and documents available on records, held the appellants guilty and inflicted sentence, as indicated above. Hence, this appeal.
9. PW-5 Lalan Rana, who is the informant of this case, has deposed and supported his statement in the FIR and said regarding assault on himself that Nageshwar Rana assaulted him with lathi on his head, due to which, he was injured and his head started bleeding. Accused Ranjit Rana assaulted Malti Devi with farsa on her head, due to which, she was injured. He has proved his signature, and the signatures of Kailash Rana and Khemlal Rana on fardbeyan and which have been marked as Ext. 1 to Ext.1/2.
10. Another injured Malti Devi is PW-4. She is wife of Kailash Rana. She deposed that on the day of occurrence she was standing at her door with a baby in her lap. Her Dewar Lalan Rana was preparing the mud for erecting wall then Mahesh Rana, Ranjit Rana, Bhikhan Rana, Nageshwar Rana, Sita Rana and Prem Rana came and started abusing. Ranjit Rana assaulted her with farsa on her head due to which she got cut injury. Lalan was assaulted by Nageshwar Rana. They were treated in Sadar Hospital.
4In her cross-examination, para-8, she said appellant Ranjit Rana had inflicted farsa blow on her.
11. PW-1, Kailash Rana, has deposed that he was also participating in construction of house along with Khemlal, Lalan, Vijay, then Nageshwar, Mahesh, Ranjit, Prem, Bhikhan and Sita Rana came, abused them and started assaulting. Nageshwar assaulted Lalan on his had with lathi, Ranjit assaulted Malti on her head with farsa and all accused persons assaulted them with lathi danda. Thereafter they came to Sadar Hospital where the treatment for the injuries was done.
12. PW-2 Vijay Rana also supported about the construction of house and deposed that accused Ranjit was armed with farsa, and accused Nageshwar was armed with lathi (stick). The accused started abusing, claiming the land and assaulted them. Ranjit assaulted Malti with farsa on her head causing her injuries. Nageshwar assaulted Lalan on his head. Accordingly, due to assault they became injured and came to Sadar Hospital where they were treated.
13. PW-3 Churaman Rana. He deposed that he was also present where construction work was going on, then, accused Nageshwar, Mahesh, Ranjit, Sita etc. came and assaulted. Accused Ranjit Rana assaulted Malti with farsa. Informant Lalan was assaulted with lathi by Nageshwar. They went to the Sardar Hospital after assault where they were treated. At para-6 of cross examination, he affirmed assault by farsa on Malti.
In his cross-examination, he said, Malti Devi was assaulted on her head by farsa.
14. PW-6 Loki Mahto, a co-villager deposed that the occurrence took place at 8 O'clock of morning at that time he was at his home then assault took place on the point of construction of house. Both parties sustained injuries. Malti and Lalan also sustained injuries. He intervened and mitigated the quarrel. This witness did not say as to who assaulted whom. His house is beside the place of occurrence.
515. PW-7 Dr. Raghunath Singh is the Medical Officer, who has examined the injured persons. According to his evidence, he has examined injured Malti Devi, Khemlal Rana, Kailash Rana and Lalan Rana. The Doctor has opined about the injury on Malti Devi as grievous caused by sharp cutting instrument but at the same time he mentioned in the injury report Ext.2 that regarding injury of skull bone opinion is reserved till X-ray report is obtained. This X-ray report was placed before them later than he submitted supplementary report Ext.2/1 mentioning therein that according to radiologist of Sadar Hospital, Hazaribag Dr. M. Aind, vide X-ray plate No.58/440 dated 14.3.01, it showed crack on skull bone and accordingly, confirmed his opinion about the nature of injury by reporting grievous injury caused by sharp cutting weapon. Only one injury was found on the person of Lalan Rana, lacerated wound over back of head 1/2" x 1/4" x skindeep, nature simple, caused by hard and blunt substance. Injury report of informant Lalan is marked as Ext. 2/4.
16. Defence has examined following witnesses:
(i) DW-1 Santosh Prasad Mehta. He is villager of the party and their neighbour. He is witness on the point that on the date of occurrence the informant and injured of this case have assaulted accused persons of this case;
(ii) DW 2, Puran Gope. He is formal in nature and he has formally proved Government Malguzari rent receipt Ext. A, A/1, A/ 2 and Basgit parcha Ext.B in the name of Bhikan Mistry and Basgit parcha, Ext.B/1 in the name of Sita Mistry.
17. First and foremost, learned counsel for the appellants has argued that the FIR allegedly registered on 11.03.2001 was received in the office of the Chief Judicial Magistrate on 16.03.2001, after a gap of five days and this delay has never been adequately explained.
18. He has also argued that in this case, as per the fadebeyan, there are six named persons, who were there at the time of assault made on the informant, his sister-in-law, his brother and 6 one Khemlal Rana. That the learned Trial Court has acquitted four persons, i.e. Mahesh Rana, Sita Rana, Bhikhan Rana and Prem Rana, under the same set of circumstances and evidence, hence, these two appellants being similarly circumstanced also need to be acquitted.
19. Appellants' counsel has argued that there was also a case filed by Nageshwar Rana, appellant No.2, which is registered as Katkamsandi P.S. Case No. 38/2001. According to him, on 11.3.01 at about 8 O'Clock of morning villagers Vijay Rana, Kauleshwar Rana, Sahdeo Rana, Lalan Rana, Khemlal Rana and Churaman Rana were preparing mud for constructing wall on his land, regarding which, court case is going on. He and his brother Mahesh went there to stop them from the work then the informant's side formed unlawful assembly armed with lathi, farsa, spade, kudal, gaita and attacked upon them. Kauleshwar assaulted him with farsa on his head. Lalan Rana assaulted his brother Mahesh with lathi on his back hand and Khemlal Rana assaulted his mother on her head, hand and back and injured them. Villagers came there and settled the fight. It also stands admitted that the informant group was constructing house and the accused group went to object then the fight occurred. The defence counsel argued that there should be no punishment for such civil offence because admittedly there is dispute between the parties and are in litigating terms and both the parties assaulted one another. The assault was for exercise of their right over the land so there is absence of criminal mens rea, which means that no crime has been committed, accordingly, no offence has been committed. And certainly not any case under Section 307 IPC.
20. Counsel for the appellants has further argued that according to Ext.C the accused persons have also sustained injuries, but the informant and his witnesses have not explained the injury found on the persons of accused either in the FIR or during evidence in court and this circumstance entitles the accused to get the order 7 of acquittal. To support this contention, a decision of Hon'ble Patna High Court, reported in 1971 PLJR124 has been cited in this case, wherein, Hon'ble Court has held that where both the parties have got bonafide claim to the land, they were agitating for the same and if both the sides have received injuries in the same occurrence, the prosecution should explain as to in what manner injuries were caused to the accused persons. The failure of the prosecution to offer any explanation in that regard shows that the evidence of the prosecution witness relating to the incident is not true or at any rate not wholly true, without such explanation, the prosecution evidence will not be completed and no court will be prepared to act on evidence which leaves a lacuna. In the instant case, there is bonafide land dispute. Virtually, the land dispute stands admitted. The accused persons have filed papers regarding the disputed land and there is no explanation as to what manner injuries were caused to the accused persons.
21. Counsel for the appellants has also said that the accused persons had also sustained injuries, but, it has not been explained how the injuries on the side of the accused persons have been inflicted. Counsel has submitted that the matter on hand on this aspect is similar, hence, benefit should nevertheless be allowed. Though he has also cited 2003(2) East. Cr. C. 24 (Pat), which holds that in absence of injury report or injuries being proved, the benefit of doubt may not be given to the accused.
22. Counsel for the defence has also read out Section 320 IPC, which is as under:
"320. Grievous hurt.- The following kinds of hurt only are designated as "grievous":-
First.- Emasculation.
Secondly.-Permanent privation of the sight of either eye.
Thirdly.- Permanent privation of the hearing of either ear, Fourthly.- Privation of any member or joint. Fifthly.- Destruction or permanent impairing of the powers of any member or joint.
Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth.8
Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Defence counsel has explained Section 320 IPC and argued that if we apply each sub-section of this Section, it is not seen how any of the sub-sections from the first to the eighth is made out in the instant case. Most of the injuries are simple in nature and even the injury on Malti Devi has not been declared to be life threatening.
23. Counsel for the appellants argued that all the witnesses examined, except the Doctor, are either relatives or not independent witnesses. Therefore, in the absence of independent witnesses, evidence against the appellants will certainly be questionable, if not hostile.
24. Counsel for the appellants has further argued that in the accusation put to Ranjit Rana under Section 313 Cr.P.C., it is said that the appellant had assaulted Kailash Rana with farsa and grievously injured him. Counsel has said that this injury pertains to Malti Devi. Hence, the wrong question was put to the accused- appellant and therefore, his defence was prejudiced right from the beginning of the trial and hence, vitiated.
25. Counsel for the appellants has further argued that Ranjit Rana, appellant No.1, has been convicted for the offence under Section 326 of the Indian Penal Code and sentenced to R.I. for 7 years, which is triable by Magistrate, so his sentence for 7 years is incorrect and should have been reduced.
26. Finally, he has said that the IO was not examined and in his absence, place of occurrence or the weapons used are not proved. Hence, weapons alleged to be used, such as, lathi and farsa have not been proved. If the weapons of assault are not established, then offence itself is not proved, let alone the place of occurrence. Therefore, non-examination of the IO prejudices the appellants and therefore, assault on the informant's side 9 cannot be sustained. Counsel has then asserted that none of the allegations imputed to Ranjit Rana are applicable.
27. Finally, counsel has also sought to argue that complaint was made at around 11:15 a.m., but, FIR was only lodged at 5:00 p.m.
28. Counsel for the State, the learned A.P.P., has said that there is direct evidence from at least five persons, who are witnesses to the occurrence, two of whom are themselves injured and hence fully reliable. Regarding argument, pertaining to Section 313 Cr.P.C. Learned A.P.P. has submitted that these are mere technical arguments to try and overcome the clear cut evidences available. They do not overrule the eye witnesses. Regarding argument on delay, he has said that it is not so much as to be questionable.
FINDINGS
29. Having heard the arguments of both counsels, gone through the records of the case, the case of the appellants have to be viewed in two perspectives, one is whether they are guilty of the offences as alleged, and secondly, are there any mitigating circumstances. If one looks at the fardbeyan, it is rather simple and straight forward, that when informant was constructing house, his agnates abused and assaulted him and three others with lathi and farsa, resulting in injuries, particularly on Malti Devi and informant himself, and to some extent the other two persons. Regarding such assault, there are four eye witnesses at least to the incident and all of them are injured, with PW-5, Lalan Rana and PW-4, Malti Devi injured significantly. So it also seems to be a case where, not only are there eye witnesses but injured eye witnesses, of which it has been held that such witnesses are more reliable.
Then, there is the evidence of PW-7, Dr. Raghunath Singh, he has examined all the four injured persons and injuries of various sizes and dimensions have been pointed out by the Doctor. The injury of the informant is simple in nature, however, the injury of Malti Devi, said to be grievous and is attributed to 10 sharp cutting weapon. Therefore, ocular evidence seems to be corroborated by medical evidence and the findings so far would strongly point to the incident or the assault being committed.
It has also come on record that both sides are related to each other and there was an existing land dispute, and at the time of the incident, it was actually more of a matter of case and counter case. Since I have to address primarily the case I have on hand, I have already indicated that by ocular evidence, corroborated by medical evidence, assault is evidently made out, definitely to bring it within the ambit of at least Section 326 IPC.
Counsel had argued that since a counter case was also filed, and even the appellants' side had received injuries, hence, the offence alleged is either not made out or mitigated. It seems that even the lower court had gone into this aspect, and correctly held that in case such appellants want to get some relief then the appellants need to show or produce medical or injury reports to prove their claims. This has apparently not been done, so this line of argument will not help these appellants.
Another argument has been that the questions put to the appellants under Section 313 Cr.P.C. were not correct or proper, hence, in the case, the guilt of the appellants cannot be sustained because of incorrect and wrong imputation or question being put to the appellants. It has been observed in "Ramnaresh and others versus State of Chhattisgarh", reported in AIR 2012 SC 1357, that the statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice and to give an opportunity to furnish explanation of the incriminating material found against a person during trial. However, the statement cannot be made the basis of his or her conviction. The statement of the accused under Section 313 Cr.P.C. cannot be a substitute for the evidence of the prosecution. I think the statement under Section 313 Cr.P.C. is not the sole basis for either convicting or exonerating him or her. Hence, though, in this case, the question put to him is to a certain extent 11 incorrect, it cannot demolish the total case against him. The misstatement should not unduly benefit the accused, in this case, given the other evidences available it cannot be said that prejudice has been caused to the appellants.
Hence, on going through the aforesaid findings and reasoning, seeing that appellant Nageshwar Rana had only dealt blow with lathi, his offence under Section 323 IPC is upheld and he is found guilty for the same. Regarding the assault by the appellant Ranjit Rana, he has assaulted Malti Devi by farsa or a sharp cutting weapon. But it has been said that the wound was not life threatening. Hence, he is held guilty for the offence under Section 326 IPC, but, a lesser sentence may be appropriate, also due to the fact of passage of time and vagaries and hardships of trial. Hence, the six (6) months sentence for Nageshwar Rana under Section 323 IPC is upheld, subject to any period undergone. Appellant Ranjit Rana is sentenced to a modified sentence of three (3) years, subject to any period already undergone by him. Appellants are on bail. Their bail bonds are cancelled. Learned concerned or successor court is directed to take steps in accordance with law to procure their arrest for serving out the remaining sentence.
30. With the aforesaid observations and directions, this criminal appeal stands dismissed with the above modification in sentence .
(Ratnaker Bhengra, J.) SB/ NAFR....