Jharkhand High Court
Rameshwar Rai vs The State Of Jharkhand on 30 April, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 38 of 2004
.....
(Against the judgment of conviction and order of sentence both dated 20.12.2003 passed by learned Additional District and Sessions Judge, 1st (Fast Track Court), Giridih in S.T. Case No. 37 of 2001.
1.Rameshwar Rai, son of Huro Rai,
2.Prakash Rai, son of Rameshwar Rai,
3.Umesh Rai@ Umesh Kumar Rai, son of Rameshwar Rai,
4.Sudhir Rai, son of Rameshwar Rai, All residents of village-Koso, Gondodighi, P.S. Deori, District- Giridih.
..... Appellants
Versus
The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellants :Mr. Satish Kumar Ughal, Advocate
Mr. Kiran Choubey, Advocate
For the State :Mr. Sanjay Kumar Pandey, Additional Publice Prosecutor
For the Informant :Mr. Vijay Kumar Roy, Advocate
By Court:-
Heard learned counsel for the appellants Mr. Satish Kumar Ughal assisted by Mr. Kiran Choubey, Advocates as well as learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor assisted by learned counsel for the informant Mr. Vijay Kumar Roy, Advocate.
2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence both dated 20.12.2003 passed by learned Additional District and Sessions Judge, 1st (Fast Track Court), Giridih in S.T. Case No. 37 of 2001, whereby the learned Additional District and Sessions Judge 1st Fast Track Court, Giridih has convicted all the four appellants namely Rameshwar Rai, Prakash Rai, Umesh Rai and Sudhir Rai by the impugned judgment. So far as Rameshwar Rai (appellant No. 1) is concerned, he has been convicted for charge under Section 324/448 of the Indian Penal Code and has been awarded rigorous imprisonment for six months for offence punishable under Section 448 of the Indian Penal Code and rigorous imprisonment for two years for offence punishable under Section 324 of the Indian Penal Code respectively. Appellant no. 2 (Prakash Rai) has been convicted under Section 324/448/380 of the Indian Penal Code and awarded rigorous imprisonment for two years for offence punishable under Section 324 of the Indian Penal Code and rigorous imprisonment for six months for 2 offence punishable under Section 448 of the Indian Penal Code and rigorous imprisonment for two years for offence punishable under Section 380 of the Indian Penal Code. Umesh Rai (Appellant No. 3) has been convicted for charge under Section 323/448/380 of the Indian Penal Code and has been awarded six months rigorous imprisonment under Section 448 of the Indian Penal Code, six months imprisonment under Section 323 of the Indian Penal Code and rigorous imprisonment for two years under Section 380 of the Indian Penal Code. Sudhir Rai (appellant no. 4) has been convicted for charge under Section 326/448 of the Indian Penal Code and awarded rigorous imprisonment for seven years for offence punishable under Section 326 of the Indian Penal Code and further rigorous imprisonment for six months under Section 448 of the Indian Penal Code and all the sentences are directed to run concurrently.
Being aggrieved by the said impugned judgment of conviction and order of sentence, all the four appellants have preferred the instant criminal appeal before this Hon'ble Court on 08.01.2004 which has been admitted on 01.04.2004 and provisional bail granted to the appellants, Rameshwar Rai, Prakash Rai, Umesh Rai have been confirmed on 01.04.2004 by this Hon'ble Court. Lower court record was called for vide order dated 01.04.2004 for consideration of suspension of sentence of appellant no. 4 Sudhir Rai, which was considered by this Hon'ble Court on 14.05.2004, on that date bail was granted suspending his sentence. Since then the matter is pending before this Hon'ble Court.
3. Briefly stated, the prosecution case is based upon the fardbeyan of Janardan Rai (P.W. 4) recorded by Rameshwar, Officer-in-charge, Deori Police Station at 9.00 a.m. at Primary Health Centre, Deori whereby the informant has stated that while he was ploughing his field along with his brother, Shiv Shankar Rai on 25.06.2000 at around 7.00 a.m, co-villagers and his agnates Sudhir Rai, Prakash Rai, Umesh Rai, all sons of Rameshwar Rai and Rameshwar Rai came with sword, lathi, bhala, barchha and threatened both the brothers with dire consequences. The informant has said, that both brothers (Janardan Rai and Shiv Shankar Rai) fled away under fear and came to their house but were followed by the accused persons and in the courtyard of the informant accused persons assaulted them, due to which the informant and his brother became unconscious. Thereafter Umesh Rai and Prakash Rai entered into the house and took out two boxes. The informant has further stated, that 3 because of assault, he sustained fracture in his leg and his brother also sustained injuries on the head, leg and other parts of the body. The informant and the injured were brought by the co-villagers to the Primary Health Centre, Deori, where treatment is going on. The informant has stated that occurrence took place because of distribution of land between the agnates.
4. On the basis of the fardbeyan of the informant, Police registered Deori P.S. Case No. 42 of 2000 and after investigation submitted charge sheet vide No. 92 of 2000 dated 21.10.2000 under Section 448/323/324/326/380/307/34 of the Indian Penal Code against all the four appellants.
5. The cognizance of the offence was taken vide order dated 01.12.2000 and the case has been committed to the court of Sessions vide notification dated 18.01.2001. The charge has been framed against all the four appellants under Section 307/34 and 448 of the Indian Penal Code on 01.10.2001. Charge under Section 324 of the Indian Penal Code has been framed against Rameshwar Rai and Prakash Rai, charge under section 323 of the Indian Penal Code has been framed against Umesh Rai and charge under Section 326 of the Indian Penal Code has been framed against Sudhir Rai and charge under section 380 of the Indian Penal Code has been framed against Umesh Rai and Prakash Rai on 1.10.2001, to which the appellants pleaded their innocence. Thus they were put under trial.
6. That prosecution has examined eight witnesses and has adduced documentary evidence to prove its case. P.W. 1 is Vyas Mani, P.W. 2 is Laxmi Rai, P.W.3 is Shiv Shankar Rai, P.W. 4 is Janardan Rai (informant and the injured of the case), P.W. 5 Arun Rai (hostile), P.W. 6 is Rameshwar (Officer- in-charge -cum- the Investigating Officer of the case), P.W. 7 is Dr. Jitendra Kumar Sharma (Medical Officer posted at Primary Health Centre, Deori) who has examined both injured Janardan Rai and Shiv Shankar Rai and P.W. 8 is Jageshwar Choubey (an advocate clerk).
7. Signature of Vyas Mani, on the seizure list has been proved and marked as Exhibit 1, Signature of Laxmi Rai (P.W. 2) on the seizure list has been prove and marked as Exhibit 1/1, Seizure list has been proved and marked as Exhibit 2, signature of informant on fardbeyan has been proved and marked as Exhibit 3, forwarding of the Officer-in-charge on the fardbeyan has been proved and marked as Exhibit 3/1, fardbeyan of the informant has been prove and marked as Exhibit 3/2, endorsement on the fardbeyan has been 4 proved and marked as Exhibit 3/3, police requisition of Janardan Rai and Shiv Shankar Rai has been proved and marked as Exhibit 4 and 4/1, formal F.I.R. has been proved and marked Exhibit 5, injury reports of Janardan Rai and Shiv Shankar Rai issued by Dr. Jitendra Sharma (P.W. 7) have been proved and marked as Exhibit 6 and 6/1 and all the exhibits have been marked without any objection.
8. That after closure of prosecution evidence, the statement of the appellants have been recorded under Section 313 of Cr.P.C. on 02.05.2003, where the appellants have pleaded their innocence but have not explained why they have been implicated in this case.
9. After hearing the parties and perusing the material available on record, the learned Trial Court has convicted the appellant. Being aggrieved, the instant Criminal Appeal has been preferred before this Hon'ble Court.
10. Learned counsel for the appellant Mr. Satish Ughal has submitted, that there is a material contradiction in the evidence of prosecution witnesses. He has further submitted, that the place of occurrence has not been proved and blood stained soil has not been sent for chemical examination, which has been seized by the police and marked Exhibit-2. He has further submitted, that occurrence took place between the agnates for land dispute in the year 2000 and in the First Information Report, there is no description, that which of the appellants were having which weapon and has assaulted which of the injured and as such benefit of doubt may be given in favour of the appellants.
The learned counsel for the State, Mr. Sanjay Kumar Pandey, Additional Public Prosecutor assisted by learned counsel for the informant Mr. Vijay Kumar Roy, Advocate has submitted, that there is no material contradictions in the evidence of the prosecution witnesses.
11. Injured Shiv Shankar Rai has been examined as P.W. 3 and he has categorically stated, that Sudhir Rai (Appellant No. 4) was having sword, Rameshwar Rai (Appellant No. 1) was having barchha, Prakash Rai (Appellant No. 2) was having bhala and Umesh Rai (Appellant No. 3) was having lathi. This witness has stated, that all the accused persons entered into the courtyard and assaulted them (Shiv Shankar Rai and Janardan Rai) and because of assault made by Sudhir Rai (Appellant no. 4) by bhala on the lower part of the right leg of Janardan Rai, his leg bone has been fractured in two parts. Rameshwar Rai (Appellant no. 1) has assaulted on the head of the Janardan Rai and Sudhir Rai (Appellant no. 4) has assaulted on the left thumb 5 of his hand by sword. Umesh Rai (Appellant no. 3) has assaulted Janardan Rai by lathi on back of his head and back. This witness has further stated that Prakash Rai (appellant no. 2) has assaulted him by bhala on right and left side of his head. Umesh Rai (appellant no. 3) has assaulted him by lathi on back, left leg and upper part of the left eye, and on the left hand. On brawl, the villagers assembled, then Umesh Rai (appellant no. 3) and Prakash Rai (appellant no. 2) entered into the room and have taken two boxes containing jewellery, cash and cloths. This witness has stated that initial treatment was given to both brothers at Deori Primary Health Centre and from Deori Primary Health Centre, his brother Janardan Rai (informant of the case) has been referred to Giridih and from Giridih, he was referred to Patna, where he was under treatment for one and half year and remained in the hospital for seven months.
Nothing has been elucidated during cross-examination, by the defence to dis-believe that prosecution version as stated by Shiv Shankar Rai (P.W. 3).
12. This court on perusal of the evidence of Shiv Shankar Rai (P.W.3) is also of the opinion, that some minor contradictions are there but consistent evidence has been brought by the prosecution causing injury over the legs and other part of the body of Janardan Rai and Shiv Shankar Rai by these four appellants in the courtyard of Janardan Rai and as such, there is nothing to be disbelieved except minor contradictions. The offence has been committed by these four appellants causing grievous injury to Janardan Rai and Shiv Shankar Rai (Exhibit 6 and 6/1).
Janardan Rai has sustained five injuries (Exhibit 6):-
(i) Incised wound with bleeding and compound fracture of upper part of tibia- 3" x 2"x bone deep of 5" below the knee joint (right).
(ii) Incised wound oozing of blood 1 ½"x ¼" x 1/6"
on left hand in between index and thumb.
(iii) Lacerated wound, oozing of blood 4" x ¼" x scalp deep on the scalp of frontal bone in the middle.
(iv) Lacerated wound oozing of blood 3" x ¼" x scalp deep on the occipital bone of right side.
(v) Swelling with bruise - red colour 3" x 2" on the right fore-arm.
Shiv Shankar Rai has sustained seven injuries (Exhibit 6/1):-
(i) Lacerated wound oozing of blood 1" x ¼" x scalp deep on the scalp of the left parietal bone.
6(ii) Incised wound- oozing of blood 2 ½"x ¼" x scalp deep on the scalp occipital bone left side.
(iii) Lacerated wound - oozing of blood ¼" x 1/6" x 1/6" on the fore head left side.
(iv) Swelling with bruise- red- 4" x 3" x posterior to the left ear on the neck.
(v) Swelling with bruise - red- 4" x 2" above the left ankle joint.
(vi) Swelling with bruise - red- 2" x 1" on the right fore-arm.
(vii) Bruise - red - 6" x 1" on the left side of the back.
13. Injury no. 1 and 2 of Janardan Rai have been caused by sharp cut weapon, injury no. 3, 4 and 5 of Janardan Rai have been caused by hard and blunt substances and injury no. 1 of Janardan Rai is grievous. Injury no. 2 of Shiv Shankar Rai has been caused by sharp cut weapon and other injuries have been caused by hard and blunt substances but all the injury of Shiv Shankar Rai are simple in nature. From perusal of Exhibit-4 and 4/1 and compared the same with Exhibit 6 and 6/1 i.e. police requisitions and the injury reports, there are consistency and as such, this court is of the opinion that because of the assault made by all the four appellants, Shiv Shankar Rai and Janardan Rai have sustained one grievous injury caused by Sudhir Rai and the learned Trial Court has rightly convicted Sudhir Rai under Section 326 of the Indian Penal Code and Rameshwar Rai and Prakash Rai under Section 324 of the Indian Penal Code and Umesh Rai under Section 323 of the Indian Penal Code.
14. Janardan Rai has been examined as P.W. 4. He is the informant and injured of the case. From perusal of the evidence, there is no contradictions, so far allegation of assault is made. This witness has categorically stated that Sudhir Rai assaulted on his right leg, causing fracture of leg bone in two parts. Rameshwar Rai has assaulted twice on the head by means of barchha and Umesh Rai has assaulted by lathi on right hand and right leg and Prakash Rai and Umesh Rai have taken two boxes and Prakash Rai has also assaulted his brother on the head by bhala. This witness has stated that his fardbeyan was recorded by the Officer-in-Charge, upon which he put his signature and proved and marked the same as Exhibit 3. The signature of the Officer-in- charge as Exhibit 3/1. This witness has stated that he was treated at Deori Primary Health Centre and subsequently at Giridih Sadar Hospital and lastly at Patna (Sanjeevani Nursing Home, Kankarbagh), where he was under 7
treatment for seven months in hospital and he cannot walk without the help of the crutches. Attention has been drawn in paragraph 8 of his cross- examination, that contradiction with regard to his statement in the fardbeyan has been drawn but such contradictions has not been taken from the Investigating Officer, who has been examined as P.W. 6. From perusal of the evidence of P.W. 4 (informant of this case), this court is of the opinion that there is nothing in the cross-examination, made by the defence to disbelieve the evidence of this witness and as such, this Court is of the opinion that evidence of P.W. 3 and P.W. 4 are consistent to each other, strengthened from Exhibit 4 and 4/1 (police requisition) and proved by Exhibit 6 and 6/1 (injury report).
15. Arun Kumar Rai has been examined as P.W. 5 and has been declared hostile by the prosecution.
16. Mr. Rameshwar, Officer-in-Charge and Investigating Officer of this case has been examined as P.W. 6. He has proved the fardbeyan bearing signature of Janardan Rai as Exhibit 3/2 and the police requisition of the injured as Exhibit-4 and 4/1. The place of occurrence, described by the Investigating Officer in paragraph 2 of his examination-in-chief, first place of occurrence is in the baari, where the initial occurrence took place and the second place of occurrence, is the courtyard of the informant, where assault took place. The contradiction with regard to the statement of injured, Shiv Shankar Rai (P.W. 3) has been taken by the defence, which has been recorded in paragraph 9 of his cross-examination. This court is aware of Section 171 (2) of the Cr.P.C. The court has also perused the case diary. The statement of Shiv Shankar Rai has been recorded under Section 161 Cr.P.C. but nothing has been found there, as it has been stated by the Investigating Officer (P.W. 6) Mr. Rameshwar, in paragraph 10 of his cross-examination rather, evidence are consistent and as such this court is of the opinion that defence has not elucidated any fact to disbelieve the prosecution case.
17. Dr. Jitendra Kumar Sharma, the Medical Officer, Primary Health Centre, Deori, has been examined as P.W. 7 and has deposed in the court and proved the injury report of Janardan Rai and Shiv Shankar Rai written and issued by him bearing his signature and marked the same as Exhibit 6 and 6/1 and after treatment the injured Janardan Rai was referred for better treatment and injured Shiv Shankar Rai was kept under observation. The defence has not brought anything on record from cross-examination, of this doctor which goes 8 to the root of the prosecution case and thus this court is of the opinion that the fardbeyan (Exhibit- 3/2), the deposition of Shiv Shankar Rai (P.W. 3) and deposition of Janardan Rai (P.W. 4) are consistent with the prosecution case and Dr. Jitendra Kumar Sharma (P.W. 7) who has proved the injury reports as Exhibit 6 and 6/1.
Jogeshwar Choubey (formal witness) has proved the signature of Dr. Vijay Narayan Singh on the medical report of Janardan Rai issued by Sanjeevani Nursing Home, Kankarbagh, Patna as Exhibit-7 which has been marked Exhibit without objection.
18. After hearing Mr. Satish Ughal, learned counsel for the appellant, Mr. assisted by Ms. Kiran Choubey, Advocate and from perusal of the evidence on record this court is of the opinion that prosecution has been able to prove the case against Sudhir Rai (appellant no. 4), so far charge under Section 326 of the Indian Penal Code is concerned. The material which has been brought on record that is fardbeyan, evidence of Shiv Shankar Rai (P.W. 3), evidence of Janardan Rai (P.W. 4), evidence of Rameshwar (P.W. 6), evidence of Dr. Jitendra Kumar Sharma (P.W. 7) are in consonance with the Exhibit 4 and 4/1 i.e. police requisition and injury report i.e. Exhibit 6 and 6/1 and as such, this court is of the opinion that the learned Trial Court has rightly convicted Sudhir Rai under Section 326 of the Indian Penal Code. So far as evidence against Rameshwar Rai (appellant no. 1) and Prakash Rai (appellant no. 2) are concerned, this court is of the opinion that conviction of Rameshwar Rai (appellant no. 1) under Section 324 of the Indian Penal Code for causing injury upon Janardan Rai and Shiv Shankar Rai (appellant no. 3) are justified. So far the conviction of appellant no. 4, Umesh Rai is concerned, the learned Trial Court has rightly convicted him under Section 323 of the Indian Penal Code. The learned Trial Court has rightly convicted all the four accused persons under Section 448 of the Indian Penal Code as the place of occurrence has been proved inside the courtyard of the informant but so far the evidence for conviction under Section 380 is concerned which is against Prakash Rai and Umesh Rai, there is no material on record except the statement of the witnesses. The description given by the informant Janardan Rai (P.W. 4) and Shiv Shankar Rai (P.W. 3) are also not consistent and in absence of any material, only on the basis of statement of these two persons, conviction under Section 380 of the Indian Penal Code cannot sustain in the eyes of law.
19. For the aforesaid above discussions, this court is of the opinion that 9 the learned Trial Court has rightly convicted Rameshwar Rai under Section 324/448, Prakash Rai under Section 324/448, Umesh Rai under Section 323/448 and Sudhir Rai under Section 326/448 of the Indian Penal Code but has erroneously convicted Prakash Rai and Umesh Rai under Section 380 of the Indian Penal Code and as such this court is of the opinion that no interference is required at this stage with respect to conviction, as stated above except under Section 380 of the Indian Penal Code against Prakash Rai (appellant no. 2) and Umesh Rai (appellant no. 3).
20. Without interfering in the judgment of conviction and order of sentence, the criminal appeal preferred by the appellants is dismissed in part.
21. Thus, the impugned judgment of conviction and order of sentence both dated 20.12.2003 passed by learned Additional District and Sessions Judge, 1st (Fast Track Court), Giridih in S.T. Case No. 37 of 2001 in connection with Deori P.S. Case No. 42 of 2000 consequent G.R. No. 989/2000 is confirmed as aforesaid and the appellants who are on bail are directed to surrender before the Lower Court within 15 days to serve out rest of the sentence failing which the Trial Court is directed to take all steps for their appearance to serve out rest of their sentence. The period already undergone by the appellants during trial and pendency of this appeal shall be set off.
22. Let the lower court record be sent down to the court concerned along with a copy of this judgment.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 30.04.2018 Pallavi/