Jharkhand High Court
Viajy Lakra ? Birju Lakra vs State Of Jharkhand on 11 July, 2016
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Criminal Appeal No. 868 of 2002
[ Against the judgment of conviction and order of sentence
dated 29.11.2002, passed by the learned 4th Additional
Sessions Judge, Bermo at Tenughat in S.T. No.9 of 1996,
arising out of I.E.L. P.S. Case No. 31 of 1995 ]
Vijay Lakra @ Birju Lakra, son of Tartious Lakra, resident of Khamra,
PS I.E.L. District Bokaro. ....Appellant
Versus
The State of Jharkhand .... Respondent
PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Awanish Shankar, Amicus Curiae.
For the State : Mr. Priyadarshi, A.P.P.
J U D G M E N T
By Court: Instant criminal appeal is directed against the judgment of
conviction and order of sentence dated 29.11.2002, passed by the learned 4th Additional Sessions Judge, Bermo at Tenughat in S.T. No.9 of 1996, arising out of I.E.L. P.S. Case No. 31 of 1995, whereby and whereunder, the appellant has been convicted for the offences under Sections 323, 324 and 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of 2 years each for the offences under Sections 452 and 324 of the Indian Penal Code and one year for the offence under Section 323 of the Indian Penal Code. All the sentences were ordered to run concurrently.
2. Case of the prosecution, in brief, is that on 24.9.95, at about 8:00 p.m., the accused Vijay Lakra @ Birju Lakra came at the vegetable shop of the informant, namely, Dhukhan Sao and asked for his due fifty rupees from Anil Sao, who is the son of the informant. Anil Sao told the accused that he does not have the money. Thereafter, the accused had scattered the vegetables and left the place. After some time, the accused along with Roshan Lakra had entered at the house of informant and demanded again his due 2 rupees, on which, the informant told him that he does not have the money. Thereafter, both the brothers started assaulting the informant Dhukhan Sao and in the meantime, the accused Birju Lakra took out a pistol and fired at him, as a result, the informant had sustained injuries on the left side of his back and also on the left buttock. His neighbours, Ramjee Manjhi and Dalchand Ravidas had come there on hearing the sound of firing. Thereafter the accused fled away. The informant was taken to I.E.L. hospital where his fardbeyan was recorded on the same night at 10:00 p.m.
3. On the basis of fardbeyan, the police had registered the case as I.E.L. P.S. Case No.31/95 and after completing the investigation the police had submitted charge sheet against the accused persons and accordingly cognizance was taken and the case was committed to the Court of Sessions, wherein it was numbered as S.T. No.9 of 1996. Case of the coaccused, namely, Roshan Lakra was separated and separate record was sent to learned ACJM, Bermo at Tenughat for his trial under the Juvenile Justice Act since he was found juvenile.
4. Charge was framed against the accusedappellant, to which he pleaded not guilty and claimed to be tried. To substantiate the charge, prosecution has examined altogether five witnesses. Learned trial Judge placing reliance on evidences and documents available on records, held the appellant guilty and inflicted sentence, as indicated above. Hence, this appeal.
5. The evidence of informant Dhukhan Sao (PW1) indicates that on the alleged day and time of occurrence the accused Birju Lakra had demanded fifty rupees from his son at his vegetable shop, which was not given by his son to the accused. Therefore, the accused had scattered the vegetables and left the place abusing them and thereafter he and his son came to their house after closing the shop. His further evidence goes to show that the accused had come along at his house and abused him but again two minutes after, Roshan Lakra also came and demanded money from him. Thereafter there was a quarrel in between them. The informant (PW1) has further stated that the accused Bijay Lakra and Roshan Lakra both started 3 assaulting him and then accused Birju Lakra fired from his pistol from which he had sustained injury on his buttock. His evidences further goes to show that the witnesses, namely, Kishan Sao, Ramjee Manjhi and Dalchand Ravidas had arrived there on his raising alarm. Thereafter PW1 was taken to I.E.L. Hospital where the police had recorded fardbeyan on which he has put his L.T.I. and thereafter he was referred to hospital at Ranchi by the I.E.L. Hospital. He has recognized the accused in the dock.
6. The evidence of Anil Kumar Sao (PW3), who is the son of the informant, goes to show that in the night of 24.9.95 at about 8.00 p.m. he was at his vegetable shop when the accused Bijay Lakra had come there and demanded his fifty rupees and when he did not give the money to the accused then the accused had scattered the vegetables. Thereafter he had returned to his house where the accused Bijay Lakra and Roshan Lakra came and abused them and assaulted his father Dhukhan Sao. The evidence of PW3 further goes to show that Bijay Lakra had fired on his father due to which his father had sustained injury on his left buttock and back side. According to him, the accused persons had fled away on alarm raised by them. Thereafter his father was treated at I.E.L. Hospital and from there his father was referred to Ranchi Hospital.
7. The evidence of Malti Devi (PW4), who is the wife of the informant, goes to show that on the alleged day and time of occurrence the accused had come at her house and demanded money from her husband and there was a scuffle in between them. According to her, the accused Roshan had also accompanied with the accused Birju Lakra. Malti Devi (PW4) has further stated that the accused Birju took out a pistol from his pocket and fired at her husband from which her husband had sustained injury on his left buttock on his back and thereafter both the accused persons had fled away. Her further evidence goes to show that her husband was taken to I.E.L. Hospital and from there her husband was taken to Ranchi. She has recognized the accused in the dock.
8. The evidence of Ramjee Manjhi (PW2), who is a hearsay witness, goes to show that he knows Dhukhan Sao and that Dhukhan Sao was injured on his left buttock by bullet. His evidence further goes to show that treatment of Dhukhan Sao was done at I.E.L. Hospital. He has however in the cross examination said that he has not seen the accused with his eyes.
49. Jore Manjhi, PW5, has been declared hostile.
10. Mr. Awanish Shankar, learned Amicus Curiae, appearing on behalf of the appellant, has initially read out the FIR and also the depositions of PW1, PW3 and PW4, who are the persons claiming to be eye witnesses. He has also submitted that no Doctor was examined and there is no injury report to suggest any firearm injury nor it was exhibited. He has also submitted that there was no seizure of any firearm nor seizure of any blood stained cloth nor seizure of any burnt cloth. He has submitted that no firearm injury, no seizure of firearm or any burnt cloth is brought on record. Therefore, there is no material evidence to establish the allegations made against the appellant. He has further submitted that there seems to be two incidents. First incident is stated to have occurred at the shop itself when the appellant had thrown and scattered the vegetables. He has submitted that this occurrence was witnessed by many persons but none of the witnesses have come to testify the said occurrence. He has further submitted that no independent witness had proved the first incident. Then he submitted that the allegation, about the firing and the injury sustained by the informant, is of the second incident and this also has not been proved by any independent witness or any material evidence. He has further submitted that PW4 in her cross examination has said that Xray was done at Ranchi hospital but that Xray report was never produced nor any admission or discharge slip was produced to prove that they have ever gone to such hospital. He has submitted that in absence of material evidence regarding procedures and processes in the hospitals, the oral claims that he was treated in hospital would get strongly refuted. He has further submitted that actually money was due to the appellant and he was only demanding what was his just due and because of this, the false case has been instituted against him. Coming back once again to the first occurrence, he has submitted that first place was a public place with many persons around and first occurrence has not been 5 supported by any independent person. He has said that second place is the private house or dwelling of the informant. So the allegations have been made in the confines and secrecy of the dwelling place. According to him, first incident is in the public place, which is not supported by the independent witnesses but the allegations, which are made in the confines of the home, are alleged by the informant, his son and his wife. He has further submitted that nonexamination of IO would prejudice this appellant to a great extent and pointed out para6 of the deposition made by the PW4 where she had deposed that she had told the police that Birju and Roshan had come to their house and asked for Rs.50/ and that she had further told the police that Birju had taken out pistol and fired, due to which, her husband had been injured on his back and buttock. Learned Amicus Curiae has further submitted that in her statement under Section 161 Cr.P.C. she has not said so. So this is an important contradiction and if the I.O. is not examined on this point, which is the central point on hand, this appeal will be prejudiced on the allegation itself. Learned Amicus Curiae has further submitted that fardbeyan has not been proved. Even the informant's thumb impression has also not been proved. Persons, who are witnesses to the fardbeyan, have not been examined on this point. He has further submitted that PW1 has not proved the fardbeyan and Jore Manjhi, PW5, has been declared hostile. He has further submitted that the person, who had recorded the fardbeyan, has also not been examined.
11. Learned A.P.P. appearing on behalf of the State has submitted that PW1 (Informant) is the injured witness and he is a credible and believable witness, so this witness cannot be discounted. He has further submitted that offence is regarding fire from the pistol and the injury, which took place inside the house and not for the alleged offence, which took place in public place. He has submitted that learned Amicus Curiae appearing for the appellant has tried to deviate the Court on that score. He has further stated that PW3 and PW4, who are the son and the wife of the informant are the natural witness and they were in the shop or in the house and they are the 6 best witnesses to prove what had occurred in both place. He has further submitted that informant was taken to hospital in absence of other material medical evidence. He has further submitted that whole case of the prosecution cannot simply be demolished.
12. Having gone through the arguments, records, and in the facts and circumstances, the following emerges:
It seems some money, Rs.50/ was owed by the informant to the appellant Vijay Lakra. This is no reason for him firing the pistol, but that is the circumstance. Learned counsel for the appellant has however submitted that the firing is doubtful because no pistol was seized, no seizure of any blood stained clothes, or in the case of firing burnt cloth, and there is no firearm injury report, so in the absence of such material evidences, how can one prove the firing by pistol or the injury.
He has submitted that the injury and the injury report are vital peice of evidences and in this case, no Doctor has been examined to prove any injury report, so it is indeed a question that needs to be pondered. If there is no material medical evidence and even forensic evidence regarding the gun, then one only has the assertion of the informant and his natural family to standby on the allegation. And that too over a monetary due though small, but it seems to be the genesis.
There is also no production of the Xray report that should have been there since PW4 in her deposition has mentioned about this. No admit and discharge slips from the two named hospitals have been produced.
Counsel for the appellant has said that nonexamination of the IO has seriously prejudiced him, and pointed out that PW 4 says that she had told the police that Birju Lakra had come to demand for Rs.50/ and also told the police that this appellant had fired due to which her husband had received injuries on his back and buttock. Learned counsel has said this is not so in the statement given to the police. In such a situation, it raises a doubt as to whether the story is being developed in the deposition. Counsel for the appellant has also submitted that for lack of seizure of pistol, lack of blood stained or burnt cloth and forensic reports, the nonexamination of IO would prejudice him.
It has sometimes been seen that the IO not being examined does not demolish the prosecution case. But here, a pistol is alleged to have been 7 fired and injuries resulted, so conviction or nonconviction would depend on the production of the pistol, the report whether the pistol was in working condition or not, the forensic report about the pistol and bullets, blood stained or burnt cloth, all of which could have had thrown some light upon them if the IO had been examined. So it can be said that the non examination of the IO has caused prejudice to the appellant.
13. Therefore, for the aforesaid reasons, the judgment of conviction and order of sentence dated 29.11.2002, passed by the learned 4th Additional Sessions Judge, Bermo at Tenughat in S.T. No.9 of 1996, arising out of I.E.L. P.S. Case No. 31 of 1995, is set aside, and the appellant Vijay Lakra and his bailors are discharged from their liability of bail bonds.
14. This appeal is allowed.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, The 11th July, 2016, SB/ AFR