Jharkhand High Court
Rameshwar Hembram Son Of Late Khera ... vs The State Of Jharkhand ..... Opposite ... on 7 December, 2018
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.18 of 2009
(Against the judgment of conviction and order of sentence dated 17.12.2008
passed by learned Additional Sessions Judge 3rd, Jamtara (Fast Track Court)
in Sessions Case No.19 of 2006 arising out of Jamtara P.S. CaseNo.41/2005
corresponding to G.R. No.80/2005)
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1. Rameshwar Hembram son of Late Khera Hembram.
2. Alin Tudu son of Late Bhusu Tudu.
3. Nunulal Murmu son of Late Girish Murmu.
4. Hemlal Hembram son of Late Ganesh Hembram, All resident of village Kanchanbera, P.S. + District Jamtara.
...... Appellants
Versus
The State of Jharkhand ..... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. N.P. Choudhary, Advocate
For the State : Mr. Ravi Prakash, A.P.P.
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By Court:
1. This Appeal is against the judgment of conviction and order of sentence dated 17.12.2008 passed by learned Additional Sessions Judge 3rd, Jamtara (Fast Track Court) in Sessions Case No.19 of 2006 arising out of Jamtara P.S. CaseNo.41/2005 corresponding to G.R. No.80/2005, whereby and whereunder the appellants have been convicted for the offence under Section 341 of Indian Penal Code and thereby sentenced to undergo simple imprisonment for a period of one month and for the offence under Section 324/34 of the Indian Penal Code, sentenced to undergo rigorous imprisonment for a period of three years, and all these sentences were ordered to run concurrently.
2. Before appreciating the arguments advanced on behalf of the appellants as also the findings recorded by the learned Trial Court while convicting the appellants, it would be relevant to discuss the factual aspect.
3. In the instant case arising out of an F.I.R. instituted by one Upendra 2 Marandi - P.W.-6 - the informant, has stated that while returning from village Pakdih along with his brother Malindo Marandi at about 5.30 p.m. (evening) on 23.02.2005 by a bicycle, Rameshwar Hembram, Nunulal Murmu, Hemlal and Alin Tudu (appellants) have obstructed them near the area known as Kanchanbera and thereafter started assaulting them. It has been stated that Rameshwar Hembram had snatched away the bicycle and Nunulal had assaulted upon his head by an axe resulting into injury in his forehead, which resulted into bleeding. Rameshwar Hembram, who was with one iron rod had also started assaulting him due to which the injury had been caused in the back of the informant, Nunulal has again assaulted from the axe upon the head of the informant and thereafter Nunulal Hembram had assaulted his brother Malindo Marandi on his head resulting into bleeding, upon this, he raised noise. It has been stated that due to the injury caused upon the body of the informant and also on the brother, they fell down and after hearing hulla, the local villagers came and thereafter all the appellants fled away by taking the bicycle of the informant. It has been stated that there is a case going on with respect to land dispute and due to that reason only, in order to kill them, the assault has been inflicted upon them, hence, an F.I.R. has been instituted which was registered for the offences under Sections 341, 323, 324, 307, 379/34 of the Indian Penal Code.
4. The police thereafter had started investigation and submitted the charge-
sheet upon the appellants for the offences under Sections 341, 323, 324, 307, 379/34 of the Indian Penal Code and the case on being heard before the Court of Sessions, the charges have been framed against the appellants for the offences under Sections 307/34, 341/34, 329/34 of Indian Penal Code, and accordingly, the appellants have been subjected to trial to prove their innocence.
5. The prosecution has examined altogether 10 witnesses namely, Sunita Murmu as P.W.-1, Sanatan Marandi as P.W.-2, Mohedi Marandi as P.W.-3, Lakhindar Marandi as P.W.-4, Malindo Marandi as P.W.-5, Upendra Marandi as P.W.-6 Sahabuddin Ansari as P.W.-7, Dr. Rampreet Singh as P.W.-8, Srijal Marandi as P.W.-9 and Madadeo Marandi as P.W.-10. The defence has also examined his witnesses.
36. The trial Court on the basis of the depositions of the prosecution witnesses, the documents placed before it, which includes the injury report also, has convicted the appellants for the offence under Section 324/34 of the Indian Penal Code, while acquitted them for the offences under Sections 329, 324/34 of the Indian Penal Code.
7. The instant appeal is against the aforesaid judgment of conviction and sentence for the commission of offence under Section 324/34 of the Indian Penal Code.
8. Learned counsel appearing for the appellants while assailing the aforesaid judgment has submitted that the judgment of conviction for the offence under Section 324/34 of Indian Penal Code is not sustainable, it is for the reason that there is material contradictions in the depositions of the witnesses, more particularly, in the depositions of P.W.-5 and P.W.-6. It has been submitted that P.W.-6 is the informant while P.W.-5 is the brother of the informant, who was accompanying the P.W.-6 and also got injured due to the assault given by the appellants. He has pointed out that P.W.-5 and P.W.-6 while deposing before the trial Court have given contradictory version and hence, the trial Court ought to have taken into consideration these contradictions but it has not been taken into consideration rather the order of conviction has been passed. According to him, when P.W.-5 and P.W.-6 were on the place of occurrence, there should be infirmity in their stand but there is contradictions to the effect that P.W.-6-the informant has deposed in his deposition that he has been assaulted along with P.W.-5 from the hard blunt substance. It has been stated that he sustained injuries on his head and back given through a lathi by Rameshwar Hembram and also assaulted Malindo Marandi- P.W.-5. They have been assaulted by a rod resulting into bleeding from their head while according to him, the P.W.-5 has stated in his deposition that there is injury in the head and eyes of the P.W.-6. He further states that there were two injuries, the cloth which they wore at that time, was stained with blood which have been handed over to the concerned police personnel but the said clothes have not been produced before the Court but such statement has not been made by the P.W.-6, and therefore, there is material contradictions in the statements given by P.W.-5 and P.W.-6. He further submits that P.W.-4 namely, Lakhindar Marandi in his deposition has stated 4 that P.W.-5 and P.W.-6 were senseless for two days but this aspect of the matter has not been narrated by P.W.-5 and P.W.-6 in their depositions, and if the statement of P.W.-4 will be taken into consideration, there is no question of registration of an F.I.R. on the following day i.e., from the date of occurrence, and as such, the Trial Court ought to have been taken into consideration this aspect of the matter. It has further been submitted that the P.W.-1 namely, Sunita Murmu, although has supported the occurrence, but in her cross-examination, she stated that Rameshwar Hembram, appellant No.1 is gharjamayi of that village and while controverting the question of prosecution to the effect that the case has been instituted for the reason that the appellant No.1 is to leave the village, this aspect of the matter has been denied by her. He further submits that even P.W.-1 has submitted that clothes which were worn by P.W.-5 and P.W.-6 were stained with blood but no blood stained clothes have been brought on record and therefore the statement of P.W.-1 also is not in conformity with the statement of P.W.-5 and P.W.-6.
9. It has been stated by the learned counsel for the appellants that the appellants have falsely been implicated in the instant case, it is for the reason that there is some land dispute going on and for that, appellant No.1 has instituted a criminal case against the informant and in counter blast to that, the instant criminal case has been instituted, and as such, it is a case of false implication due to the aforesaid land dispute. He further submits that even the statement of investigating officer has not been taken into consideration since the I.O. has also not taken care of for examination of the blood stained clothes which have been handed over to the concerned police personnel as per the statement made by P.W.-5 in his deposition and although the case of conviction is under Section 324 of Indian Penal Code, the foremost ingredient of Section 324 is that the question of injury, and when P.W.-5 has handed over the clothes, the investigating officer ought to have forwarded the aforesaid clothes for its expert examination to ascertain the genuineness of occurrence. On these grounds, it has been submitted that the trial Court, since has not considered this aspect of the matter, the judgment of conviction as also the order of sentence are not sustainable in the eye of law, accordingly the same may be set aside.
510. Mr. Ravi Prakash, learned Additional Public Prosecutor, appearing for the State of Jharkhand, has vehemently opposed the ground and submission raised by learned counsel for the appellants. He has submitted that although an F.I.R. has been instituted for the offences under Sections 341, 323, 324, 307 and 379/34 of the Indian Penal Code and the charge-sheet has been submitted against the appellants, the charge has been framed for the offences under Sections 307/34, 341/34 and 379/34 of the Indian Penal Code but the trial Court on appreciation of depositions of witnesses and the injury report and on going through the ingredients of Section 307 has come to a finding that no ingredient of Section 307 is available and therefore by exercising the power conferred under Section 222 of Code of Criminal Procedure, has convicted the appellants for the offence under Section 324 of Indian Penal Code, it is for the reason that the ingredients of Section 307 i.e., intention to kill, has not been found to be available after appreciating the submission of witnesses in the course of trial, but however, according to the view of the Trial Court, there is injury caused by hard blunt substance and nature of the same is simple, and therefore, convicted the appellants under the provisions of Section 324 of Indian Penal Code, which has been assailed in the instant appeal. He submits that the judgment of conviction and sentence needs no interference by this Court in exercise of appellate jurisdiction, it is for the reason that the trial Court while appreciating the ingredients of Section 324 of Indian Penal Code by going through the deposition of P.W.-6-the informant and P.W.-5, the injured witnesses and also on going through the statement of P.W.-8 - Dr. Rampreet Singh, who on medical examination of P.W.-5 and P.W.-6, has corroborated the injury by giving its opinion that the injury is simple in nature but is caused by hard blunt substance, and therefore, the conviction ordered under Section 324 of Indina Penal Code cannot be said to be improper. He further has submitted that since the material with respect to the land dispute is there and appellant No.1 at the time of occurrence was about 60 years of age and the question of land dispute cannot be disputed, since a complaint has already been instituted by the appellants upon the informant and further the appellants, since are living in the tribal area and happens to be rustic people and the occurrence had taken place due to land dispute and further they have also remained in custody for about one and a half months, therefore, this Court can take appropriate decision so far as the sentence is concerned.
611. Heard learned counsel for the parties and after appreciating their arguments, this Court thinks it appropriate to discuss the contention raised by the appellants as also the learned Additional Public Prosecutor and has examined the same by going across the material available on record i.e., the depositions of witnesses and the exhibits brought on record before the trial Court.
12. The prosecution has examined altogether 10 witnesses. This Court thinks it proper to first discuss the deposition of Upendra Marandi- P.W.-6-the informant and the victim of the occurrence.
13. It is evident from the statement made by P.W.-6-Upendra Marandi and going across the same that he has fully corroborated the stand taken by him in the F.I.R., since he has stated that he has been assaulted by the appellants who were armed with hard blunt substance i.e., Rameshwar Hembram was armed with rod, Nunulal Murmu was armed with axe, Hemlal Hembram was armed with lathi and Alin Tudu was armed with lathi. It has further been stated that due to assault given by the appellants, bleeding was there and thereafter he was hospitalized, where he was treated and while he was in hospital, his statement was recorded by the concerned police personnel. It if further evident that he has also identified all the appellants who were present in the Court on the date of his examination. It is further evident that in the cross-examination, he has not retracted back from his statement which he has made in the examination-in-chief. He, however, has stated that the blood stained cloth have been thrown away by him which has handed over to the concerned police personnel.
14. This Court after examination of the deposition made by P.W.-5 has found that the appellants were armed with hard blunt substance and he has also reiterated as has been reiterated by P.W.-6 that appellant No.3-Nunulal Murmu who was armed with axe has given blow from axe on his forehead and he was assaulted and therefore by appellant No.1-Rameshwar Hembram, his bicycle was snatched away.
It is evident from the cross-examination that there was a sign of assault near the head and eyes upon the body of P.W.-6-Upendra 7 Marandi and he has also been assaulted. He stated that the blood stained cloth has been handed over by him to the concerned police personnel but the same cloth has not been produced before the Court.
15. This Court has also gone across the statement made by P.W.-4, who has stated that at about 7:00 p.m. while he was in his house, after hearing the noise, he came at the place of occurrence and has found that Rameshwar Hembram was with rod, Nunulal Murmu with axe, Hemlal Hembram and Alin Tudu with danda and due to the assault given through these substances, the P.W.-5 and P.W.-6 had become senseless and thereafter he has given information to the concerned police station that only Sunil, Sunita, Sanatan and others have come.
16. In the cross-examination, P.W.-1 namely, Sunita Murmu has not retracted back from the statement made in the examination-in-chief. P.W.-1 namely, Sunita Murmu has submitted that there was scuffle in the colony, her house and Rameshwar's house were adjacent and after hearing the hulla, she came out and saw that the appellants were assaulting P.W.-5 and P.W.-
6. Rameshwar Hembram was armed with rod, Nunulal Murmu was armed with axe, Hemlal Hembram and Alin Tudu were armed with lathis.
17. P.W.-2-Sanatan Marandi has been declared as hostile. P.W.-3-Mohendi Marandi has supported the occurrence.
18. P.W.-7-Sahabuddin Ansari, who is the investigating officer and has proved the fardbeyan, which is marked as Exhibit-2 and has also corroborated that he has taken statement of witnesses and then has submitted charge- sheet for the offences under Section 341, 324, 307, 379/34 of the Indian Penal Code.
19. P.W.-8 namely, Dr. Rampreet Singh who has examined P.W.-6-Upendra Marandi and has found the following injuries:-
(i) A lacerated wound above right eye brow 1" x ½" x skin deep.
(ii) A lacerated wound at left occipital region of head ¾" x ¼" x skin deep
(iii) Bruise on back.
(iv) Mid right 2" x ½" mid left 2" x ½" back of right shoulder.8
20. P.W.-9-Srijal Marandi has been declared as hostile.
21. This Court after discussing the statement of witnesses, more particularly the statement of P.W.-5 (brother of the informant), P.W.-6-the informant, P.W.-1-namely, Sunita Murmu, who is living just adjacent to the house of appellant No.1-Rameshwar Hembram and P.W.-4 and has found that the occurrence has been supported by these witnesses. Although, there is minor contradictions in between the statement of P.W.-5 and P.W.-6 but the assault is not in dispute rather it is being corroborated from the deposition of P.W.-8, who is the doctor, who, on their examination has found that P.W.-5 and P.W.-6 have sustained injury by hard blunt substance, but the nature of injury is found to be simple. Although the F.I.R. has been instituted for the offences under Sections 341, 323, 324, 307, 379/34 of the Indian Penal Code but the trial Court after appreciating the ingredients of the aforesaid sections, more particularly, Section 307, has found that there is no intention to kill, hence, the trial Court by exercising power conferred under Section 222 of the Code of Criminal Procedure has convicted the appellants for the offence under Section 324 taking into consideration that there was lack of ingredients of Section 307.
22. Now the question is to be seen as to whether on the basis of material available on record before the trial Court basis upon which the order of conviction has been passed for the offence under Section 324, is there any ingredients of Section 324 or not, and for which the provision of Section 324 of Indian Penal Code needs to be referred. It is evident from the aforesaid penal provision which stipulates that there should be voluntarily causing hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death. It is evident that the Court while convicting the offenders for the offence under Section 324 requires to see that there is intention of voluntarily causing hurt by means of any instrument for shooting, stabbing or cutting, which is likely to cause death or by means of fire or any heated substance, or by means of any poison or any corrosive substance, etc.
23. Here, in the instant case, it is not in dispute that the appellants were with rod, axe and lathis and therefore these instruments are sufficient to cause 9 death and as such on this ground, the ingredient of Section 324 of Indian Penal Code cannot be said to be absent in the instant case for the reason that all the witnesses have stated in their depositions uniformly that they were with iron rod, axe and lathis.
Further question would be that as to whether the trial Court while convicting the appellants for the offence under Section 324 of Indian Penal Code has considered the other aspects i.e., hurt/injury.
24. This Court after going through the deposition made by P.W.-8, Dr. Rampreet Singh, who in his deposition has corroborated the hurt/injury on medical examination of P.W.-5 and P.W.-6, however, is of the opinion that the injury was simple in nature and thus, the doctor, since has corroborated the hurt/injury upon P.W.-5 and P.W.-6 given by hard blunt substance which includes the axe, rod and lathis and therefore it cannot be considered in negative that there was no injury which is likely to cause death. However, herein, the injury since was simple in nature and therefore, the ingredient of Section 324 is well attracted.
25. This Court after having discussed the depositions of witnesses and on taking into consideration the contents of the F.I.R. which has been exhibited, the injury report prepared by the P.W.-8 and the infirmity in the statement given by the P.W.-1, P.W.-4, P.W.-5 and P.W.-6 is of the view that the ground which has been taken by the learned counsel for the appellants that there are contradictions in the depositions of P.W.-5 and P.W.-6, which according to the considered view of this Court, cannot be said to be a major contradiction so that the entire prosecution may be vitiated. It is relevant to state here that the contradiction which has been pointed out by the learned counsel for the appellants only relates to submission of the blood stained cloth to the police that has not been produced and further the deposition of P.W.-4 discloses that P.W.-5 and P.W.-6 were senseless for two days but these contradictions cannot revert back the ingredient of Section 324 for the reason that the assault is there as per the injury report given by the doctor, place of occurrence has been confirmed by the investigating agency as also the appellants have been found to be with hard blunt substance, hence the contention raised by learned counsel for the appellants is not so vital that the entire 10 prosecution will be vitiated and therefore the aforesaid contention is not acceptable to this Court.
26. In view of such reasoning, according to the considered view of this Court the order of conviction ordered by the trial Court vide judgment of conviction dated 17.12.2008 passed by learned Additional Sessions Judge 3rd, Jamtara (Fast Track Court), needs no interference.
27. Now the question of interference with the sentence, since the arguments have been advanced by the learned counsel for the appellants that the appellants are tribal people living in remote area of the State of Jharkhand and are totally dependent upon farming. Appellant No.1 is said to have been a Gharjamayi of that village and the local residents in one way or the other, want to disturb him by not allowing him to plough the field so that he may leave the village for which a criminal case has also been instituted by him. It has been further submitted that the appellants, after the order of conviction remained in custody for a period of one and a half months, therefore the submission has been made that the period may be reduced to the period undergone with an order of compensation to be given in favour of the victims by the appellants. Otherwise, the appellants being tribal people and appellant No.1, more particularly, is now aged about 70 years, since on the date of judgment of conviction, was about 60 years of age and hence taking into consideration the date of judgment which was delivered on 17.12.2008, the appellant No.1 is now aged about 72 years, and hence, it would be very harsh for him to complete the period of sentence.
28. Mr. Ravi Prakash, learned A.P.P. has not opposed the submission rather he has fairly submitted that an appropriate order may be passed by this Court in this regard.
29. This Court, having heard learned counsel for the parties and taking into consideration the fact that the appellants as also the informant are local residents of the area and are totally dependent upon farming. They are tribal people living in remote area in the State of Jharkhand. The appellant No.1 has taken the plea in the deposition that he has not been allowed to plough the field and therefore he has also instituted a complaint case against the appellants and this aspect of the matter has not been disputed 11 rather the document has been taken on record by the learned trial Court with respect to the complaint case being Exhibit No. A, B and C as referred in paragraph No.17 and 18 of the judgment.
30. This Court has also considered the fact that as the appellants, namely, appellant No.1-Rameshwar Hembram has already remained in custody for a period of one month and 3 days, appellant No.2 - Alin Tudu for a period of one month and 15 days, appellant No.3 - Nunulal Murmu for a period of three months approx., and appellant No.4 - Hemlal Hembram for a period of one month and 15 days and therefore this Court thinks it proper to modify the order of sentence taking into consideration the fact that maximum punishment imposed under Section 324 is imprisonment of either description for a term which may extend to 3 years or with fine or with both. Since there is a case and counter case and all the persons are rustic people living in remote area and also considering that the appellants have remained in custody for a period indicated hereinabove, then it would be proper to modify the order of sentence with a direction upon the appellants to compensate the victims by making payment of Rs.25,000/- in entirety in favour of P.W.-5-Malindo Marandi and P.W.-6- Upendra Marandi. In view thereof, without interfering with the order or conviction, the order of sentence is modified to the extent that the appellants are directed to pay an amount of Rs.25,000/- in favour of P.W.- 5-Malindo Marandi and P.W.-6-Upendra Marandi within a period of 3 months from the date of communication of this order to the trial Court and the trial Court is directed to ensure compliance of this order.
31. It is made clear that failure in compliance of the aforesaid direction, the sentence already awarded by the trial Court will automatically be operative.
32. The instant appeal is accordingly disposed of with the above direction and observation.
(Sujit Narayan Prasad, J.) High Court of Jharkhand at Ranchi The 07th day of December, 2018 Saurabh/NAFR