Jharkhand High Court
Ram Kharia Son Of Late Lodo Kharia vs The State Of Jharkhand ... ... Opp. Party on 31 August, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1112 of 2014
Ram Kharia son of Late Lodo Kharia
Permanent resident of village Murkunda Patratoli, P.O. and
police station - Gumla, District - Gumla
Residents of Bar, Fasiya toli, P.O. and police station Gumla,
District-Gumla. ... ... Petitioner
Versus
The State of Jharkhand ... ... Opp. Party
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
Through Video Conferencing 09/31.08.2020
1. Heard Mr. A. K. Chaturvedy, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Bibhuti Shankar Sahay, learned counsel appearing on behalf of the opposite party-State.
3. The petitioner was convicted vide judgment and order of sentence dated 19.02.2011 passed by the learned Judicial Magistrate, 1st Class, Gumla in G.R. Case No. 500/2005 (T.R. No. 156/2011), whereby the petitioner was found guilty for offence punishable under Sections 323 and 325 of Indian Penal Code and also under Sections 3 and 4 of Prevention of Witch (Daain) Practices Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1000/- for offence under Section 323 of IPC; sentenced for two and a half years and to pay fine of Rs. 5000/- for offence under Section 325 of IPC; sentenced to undergo simple imprisonment for 2 months and 4 months for offence under Sections 3 and 4 of Prevention of Witch (Daain) Practices Act with a fine of Rs.
2500/- and Rs. 1000/- respectively. All the sentences were directed to run concurrently.
4. This criminal revision application has been filed against the judgment and order of sentence dated 30.03.2011 passed by the learned Sessions Judge, Gumla in Cri. Appeal No. 11/2011, whereby the appeal filed by the petitioner has been dismissed with some modification of sentence. As per the appellate order, the modified sentence under Section 323 of Indian Penal Code, is simple imprisonment for a period of one year with fine of Rs. 500/- and in default of payment to undergo simple imprisonment for two months; under Section 325 of Indian Penal Code to undergo simple imprisonment for two years and pay a fine of Rs. 1,000/- and in default of payment to undergo simple imprisonment for six months; under Section 3 of the Prevention of Witch (Daain) Practices Act, 1999 to undergo simple imprisonment for two months and to pay a fine of Rs. 500/- and under Section 4 of Prevention of Witch (Daain) Practices Act, 1999 to undergo simple imprisonment for a period of 4 months and to pay a fine of Rs. 500/- and in case of default in payment of fine to undergo simple imprisonment of one month each and all the sentences have been directed to run concurrently.
Arguments of the petitioner
5. The learned counsel for the petitioner has submitted that the impugned judgments passed by the learned courts below are perverse, so far as the conviction of the petitioner under Section 325 of Indian Penal Code is concerned. He submits that the maximum punishment in this case has been given under Section 325 of Indian Penal Code for two years and so far as the offence under Section 323 is concerned, the punishment has been given for one year. He also submits that the punishment under Section 3/4 of Prevention of Witch (Daain) Practices Act has already been undergone by the petitioner. He submits that 3 as recorded in the trial court's judgment, P.W.-6 is the medical witness who had examined the informant/victim and it has been recorded that all the injuries were simple in nature and caused by hard and blunt object. He submits that as the injuries are simple in nature, the petitioner could not have been convicted under Section 325 of Indian Penal Code as the condition precedent for conviction under Section 325 of IPC is that the injury should be grievous. During the course of argument, it was submitted that at best the conviction could be sustained under Section 324 of IPC and not under Section 325 of IPC. He submits that the maximum punishment under Section 325 of IPC is 7 years and the maximum punishment under Section 324 is 3 years and the petitioner has been convicted for two years under Section 325 of IPC and accordingly, if the conviction is converted to offence under Section 324 of IPC, then the sentence may also be modified.
6. The learned counsel submits that the petitioner has remained in custody for a period from 28.07.2005 to 25.10.2005 at the stage of trial and thereafter at least from 17.10.2014 to 27.02.2015 during the pendency of this revision petition and thereafter, he furnished his bail-bond before the learned court below pursuant to order dated 27.02.2015 passed by this Court only on 04.03.2015 and thus he has remained in custody for more than seven months. He submits that the sentence of the petitioner be confined to the period already undergone by him in judicial custody.
Arguments of the opposite party-State
7. The learned counsel for the opposite party-State has opposed the prayer and has submitted that the learned court below has referred to the definition of 'grievous hurt' under Section 320 of Indian Penal Code and the clause eighthly has been taken into consideration by the learned court below to hold the petitioner guilty of offence under Section 325 of IPC.
4The learned counsel submits that in view of the aforesaid, the conviction of the petitioner under Section 325 of IPC does not call for any interference. He has also submitted that in case this Court finds that the conviction is to be modified to conviction under Section 324 of IPC, then also the petitioner has been sentenced only for a period of 2 years and the maximum punishment under Section 324 of IPC is 3 years. Therefore, under any circumstances, the sentence of the petitioner may not be altered considering the nature of allegation and the manner of the offence committed in the present case. Findings of this Court
8. The learned counsel for the petitioner has advanced his arguments only with regards to conviction of the petitioner under section 325 of Indian Penal Code and has also submitted that at best the offence can be said to be under section 324 of Indian Penal Code and accordingly he has prayed that the sentence of the petitioner be modified and has also submitted that the petitioner has remained in custody in connection with the present case for more than 7 months. He has also submitted that the sentence of the petitioner be confined to the period already undergone by the petitioner in custody.
9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner was the sole accused who faced trial for assaulting the informant with axe near her jaw, back and other places of the body after identifying her as witch on 27.07.2005 at 7:30 hours. The case was instituted on the basis of the written report by the informant which was registered as Gumla P.S. Case on 27.07.2005 against the petitioner under Sections 323 and 325 of Indian Penal Code and under Sections 3/4 of Prevention of Witch (Daain) Practices Act and upon investigation, charge-sheet was submitted against the petitioner on 04.10.2005 and cognizance of offence was also taken under 5 the aforesaid sections. The charge was framed on 02.12.2005. The petitioner pleaded not guilty and claimed to be tried.
10. At the stage of evidence, the prosecution produced seven witnesses and upon closure of the prosecution evidence, the statement of the petitioner was recorded under Section 313 of Code of Criminal Procedure on 21.08.2010. The case of the defence was in total denial of the prosecution case. The petitioner did not choose to lead any defence evidence before the learned trial court.
11. The learned trial court had examined the informant/victim of the case as P.W.-1 who has fully supported the prosecution case. She has stated that while she was returning from the shop after purchasing rice, the accused, who is the tenant of Bauna Ram came with axe and called her daain (witch) and assaulted her with axe near her jaw and posterior of the arm, the witness showed scar mark about one to one and a half inch near her neck and another scar mark three to three and a half inch in her arm. She deposed that thereafter the accused fled away. She identified the written report which was in the hand-writing of her son-in-law and having her RTI. The police sent her to hospital for treatment and she identified the accused in the court and it has come that she regained her consciousness in the hospital after one day. P.W.-2 is the Gahnu Ram who is the shopkeeper from whose shop the informant was returning after purchasing rice. This witness has also fully supported the prosecution case. He has stated that after the informant went from his shop, there was lot of noise within five minutes and when he went to the place of occurrence, he saw informant drenched in blood who told him that the accused had assaulted her and in his cross-examination, it has come that he did not actually see the commission of the assault. The learned trial court found that this witness appeared 6 to be most proximate and first hand witness of the occurrence and was reliable.
P.W.-3 is the son-in-law of the informant who reached the place of occurrence on getting information about the assault to the effect that the informant was lying in injured condition and when he went there, he saw wounds near left jaw, arms, knee and back of the body. He took the informant to the hospital and he had written the First Information Report which was marked as Ext.-1. He deposed that the treatment continued for 15 to 16 days. The learned trial court found that this witness like P.W.-2 is approximate and immediate witness of the case. P.W.-4 , Surendra Oraon, is the son of the informant who had deposed that at the time of occurrence he was in the courtyard of the house and narrated the same story as the informant and he went to the place of occurrence on hearing noise and he saw the accused running away with axe having blood stains. This witness has also deposed about the injuries near jaw, left arm and knee of the victim/informant. This witness has stated that when he came to the place of occurrence, the informant was lying on the ground and told him that the accused had assaulted her and thereafter she became silent. He had stated that the axe was four inch in length and denied any prior enmity. He has stated that the place of occurrence is about 20 yards from his house. The learned trial court found this witness fully reliable and also found that there is nothing in cross- examination to dispel his evidence.
P.W.-6 is the medical witness who had examined the informant and the deposition of P.W.-6 has been recorded in para-10 of the trial court's judgment. The said para 10 is quoted as under:
"10. P.W.-6 is the medical witness who examined the informant and found the following injuries: -
i. Sharp cut on the left mandible 2" x 1/2" x 1/2"; ii. Abrasion on left prosterior thoracic bone 3" x ½";7
iii. Shar cut on left knee 3" x ¼" x 1";
All injuries are simple in nature caused by hard and blunt object. Age of injury less than six hours.
This injury report is written by this witness and on which he signed. This type of injury may be caused by "Tangi". The injury report is marked as Ext.-3. In cross-examination it has come that the name of the weapon has not been mentioned in the injury report.
According to all the witnesses the informant was injured near her jaw, left arm and left knee. These versions of injuries corroborates with the injuries mentioned in Ext. 3 injury report."
P.W.-7 did not support the prosecution case. P.W.-5 is the investigating officer of the case who has fully supported the prosecution case. He has interalia stated that during investigation, he recorded the disclosure statement of the informant and referred her to Sadar Hospital for medical treatment on seeing her bleedings and the injuries on left cheek, back and knee. He described the place of occurrence. He had recorded the statement of the witnesses and obtained the injury report.
12. The learned trial court recorded a finding that the place of occurrence was proved by the investigating officer. P.Ws. -2 and 3 reached the place of occurrence immediately upon hearing the noise of the occurrence and saw the informant in injured condition. P.W.-4 saw the petitioner running away with axe and having blood stains. All the P.Ws. -2 to 4 were told by the informant that the accused assaulted her with axe. The learned trial court found that all the three witnesses have given the same nature and the place of injury and their evidences were consistent and corroborated with each other and also with the evidence of the informant as the testimonies of all P.Ws. 1 to 8 4 on the point of injury corroborated with Ext.-3, the injury report.
13. The learned trial court also considered that the evidence was put to the accused under Section 313 of Code of Criminal Procedure, but the petitioner was in denial and no defence evidence was adduced.
14. The learned trial court recorded its finding in para-14 of the judgement as under: -
"Accordingly, on the combined reading of the testimonies of P.W. 1 to P.W. 6 it is proved that: -
(i) That the accused on the date, place and time of occurrence alleged voluntarily caused hurt to the informant inflicting the injuries mentioned above and accordingly the charge U/s 323 I.P.C. stands proved;
(ii) It is also proved that the weapon of offence was an axe and the accused voluntarily caused hurt by using it knowing that the axe is likely to cause grievous hurt. The accused gave the axe blow near the face of the informant & it was likely to disfigure her face but the informant as a result suffered severe bodily pain for a period of 15 to 16 days, as per P.W.3 of this case. The nature of weapon was a sharp cutting weapon which if used as weapons of offence is likely to endanger human life. Accordingly, the nature of hurt falls under clause "Eighthly" of section 320 I.P.C. Accordingly, the charge U/s 325 is proved.
(iii) It is also proved that the accused assaulted the informant by identifying as her witch. Thus, the accused identified the informant as witch and by assaulting her did an act towards such identification by his actions and manners.
Thus, charge U/s 3 of the Prevention of Witch (Daain) Practices Act, 1999 is proved.
9(iv) It is also proved that the accused by assaulting the informant caused both physical and mental torture by identifying her as Daain/witch as such charge U/s 4 of the Prevention of Witch (Daain) Practices Act is also proved."
15. The learned lower appellate court also considered the evidences on record and after scrutinizing all the evidences upheld the order of conviction, however modified the sentence to some extent. The learned lower appellate court has also elaborately discussed the medical evidence as well as the injury report and found that the evidences of the witnesses were consistent and corroborative to each other and upheld the conviction of the petitioner but modified the sentence to some extent as mentioned above. However, the learned lower appellate court has not discussed the ingredients of each of the sections in which the petitioner was convicted by the learned trial court.
16. The learned trial court was of the view that the offence under section 325 is made out as the weapon of offence was an axe and the accused voluntarily caused hurt by using it knowing that the axe is likely to cause grievous hurt and that the accused gave the axe blow near the face of the informant which was likely to disfigure her face and the informant as a result suffered severe bodily pain for a period of 15 to 16 days. The learned trial court was also of the view that the nature of weapon was a sharp cutting weapon, which if used as weapons of offence is likely to endanger human life and accordingly, the nature of hurt falls under clause "Eighthly" of section 320 I.P.C. and consequently held that the charge U/s 325 was proved.
17. Section 322 of Indian Penal Code defines "voluntarily causing grievous hurt". Section 322 of Indian Penal Code reads as follows: -
"322. Voluntarily causing grievous hurt. --Whoever voluntarily causes hurt, if the hurt which he intends to cause 10 or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt.
Explanation. --A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. "
Section 325 of Indian Penal Code provides for punishment for voluntarily causing grievous hurt.
The section reads as follows: -
"325. Punishment for voluntarily causing grievous hurt. --Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
18. This Court is of the considered view that in order to bring an act under Sections 322/325 of Indian Penal Code, the essential ingredients are that it should be proved that "grievous hurt" as defined under Section 320 of IPC was caused and also that the accused intended and knew himself to be likely to cause grievous hurt. Thus, to convict a person under Section 325 IPC the prosecution must prove that grievous hurt as defined under Section 320 IPC was actually caused and also that the accused intended and knew himself to be likely to cause grievous hurt and he did so voluntarily.
19. Admittedly the weapon was a sharp cutting weapon but there is no finding that the injuries caused to the informant endangered her life or disfigured her face permanently. The finding is that the nature of weapon was a sharp cutting weapon, which if used as weapons of offence is likely to endanger human life and it was likely to disfigure her face. The 11 learned trial court has relied upon clause eighthly of section 320 IPC to convict the petitioner under section 325 of IPC. Clause eighthly of section 320 provides that any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits, would fall within the category of "grievous hurt".
20. As per the injury report (exhibit-3), the opinion of the doctor was that the injury was simple in nature. It is not in dispute that tangi was the weapon used by the petitioner to assault the informant which is admittedly a dangerous weapon and is dangerous to life. It has come in the findings of the learned trial court that the informant suffered severe bodily pain for a period of 15 to 16 days. However, there is no such finding by the learned courts below that the actual injury endangered the life of the informant or that the informant suffered severe bodily pain for a period of 20 days in order to bring the injury within the clause eighthly of section 320 of IPC.
21. This Court is of the considered view that although the weapon used by the petitioner is a dangerous weapon and the petitioner intended and knew himself to be likely to cause grievous hurt and he also acted voluntarily, in spite of that, offence under Section 325 IPC is not made out as the injury actually suffered does not fall under any of the clauses of Section 320 IPC much less clause eighthly.
22. This Court is of the considered view that the learned trial court erred in law while convicting the petitioner under Section 325 IPC after holding that the hurt was a grievous hurt under Section 320 IPC without considering the nature of actual injury, merely by recording that the injury was caused by dangerous weapon and the petitioner knew himself to be likely to cause grievous hurt and was likely to disfigure her face and also likely to endanger her life. The actual injuries suffered by the informant/victim have not been considered by the trial court 12 while convicting the petitioner under Section 325 of IPC. The learned appellate court did not deliberate upon the basic ingredients of Section 325 of Indian Penal Code while upholding the judgement of the learned trial court.
23. This Court finds that Section 324 of IPC provides for punishment for offence of voluntarily causing hurt by dangerous weapons or means and the basic ingredients for offence under Section 324 IPC i.e. the petitioner voluntarily caused hurt to the informant; he did it intentionally and also with knowledge that his act would cause hurt to the informant; his act was unprovoked and the instrument used was axe which is likely to cause death, are satisfied in the present case. Offence under Section 324 IPC is a lesser offence as compared to Section 325 IPC.
24. This Court is of the considered view that conviction of the petitioner under Section 325 of IPC is perverse and cannot be sustained in the eyes of law and is accordingly set-aside and the petitioner is convicted for offence under Section 324 of IPC instead of Section 325 IPC in exercise of revisional powers of this Court.
25. Section 324 of IPC provides for punishment of maximum 3 years or with fine or both for offence of voluntarily causing hurt by dangerous weapons or means. So far as sentence under Section 324 IPC is concerned, the sentence of simple imprisonment of 2 years and fine of Rs. 1000/- which was imposed by the learned lower appellate court for offence under Section 325 IPC is hereby modified to simple imprisonment of 1 and ½ years and fine of Rs. 10,000/- for offence under Section 324 IPC and in default of payment of fine the petitioner would further serve 6 months simple imprisonment. So far as conviction and sentences under other sections are concerned, they do not call for any interference and all the sentences are directed to run concurrently. The learned court below is 13 directed to remit the fine amount to the informant of the case after due identification.
26. This revision petition is disposed of with aforesaid modification in conviction and sentence.
27. Bail bond furnished by the petitioner is hereby cancelled.
28. Pending Interlocutory Application, if any, is dismissed as not pressed.
29. The office is directed to immediately return the lower court records to the court concerned.
30. Let this judgement be communicated to the learned court below through FAX/e-mail.
(Anubha Rawat Choudhary, J.) Mukul