Jharkhand High Court
Bhunu Turi & Ors. vs State Of Jharkhand on 11 August, 2017
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
CRIMINAL APPEAL(SJ) NO. 219 OF 2003
Against the judgment of conviction dated
04.02.2003and order of sentence dated 05.02.2003 passed in Session Trial No. 309 of 1994 by Sri P.K. Shrivastava Iv th Additional Session Judge Bokaro
1. Bhunu Turi son of Late Litan Turi
2. Makun Turi son of Fekan Turi
3. Fekan Turi son of Late Prasadi Turi, All resident of Balidih, Turi Tola, P.S.-Balidih, District-Bokaro .......Appellants Vs. The State of Jharkhand ........Respondent For the Appellants : Mr. R.K. Tiwary, Advocate For the Respondent : Mr. Rakesh Kumar Mr. Pankaj Kumar, APP PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA C.A.V. On 18.11.2016 Delivered on 11/08/2017 Ratnaker Bhengra,J: The present appeal is directed against the judgment of conviction dated 04.02.2003 and order of sentence dated 05.02.2003 passed by Sri P.K. Shrivastava Ivth Additional Sessions Judge, Bokaro in Session Trial No. 309 of 1994 whereby and whereunder the learned Ivth Additional Session Judge, Bokaro convicted the appellants under section 307/34 of the Indian Penal Code and sentenced them R.I. for seven years and also a fine of Rs. 1000 each. In default of payment of fine, a further rigorous imprisonment for 6 ( six) months in addition to their substantive punishment was ordered. The fine if realized was to be paid to the informant. Period of detention undergone by the accused was to be set off against the sentence of imprisonment.
2. The prosecution case as stated by Jeevan Turi P.W. 5 in his written report to the Officer-in-Charge dated 2 09.04.1993 is that round about 1 O'clock on the same date he came to know that some persons were digging foundation near his house on the land of Manjhi people for getting possession. Because he used to look after the land, he along with his father Suchand Turi moved towards the aforesaid land. He saw that Fekan Turi, Bhunu Turi and Makun Turi were digging foundations for bordering or fencing the said land. He told them to resist from digging and his father said to them that when this land does not belong to you then why you people are trying to fence it. On this they become angry and started abusing them and Bhunu Turi caught hold of his father and said "MARO SALO KO." On that Makun Turi assaulted with tangi on his father Suchand Turi due to which there was injury on his head and blood started oozing out. Then Fekan Turi procured a sword from some where. Informant moved towards his father to save him but Fekan Turi assaulted him with sword due to which he received injuries on his right hand fingers and on his left hand wrist and blood started ozzing and to save themselves they fled away from the place of occurrence. This incident was seen by people from the neighbourhood.
3. On the basis of the written report of Jeevan Turi, Balidih P.S. Case No. 26 of 1993 dated 09.04.1993 was registered for offences under sections 341, 323, 324, 326 and 307 read with section 34 of the Indian Penal Code against the accused persons.
4. After completion of investigation, charge sheet against the accused persons were submitted for the offence under sections 341, 323, 325 , 307 and 504 read with section 34 of the Indian Penal Code. Cognizance was taken and the case was committed to the court of sessions for trial. Charge was framed under 3 section 307 read with section 34 of the Indian Penal Code and explained to each of the accused persons to which they pleaded not guilty and claimed to be tried. Trial commenced, prosecution examined altogether seven witnesses and at the conclusion of the trial, learned trial court found the accused guilty for the offence under section 307/34 of the Indian Penal Code and convicted and sentenced them to seven years R.I. and also a fine of Rs. 1000/- only each and in default of payment of fine, further R.I. for six months each. The fine, if realized, was to be paid to the informant. The period, if any undergone in detention was to be set off. Hence, this appeal.
5. P.W. 5, Jeevan Turi, who is informant and injured eye witness of the incident has deposed that on 09.04.1993 at about 1.00 p.m, he was at his house. His brother Shibu Turi ( P.W. 3) came to house returning from field and told that Fekan Turi, Makun Turi and Bhunu Turi are digging foundations in land which was in cultivating possession of informant party. He along with his father Suchand Turi and brother Shibu Turi went towards the land and forbade the accused persons from digging earth , upon this, Bhunu Turi gave exhortation saying 'MARO SAALE KO" and meanwhile, Bhunu Turi caught his father from behind and Makun Turi gave his father Tangi blow upon head inflicting head injury due to which his father fell down. Then at the same time Fekan Turi gave sword blow towards this witness and in course of warding off the blow received injury in right hand and little finger cut and fell down. Fekan Turi again attacked with sword which he warded off on left hand causing cut injury on wrist and Bhunu Turi pushed him down on the earth. He along with his father and brother any how escaped 4 and reported the matter to Balidih Police Station, and police send him and his father to Jainamore Referal Hospital for treatment, where they got treatment. In his cross examination, this witness admitted that the land in question does not belong to them, but, they are cultivating it since 17-18 years. The only suggestion to this witness on behalf of defence was given that he sustained injuries due to fall. At para 14 the Presiding Officer of Court recording the evidence of this witness mentioned that the witness shows his little finger which bears spot of cutting in middle of it and appears short in size.
6. P.W. 2 Jagat Turi, is an independent witness of the occurrence. He deposed that the date of occurrence is 4-5 years ago at about 1-1.30 p.m. Upon hearing hulla, he reached the place of occurrence and saw that Suchand Turi got head injury, and Jeevan Turi's little finger of right hand was cut and a left hand elbow was injured. On the place of occurrence, he also saw Fekan Turi, Makun Turi and Bhunu Turi. He claimed that he himself saw the incident and no one informed him about incident. Although, in his cross examination, this witness deposed that he himself did not see the occurrence of assault. Thus, he can not say by whom and by which weapon assault on Suchand and Jeevan Turi took place.
7. P.W. 3, Shibu Turi, is brother of informant has supported the case of prosecution. He deposed that on 09.04.1993 at about 12-1.00 p.m. Fekan Turi, Makun Turi and Bhunu Turi were digging foundation on government land, upon hulla, he reached there. His father forbade them, then all the accused persons started abusing him and Makun Turi gave a Tangi blow upon head of his father and Bhunu Turi caught hold of 5 his father. Father of this witness i.e. Suchand Turi got head injury and blood began to ooze. His brother Jeevan Turi attempted to rescue then Fekan Turi gave him sword blow and the little finger of his right hand was cut and fell down and he also got injury on left hand. He along with his brother ( P.W. 5) and father ( P.W. 1) came back to his house, thereafter, all went to report the matter to police station Balidih. Police sent his brother and father for treatment to Referal Hospital, Jainamore. He identified all the accused persons in dock. In his cross examination, this witness replied that place of occurrence is government land but in their possession. At para-8, he said that at first his father reached the place of occurrence, then his brother Jeevan Turi, thereafter he himself reached there. He also replied at para-9 that when he went to this place of occurrence, he saw blood was oozing from his father's head and also saw his brother's little finger was cut down. This witness has been suggested of giving false evidence and case been lodged for taking possession of land.
8. P.W. 4, Baleshwar Turi, who is not an eye witness of occurrence and brother of informant, has deposed that on the date of occurrence, he returned from his duty at evening time and his mother told him about incident, then he first went to Balidih police station. Thereafter, he went to Hospital at Jainamore there he saw his father in Hospital in an unconscious state.
9. P.W. 6, Kanilal Dusandi is a formal witness, who proved the injury report of P.W. 1 and P.W. 5 to be in handwriting and signature of Dr. A.N. Jha, Medical Officer, Referal Hospital, Jainamore, marked as Ext. 2 & 2/1 respectively.
10. P.W. 7, A.K. Sinha, is the I.O. of the case. He 6 deposed that on 09.04.1993 he was posted as S.I. in Balidih Police Station. On that day Balidih P.S. Case No. 26 of 1993 under sections 341, 323, 324, 326 & 307 / 34 of the IPC was registered by the officer-in-charge of police station. The formal FIR was filed up by constable Dayanand Jha and bears signature of then officer-in- charge Ramanand Singh. He deposed that since severe blood was oozing from the injury of injured person, so on requisition slip of officer-in-charge Ramanand Singh the injured persons were sent to Referral Hospital, Jainamore, for treatment. He further deposed that in the course of investigation, he visited the place of occurrence 'Turi Tola' and at that time, informant had returned from Hospital. He recorded re- statement of informant and inspected the place of occurrence, which was situated in village Chatani Tand ( Turi Tola), Balidih. Place of occurrence is a vacant land at distance of about 25 yard from road adjacent to the house of informant. The boundary of place of occurrence is East -Kewat Tola, west Babhan Tola, North the House of Suchand Turi and adjacent to it at west house of Bhuni Turi and in South Devi place. This witness found some spot of blood on earth and fresh ditches for construction of wall. He further deposed that in course of investigation, he recorded statement of witnesses Suchan Turi, Kishun Turi, Baleshwar Turi and Shibu Turi etc and arrested the accused persons and recorded their statement. This witness received injury report of injured Suchand Turi and Jeevan Turi from Dr. A.N. Jha which was marked as Ext-2 and 2/1. He also proved the requisition slip for treatment of injured persons signed by the then oficer-in-charge Ramanand Singh, marked as Ext- 1 & ½. This witness deposed at para-13 that on 26.4.1993 the informant of 7 this case told him that accused persons of this case and their associates threatened him of dire consequences, if case is not withdrawn by informant. Then he reported a proceedings under section 107 of the Cr.P.C. to Executive Magistrate. In his cross examination, this witness replied that he received written report on 09.04.1993 at about 16.30 p.m. He replied that on injury requisition slip two injuries were mentioned on slip of Jeevan Turi and apparently visible one injury was mentioned on slip of Suchand Turi. He replied that how much portion of little finger of Jeevan Turi was cut is not mentioned in case diary. He saw the injury report of injured where it was mentioned that it was caused by hard and blunt object. He denied the suggestion of defence that his investigation was defective and he filed charge sheet under influence of informant.
11. Learned counsel for the appellant has argued that the land over which the dispute was subsisting, does not belong to either of the party concerned. However, admittedly, the appellants' side was laying foundations on the said land and the informant party arrived there with many persons and objected to the digging of the foundations.
12. Learned counsel for the appellant further submitted that the appellants' side was disturbed only on the date of occurrence and that their are evidences that they were living there much prior to the date of occurrence. He has pointed out to the evidence of P.W.
2. In his cross examination P.W. 2 in para 3 says that the appellants had made house in government land. He has also pointed out the depositions of P.W. 1 where in at para 1, he said that the house was built by Makun Turi and hence counsel says the appellants were living 8 there from before. The informant party is the aggressor party because in the vicinity of their house the house had already been constructed and in which they were living, so if one could object it was the government and it is the government that alone can take action and not the informant or the informant's family.
13. Counsel for the appellants further submitted that the entire case rests on the crucial evidence which is the injury report of the doctor. However, this injury report was not proved by any medical doctor or the persons who had written it. Since the doctor who wrote the injury report was not examined, the injury report cannot be considered and then in the absence of injury report or it being not proved by the doctor in any way whatsoever, it cannot be used to convict the appellants and to impose punishment on them. He has referred a judgment reported in 2006(3) JLJR 254 Sanjay @ Gulabi Mahto Vs. State of Bihar ( now Jharkhand) to substantiate this point. In this regard, he has also submitted that the advocate clerk who proved the injury report was not present when this injury report was prepared by the doctor. Even if injury is made as indicated in the injury report from hard and blunt substance and no Bhala or sword or any sharp cutting weapon being used then it cannot be said that offences under sections 307 of the IPC is made out. Moreover, even if the injury report is believed, there seems to be two injury inflicted on the informant one grievous and one simple of which the grievous injury is only on the finger which is not on the vital part of the body and hence the offence under section 307 of the IPC is not made out.
14. Regarding intention, learned counsel for the appelant submitted that no where from the evidence 9 and the record it can be made out that appellants invention was there for attempt to murder for the offences under section 307 of the Indian Penal Code. They were digging the land with spade ( Kudal) and Belcha and only for construction, so it is clear that they had no intention to assault any body and it has also come in the evidence that appellant Fekan Turi got the sword from somewhere and then assaulted which would indicate that the sword was initially not there and only Belcha and Kudal was there. Counsel for the appellants had also read out the depositions of P.W. 5, P.W. 3 and P.W. 1 and pointed out the variance in the weapon carried by the appellants and manner of occurrence as indicated by the informant side and said that there is inconsistencies regarding the carrying of weapons by different appellants, so assault cannot be made out.
15. Learned counsel for the State learned A.P.P. Submitted that it has come in the injury report of informant Jeevan Turi that there were two injuries one was grievous and the other simple in nature and both caused by hard and blunt substance and grievous injury resulted in loss of right distal phalanx of little finger. He submitted that P.W. 5 deposed that he received sword blow twice by Fekan Turi. This shows the intention of the appellants that they wanted to kill the informant or the persons accompanying him, otherwise, it is not necessary to assault again and again. He further submitted that the common intention is clearly made out and this has come in the evidence of P.W. 1 that appellant Bhunu Turi exhorted and said 'MARO SALO KO" and this shows common intention. Further, counsel submitted that occurrence is over land dispute and this can not be a ground for committing 10 the offence and the appellants cannot be allowed to take the law in their hands. Hence, for these and other reasons, the conviction of the appellants passed by the learned court below be upheld and sentence imposed requires no interference.
F I ND I N G S
16. Looking into the facts, records and circumstances of the case, it is seen that there are two injured eye witnesses who are P.W. 1 and P.W. 5 i.e. Suchand Turi and informant Jeevan Turi. So these two witnesses are reliable and trustworthy witnesses and it could not be the case that they would be inflicting themselves to prove the case.
17. It has come from in the evidence of P.W. 2 Jagat Turi who is from the same village and independent witnesses who went to the place of occurrence, on alarm , means that he was a proximate witness and he deposed that he saw the injuries of both the persons P.W. 1 and P.W. 5 which would indicate that they were assaulted and his evidence would go some way in supporting in proving the injuries. He also deposed that he saw three accused persons at the place of occurrence that is appellants. There are two more witnesses P.W. 3 Sibu Turi and P.W. 4 Baleshwar Turi, who are brothers of informant. They have also supported the prosecution case and in fact P.W. 4 also went to the hospital and saw his father in unconscious state. P.W. 3 is also in eye witness and has deposed about manner of assault and role played by each appellant in assaulting P.W. 1 and P.W. 5. In the evidence of the I.O. P.W. 7 at para 2 and 4 he deposed that he obtained requisition slip from the officer-in- charge of the concerned police station, marked as Ext. 1 and Ext. ½ and then sent the injured to the Referral 11 Hospital, so it is apparent that the I.O. saw the injuries on the two persons and then sent them to the hospital. So assault and injury by the appellants is made out from the injured eye witnesses themselves, from the witnesses, who arrive on alarm immediately soon after the assault and also from the I.O. who had seen the injuries and obtained requisition from the officer-in- charge for sending the injured to the hospital for treatment. So the injuries cannot be considered to be self inflicted. The I.O. also deposed that he visited to place of occurrence and saw blood spot on the earth. Even if medical report of doctor is not considered, the weight of other evidences and circumstances proves that assault had taken place and two persons father and son were injured. The two injured eye witnesses P.W. 1 and P.W. 5 are natural , credible and reliable eye witnesses, their injuries were seen by independent witness P.W. 2 and also I.O. P.W. 7 and they were sent to Referral Hospital for treatment. P.W. 3 and 4 who are sons of the one of the injured P.Ws. have also supported the incident. P.W. 3 had seen the incident and is eye witnesses to the occurrence.
18. It has also come that there was dispute between the parties over the government land but, this in itself cannot be a reason for attacking and injuring the informant and his father.
19. Having heard both counsels, having gone through the records of the case, and in the facts and circumstances of the case and discussion made above, the judgment of conviction passed by the learned court below is proper and requires no interference. Hence, the conviction under section 307/34 of the Indian Penal Code dated 04.02.2003 is upheld. So far sentences is concerned, taking into consideration that the offence 12 is of the year 1993, and more than twenty four years have passed since then, and the appellants have passed hardships and vigours of trial, the sentence is reduced to 3 and half years, the period of custody undergone if any will be set off against the reduced sentence. Fine of Rs. 1000/- each remains, in default of which a further R.I. of six months will follow. The fine when realized shall be paid to Jeevan Turi. Further, a compensation of Rs. 3000/- each for each appellant is imposed that shall be paid to Jeevan Turi, who was injured in the assault. If compensation amount of Rs. 3000/- each is not paid to the injured Jeevan Turi, then on such default, they shall undergo another R.I. for two months. Appellants' bail bonds are cancelled
20. Appeal is accordingly, dismissed, with the aforementioned modification in sentence.
( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated 11 / 08 /2017 Sharda/NAFR