Jharkhand High Court
Ashish Bharti vs The State Of Jharkhand on 5 August, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 345 of 2010
(Against the judgment of conviction and the order of sentence both dated 31.03.2010,
passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj,
Palamau in Sessions Trial No. 313 of 2006)
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1. Ashish Bharti, son of Late Ramchandra Bharti
2. Nandlal Bharti, son of Late Mathura Bharti
3. Deoki Nandan Bharti, son of late Jageshwar Bharti
4. Bishwanath Bharti, son of Late Antu Bharti
5. Ashok Kumar Bharti @ Ashok Bharti, son of Duryodhan Bharti
6. Kameshwar Bharti, son of Late Ramnandan Bharti
7. Manni Bharti, son of Badrinath Bharti
8. Suresh Bharti, son of Badrinath Bharti
9. Rajeshwar Bharti, son of Late Ramnandan Bharti
10. Lalu Bharti @ Lallu Bharti, son of Late Ramchandra Bharti
11. Kedar Bharti, son of Ayodhya Bharti All resident of village-Dulahi, PO & PS-Chainpur, District-Palamau.
... ... Appellants
Versus
The State of Jharkhand ... .... Respondent
(Through V.C.)
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
For the State : Mrs. Anuradha Sahay, APP
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C.A.V. on: 16/11/2021 Pronounced on:05/08/2022
Heard Mr. A.K. Kashyap, the learned Senior counsel for the appellants and Mrs. Anuradha Sahay, the learned counsel for the State.
2. The present criminal appeal is preferred against the judgment of conviction and the order of sentence both dated 31.03.2010, passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj, Palamau in Sessions Trial No. 313 of 2006, whereby and whereunder, the appellants were convicted under Sections 148, 326/149, 323/149, 341 and 504 of the Indian Penal Code. Learned trial court compounded the offences under sections 323/149, 341 and 504 of IPC and did not impose any sentences under these sections. Appellants were sentenced for one year under Section 148 of 2 Cr. Appeal (SJ) No. 345 of 2010 the Indian Penal Code and RI for three years under Section 326/149 of the Indian Penal Code and both these sentences were directed to run concurrently.
3. The case of the prosecution, in brief, as per the fardbeyan dated 26.05.2006 of the informant PW-5 Anirudh Bharti, recorded on 23:30 hours at Sadar Hospital, Daltonganj, is that on 26.05.06 at 7:30 O'clock in the evening, the informant and others were sitting in the vacant place near the house of Jugal Bharti and in the meantime, appellant Kedar Bharti came and said to them that at the path in the west, which is used as exit by all, why they are fencing it, as it is public path. Then, Kedar Bharti became angry and called the other accused persons. Thereafter, Ashok Bharti, Mani Bharti, Ashish Bharti and Deoki Nandan Bharti all armed with tangi; Suresh Bharti, Nandlal Bharti, Rajeshwar Bharti and Kameshwar Bharti all armed with garasa and Bishwanath Bharti and Lalu Bharti armed with lathi came there and surrounded them and started assaulting them. Then, Ashok Bharti armed with tangi attacked on the head of the informant, causing injury on the informant's head. Informant further stated that in the assault PW-10 Maldeo Bharti, PW-3 Mandip Bharti, PW-1 Nayan Bharti, Surendra Bharti, PW-2 Janesh Bharti, PW- 8 Amrika Bharti, PW-11 Ujay Bharti and Basanti Devi were also injured. When Videshi Manjhi, Prem Chandra Bharti, Bibhuti Bharti and others came to save them, then Videshi Manjhi was also injured.
4. On the basis of the fardbeyan of the informant, FIR being Chainpur P.S. Case No. 71/2006 dated 27.05.2006 was registered against 11 named accused persons under sections 147, 148, 149, 323, 341, 324 and 504 of IPC. After completion of investigation charge-sheet was submitted and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed under sections 147, 148, 307/149, 326, 324, 323, 341 and 504 of IPC against the appellants and trial was held. At the conclusion of the trial appellants were convicted and sentenced as aforesaid, hence, this appeal.
5. Prosecution in order to prove its case had examined altogether eleven witnesses out of whom PW-5 Anirudh Bharti is the informant of the case and he was declared hostile; PW-1 is Nayan Bharti; PW-2 is Janesh Bharti; PW-3 is Mandeep Bharti; PW-4 is Gupteshwari Devi; PW-6 is A.S.I Bhim Mahto, who is the Investigating Officer of the case; PW-7 is Dr. Satish Kumar Singh and PW-9 is Dr. Mohan Prasad and both these doctors had 3 Cr. Appeal (SJ) No. 345 of 2010 examined the injured persons of the informant side. PW-8 was declared hostile and PW10 Maldeo Bharti and PW-11 Ujay Bharti did not support injury sustained by them.
6. PW5 Anirudh Bharti is the informant of the case and he was declared hostile. He had stated in his evidence that on 26.05.2006 at 07:30 pm, he was sitting at the doorstep of Jugal Bharti. There was verbal altercation with Ashok Bharti, Mani Bharti and others regarding road. After this altercation, he, Surendra Bharti and Janeshwar Bharti were assaulted. Informant further stated that he sustained injury on his head. The assailants were Mani Bharti, Kameshwar Bharti, Suresh Bharti, Ashok Bharti and Shashi Bharti. Informant further stated that he could not see the assailants, who had assaulted him. Informant had identified his signature on the fardbeyan which was marked as Ext.-1.
7. PW1 is Nayan Bharti. PW-1 had stated in his evidence that on the day of occurrence at 07:30 pm, he was at the door of Jugal Bharti alongwith Anirudh Bharti and Surendra Bharti. Kedar Bharti said to informant that why they were raising a wall on the road as it is a path, to which verbal altercation took place. Kedar Bharti called his people and on his call, Ashok Bharti, Mani Bharti, Deoki Bharti and others came. Ashok, Kedar, Mani and Deoki Nandan Bharti were armed with tangi, Suresh, Kameshwar, Lallu and Rajeshwar Bharti were armed with garasa and remaing others were armed with lathis. In his cross-examination, PW-1 had stated that Kedar Bharti had assaulted him with the back side of tangi. PW-1 further stated that a joint compromise was made between them and the other side and there is no dispute between them.
8. PW2 is Janesh Bharti. PW-2 in his evidence stated that on 26.05.2006 at 07:30 pm, he was at the door of Jugal Bharti alongwith Anirudh Bharti, Jugal Bharti and were discussing that Ayodhya Bharti had fenced the road due to this villagers were facing difficulty. In the meantime there was an altercation between both the parties regarding the path and on halla of Kedar Bharti, Ashok Bharti came and started assaulting Anirudh Bharti. PW-2 further stated that Suresh Bharti assaulted him with garasa on his head, due to which, he was injured. Surendra Bharti, Mandip Bharti, Nayan Bharti and Ajay Bharti were also injured. Kedar Bharti, Mani Bharti and Nandlal Bharti were carrying tangi, Suresh Bharti and Lallu Bharti were carrying garasa and Bishwanath Bharti, Deoki Bharti and Rajeshwar Bharti were having lathis. PW-2 further 4 Cr. Appeal (SJ) No. 345 of 2010 stated that Bishwanath Bharti assaulted him with lathi on his leg, due to which, he fell down. In his cross-examination, PW-2 stated that both the parties had compromised and now there is no dispute between them.
9. PW3 is Mandeep Bharti and he has stated in his evidence that Anirudh Bharti was sitting at the house of Jugal Bharti. Kedar Bharti had constructed a wall on his land, where the road was to be built. Thereafter, there was an altercation between Kedar Bharti and Anirudh Bharti and Kedar Bharti called Ashok Bharti, Mani Bharti, and Deokinandan Bharti, who were armed with tangi. In the meantime somebody assaulted Anirudh Bharti. When Maldeo Bharti, Surendra Bharti and Nayan Bharti went to rescue him, then they too were assaulted by Rajeshwar Bharti, Kameshwar Bharti, Nandlal Bharti and Lallu Bharti. Bishwanath and Lallu were carrying lathi and others were carrying garasa. PW-3 further stated that he was assaulted with tangi by Mani Bharti and Deokinandan Bharti. Basanti Devi was assaulted with lathi by Aashish Bharti. In his cross-examination, PW-3 stated that the assault took place between both the parties for about twenty minutes.
10. PW-6 is the Investigating Officer of the case. Investigating Officer had stated in his evidence that he had issued injury requisition. Investigating Officer had proved the fardbeyan to be in his handwriting and signature which was marked as Ext.-2. Investigating Officer further proved the formal FIR which was marked as Ext.-3. In his cross-examination, Investigating Officer stated that the cause of the assault between the parties was due to land dispute.
11. PW-7 is Dr. Satish Kumar Singh and PW-9 is Dr. Mohan Prasad and both these doctors had examined the injured persons.
(1). Doctor PW-7 on examination of PW-2 Janesh Bharti had found following injury on his person:
(i) Lacerated wound measuring 4" x 1'' bone deep with adjoining contusion of dimension 4'' x 3'' on the right posterior parietal scalp.
Doctor opined that injury sustained by PW-2 Janesh Bharti was caused by hard and blunt substance and was simple in nature. (2). Doctor PW-9 on examination of PW-3 Mandeep Bharti had found following injury on his person:
(i) Cut lacerated wound over right side of scalp measuring 1 ½" x ¼" x scalp deep.
Doctor opined that injury sustained by PW-3 Mandeep Bharti was caused by hard and blunt substance and was simple in nature.
5 Cr. Appeal (SJ) No. 345 of 2010 (3). Doctor PW-9 on examination of PW-1 Nayan Bharti had found following injuries on his person:
(i) Bruise over right shoulder.
(ii) Bruise and abrasion left side of fore head close to the eyebrow.
(iii) Bruise and swelling right fore-arm.
(iv) Swelling of left hand.
Doctor opined that injuries caused to PW-1 Nayan Bharti were caused by hard and blunt substance and opinion was kept pending for X-Ray report and Orthopedic opinion.
ARGUMENTS ON BEHALF OF APPELLANTS
12. Mr. A.K. Kashyap, the learned senior counsel for the appellants has, first and foremost, argued that it is to be noted that offences relates to case and counter case between two closely related parties over a piece of land and that has to be taken into consideration for any decision by this Hon'ble Court. In this case, the issue that who was the aggressor, has not been decided by the learned court below. The current case was initiated by Anirudh Bharti, who is the informant and the counter case was initiated by one Kedar Bharti.
13. Learned senior counsel has also argued that in this case PW5 Anirudh Bharti, who is the informant and also said to be an injured, is a star witness and he was declared hostile. Learned senior counsel further says informant in his fardbeyan, had alleged that he was assaulted by one Ashok Bharti by tangi on his head, but, in his deposition, informant had stated that "hamko kon mara yeh nahi dekh saka" (who assaulted me, I cannot see). Hence, the alleged injured informant did not corroborate his fardbeyan wherein he had stated that Ashok Bharti had assaulted him. Informant is the injured eye-witness but has denied, who had assaulted him. Further, in paragraph no.3, the informant had deposed that "kon aadmi kisko aur kis chiz se mara tha, bata nahi sakte" (I cannot say who had assaulted and by which thing). Therefore, the learned senior counsel says that this key witness or the informant has denied the involvement of other persons in the assault. In paragraph no.4 of his deposition, the informant has basically denied the incident or what had happened in this incident. Learned senior counsel for the appellants says that PW5 Anirudh Bharti, the informant, who is an injured witness is thus very poor witness and whether conviction can be sustained on his evidence, is very much doubtful.
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14. Learned senior counsel for the appellants has then argued that offence pertains to case and counter case and it was a case of free-fight and he also pointed out from the impugned judgment that the learned court below has, in paragraph nos. 12 and 14, had noted that it was a free-fight (swantantra roop se mar-pit hua tha). Learned senior counsel, therefore, argues that in a free-fight Section 148 cannot be made out and even the convictions cannot be done with the aid of Section 149 of the Indian Penal Code.
15. Learned senior counsel says that the Hon'ble Apex Court has held in enumerable judgments that where there is a free-fight, Section 149 cannot be made out. The learned senior counsel indicates that in the case in hand, there was no common object which is an ingredient of Section 149 of the Indian Penal Code and also argues that Section 148 of the Indian Penal Code is also not made out because nowhere it is indicated that they had conspired to get together for a meeting of mind but apparently the situation arose when Kedar Nath Bharti had a verbal altercation with Anirudh Bharti and, thereafter, persons arrived on behalf of Kedar Nath Bharti, on his call, but definitely the call was not made for coming with weapons and people to come. Learned senior counsel says that persons from both the sides were injured so it cannot be said that they were akin to a situation under Section 148 of the Indian Penal Code because there was no unlawful assembly.
16. Learned senior counsel for the appellants has then relied upon the judgment passed by the Hon'ble Apex Court in "Munir Khan v. State of Uttar Pradesh" reported in AIR 1971 SC 335 to point out that the offence under Section 149 of the Indian Penal Code is not made out. Paragraph no.4 of the said judgment reads as under:
"4. In effect the learned trial Judge accepted the defence version that it was the complainant's party which started abusing the appellant's party as a result of which a sudden fight developed in front of the second gate of the appellant's cycle stand. On the facts found by the trial Court, it follows clearly that there was a mutual fight between the parties. In that view, the trial Court was not justified in convicting any of the accused by having recourse to Section 149, I.P.C. In a mutual fight, there is no common object. But the trial Court arrived at the conclusion that the appellant was one of the persons who stabbed the deceased Anwarul Hasan. It did not give any finding as regards the nature of the injuries caused by the appellant."
17. Learned senior counsel, therefore, further submitted that the case in hand is a case of free-fight and, therefore, conviction with the aid of Section 149 of the Indian Penal Code cannot be made out rather if at all 7 Cr. Appeal (SJ) No. 345 of 2010 certain person or persons may have to be or can only be convicted for specific act under specific section. In the same line, the learned senior counsel has also relied upon the judgments in "Puran v. State of Rajasthan"
reported in AIR 1976 SC 912, and in paragraph no.4, the Hon'ble Supreme Court said as under:
"Now, two important circumstances clearly emerge from the evidence and they are based on the concurrent findings of fact recorded by the learned Additional Session Judge as well as the High Court. First, this was a case of sudden mutual fight between the parties and there could, therefore, be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on the appellant. The appellant could be convicted only for the injuries caused by him for his individual acts. "
18. Learned senior counsel further says that in the case on hand when there is no common object then it is unlikely that there was an unlawful assembly because as has been pointed out that there was initially a verbal altercation between two persons and then the others were called and then a free-fight broke out between the parties.
19. Learned senior counsel for the appellants has then argued that as far as the injuries are concerned, Surendra Bharti, who is allegedly said to be one of the injured, has not been examined. He could have been a star witness but he has not been examined and, therefore, there is no evidentiary value of the alleged injured Surendra Bharti that he had sustained simple injury and that was caused by hard and blunt substance. Therefore, these natures of injuries also need to be considered while deciding the appeal. Likewise, alleged injured Basanti Devi was also not examined by the prosecution and Maldeo Bharti and Ujay Bharti did not support their alleged injury sustained by them.
20. Learned senior counsel for the appellants has also argued that the evidence of PW1, PW2 and PW3 also cannot be relied upon because the star witness informant PW-5 Anirudh Bharti himself has, at paragraph no.6 of his evidence, said that at the time of occurrence it was night and all these three prosecution witnesses had come after the occurrence. The learned senior counsel for the appellants has, therefore, said that even if they had come at the time of the occurrence, it is unlikely that they would have known who had assaulted whom because it was the time of dark night. It is also to be noted that PW1, in his deposition, has narrated the version of events that does not support the version as given in the fardbeyan of PW5.
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21. The learned senior counsel for the appellants has then argued that at the most it is a case of offence under Section 323 of the Indian Penal Code because in the case in hand there was no common object and hence,with the aid of Section 149 of the Indian Penal Code, appellants cannot be convicted for serious offence like under Section 326 of the Indian Penal Code and under such circumstances to convict persons of such serious offences would be a failure of justice. Star witness or the informant has himself denied knowing who had assaulted whom because it was dark and does not even know who had assaulted whom with what. In such a situation, to convict everyone under Section 326 read along with Section 149 of the Indian Penal Code would be an error of justice. Once again, the learned senior counsel for the appellants said that no conviction can be made even under Section 148 of the Indian Penal Code.
22. Learned senior counsel for the appellants has also submitted that in case in hand, both the parties have settled their differences and compromised their case and this has already brought out in the evidence of various prosecution witnesses, particularly, in their cross-examination informant himself and PW-2 have deposed about compromise between the parties. Learned senior counsel for the appellants further said that it has also been held by the Hon'ble Apex Court that where the offence is not compoundable then, on the basis of compromise, old age of the case, old age of the persons and no earlier antecedents, the sentence can be reduced. Further, the fight was made over issue of path, which has been settled and, therefore, to hold the parties guilty, would be gross injustice.
ARGUMENTS ON BEHALF OF STATE
23. Mrs. Anuradha Sahay, the learned APP has, on the other hand, argued that the offences against the appellants are surely made out and they stand convicted for the offence under Sections 148 and 326/149 of the Indian Penal Code. She has argued that there was an unlawful assembly and all the appellants had common object. Learned APP has read out the First Information Report and pointed out that in such circumstances, it is clear that though altercation must have begun between both the parties, but, the associates of Kedar Bharti were just nearby and that he called them and they came armed with weapons and assaulted the informant side, therefore, the 9 Cr. Appeal (SJ) No. 345 of 2010 conviction can be sustained under Sections 148 and 326/149 of the Indian Penal Code.
24. Learned APP has also pointed out from the evidence of PW-1 Nayan Bharti and said that Kedar Bharti called his associates and they came on his calling and occurrence of assault took place. Learned APP, therefore, says that it was on the calling of Kedar Bharti they had come and they were on standby and, hence, the convictions as held under the said sections must be sustained and requires no interference by this court. The learned APP has also pointed out from the evidence of PW2 Janesh Bharti that Kedar Bharti had raised halla then the other accused persons or appellants had come, therefore, the learned APP said that the offence is fully made out.
FINDINGS
25. I have heard both the counsels and gone through the facts and circumstances of the case. In this case there are 11 appellants and these appellants were convicted under sections 148, 323/149, 326/149, 341 and 504 of IPC. Learned trial court did not impose sentences under sections 323/149, 341 and 504 of IPC as these sections were compounded and sentences were passed only under sections 148 and section 326/149 of IPC.
26. Here, it is pertinent to note that this appeal was heard along with Cr. Appeal (SJ) No. 359 of 2010, the reason being that both these appeals arose out of case and counter case between both the parties. The appeal herein arose out of Sessions Trial No. 313/2006, Chainpur P.S. Case No. 71 of 2006 dated 27.05.2006 and Cr. Appeal (SJ) No. 359 of 2010 arose out of Sessions Trial No. 06/2007, Chainpur P.S. Case No. 72 of 2006 dated 27.05.2006.
27. Both these above mentioned case and counter case were tried by the same learned Additional District and Sessions Judge, FTC-III, Daltonganj, Palamau, and the judgments were passed in both the case and counter case one after the another on same date i.e. on 31.03.2010.
28. Parties in both the case and counter case are gotias and as per the fardbeyan of both the case and counter case and evidence of the prosecution witnesses, I find that incident of assault between both the parties occurred due to land dispute and more specifically path related dispute. Total 23 accused persons were convicted by the learned trial court in both the aforesaid case and counter case. From the evidence, I find that 10 Cr. Appeal (SJ) No. 345 of 2010 free fight occurred between both the parties and total 15 persons from both sides, whose injury reports are on the record, were injured in the free fight. At para-12 of the impugned judgment, learned trial court has also noted that reason for dispute between both the parties was path related dispute and due to this there was free fight between both parties.
29. The conviction of the appellants are under sections 148 and 326/149 of IPC. Learned Senior Counsel for the appellants has relied on judgment passed by the Hon'ble Apex court in Munir Khan (supra) and Puran(supra). In Munir Khan (supra) case, there was mutual fight between the parties and hence, Apex Court held that Trial Court was not justified in convicting any of the accused by having recourse to section 149 IPC. Apex Court also held that in a mutual fight, there is no common object. Further, in case of Puran (supra), Hon'ble Apex Court at para-4 held that in case of sudden mutual fight between the parties there is no question of invoking the aid of section 149 for the purpose of imposing constructive criminal liability on the appellant. Hon'ble Apex Court further held that the appellant could be convicted only for the injuries caused by him for his individual act. On going through the impugned judgment, I find that learned court has not given any finding as to which of the party was aggressor. In the case in hand, sudden mutual fight occurred between both the parties, as has been discussed in the preceding paragraphs and in view of judgments in Munir Khan(supra) and Puran(supra) appellants herein cannot be made vicariously liable with the aid of section 149 and in that view section 148 of IPC will also not be attracted. Hence, charges against the appellants under section 148 of IPC also fails.
30.(i) Regarding conviction of the appellants under sections 326 of IPC, the ratio laid down in Puran(supra) will be followed i.e. the appellant could be convicted only for the injuries caused by him for his individual act.
(ii) I find that in this case there are 9 injured persons and their injury reports are on record. But, out of 9 injured, 6 alleged injured either were not examined by the prosecution or were examined by the prosecution, but, did not support the injury sustained by them or were declared hostile. More specifically, alleged injured PW-8 Amrika Bharti and PW-5 informant Anirudh Bharti were declared hostile; PW-10 Maldeo Bharti and PW-11 Ujay Bharti did not support the alleged injury sustained by them and other alleged injured 11 Cr. Appeal (SJ) No. 345 of 2010 Surendra Bharti and Basanti Devi were not examined by the prosecution.
(iii) Other three remaining injured witnesses PW-1 Nayan Bharti, PW- 2 Janesh Bharti and PW-3 Mandeep Bharti have deposed about assault on them and have specifically named the appellant, who assaulted them. PW-2 Janesh Bharti had deposed that appellant no.4 Bishwanath Bharti had assaulted him with lathi on his leg and appellant no.8 Suresh Bharti had assaulted him with gadasa, on his head. PW-7 Doctor had found lacerated wound measuring 4" x 1'' bone deep with adjoining contusion of dimension 4'' x 3'' on the right posterior parietal scalp on the person of PW-2 Janesh Bharti. Doctor opined that injury sustained by PW-2 Janesh Bharti was caused by hard and blunt substance and was simple in nature. Further, the other injured PW-3 Mandeep Bharti had deposed that appellant no.3 Deoki Nandan Bharti and appellant no.7 Manni Bharti had assaulted him with tangi. PW-9 Doctor had examined the injured PW-3 Mandeep Bharti and had found cut lacerated wound over right side of scalp measuring 1 ½"
x ¼" x scalp deep and Doctor opined that injury sustained by PW-3 Mandeep Bharti was caused by hard and blunt substance and was simple in nature. Other injured PW-1 Nayan Bharti had deposed in his cross-examination that appellant no. 11 Kedar Bharti assaulted him with blunt side of tangi on his arm. PW-9 Doctor had examined the injured PW-1 Nayan Bharti and had found four injuries on his person-(I )Bruise over right shoulder,(ii) Bruise and abraision left side of fore head close to the eyebrow,(iii) Bruise and swelling right fore-arm and (iv) Swelling of left hand. Doctor opined that injuries caused to PW-1 Nayan Bharti were caused by hard and blunt substance and opinion was kept pending for X-Ray report and Orthopedic opinion. So, though no opinion was given by the doctor as to nature of injury sustained by PW-1 Nayan Bharti, but in view of ocular evidence of injured PW-1 Nayan Bharti and doctors injury report, wherein doctor had noted 4 injuries on the person of PW-1 Nayan Bharti, so, it can be safely inferred that PW-1 Nayan Bharti had sustained injury in the assault and injuries if not grievous must be at least simple in nature.
31. Hence, from the foregoing discussions, I find that appellant no.3 Deoki Nandan Bharti, appellant no.4 Bishwanath Bharti, appellant no.7 Manni Bharti, appellant no.8 Suresh Bharti and appellant no. 11 Kedar Bharti had participated in the assault in which PW-1 Nayan Bharti, PW-2 Janesh Bharti and PW-3 Mandeep Bharti had sustained injury. All these three injured had sustained simple injuries, but, learned trial court had overlooked the nature of injuries sustained by the injured and had wrongly 12 Cr. Appeal (SJ) No. 345 of 2010 convicted these appellants under section 326 of IPC. So, conviction of appellant no. 3 Deoki Nandan Bharti, appellant no.4 Bishwanath Bharti, appellant no. 7 Manni Bharti and appellant no. 8 Suresh Bharti and appellant no. 11 Kedar Bharti is modified to one under section 323 of IPC.
32. So, far as conviction of the remaining appellants, appellant no.1 Ashish Bharti, appellant no.2 Nandlal Bharti, appellant no.5 Ashok Kumar Bharti, appellant no.6 Kameshwar Bharti, appellant no.9 Rajeshwar Bharti and appellant no.10 Lalu Bharti are concerned, I find that the injured witnesses more specifically PW-1, PW-2 and PW-3, who have deposed about assault on them have not named these appellants as assailants. Hence, in view of the ratio laid down in Puran (supra), these appellants cannot be made vicariously liable with aid of section 149 of IPC. Therefore, these appellants are acquitted of all the charges.
33. Hence, impugned judgment of conviction and order of sentence both dated 31.03.2010, passed by the learned Additional District & Sessions Judge, FTC-III, Daltonganj, Palamau in Sessions Trial No. 313 of 2006, so far as it relates to appellant no.1 Ashish Bharti, appellant no.2 Nandlal Bharti, appellant no.5 Ashok Kumar Bharti, appellant no.6 Kameshwar Bharti, appellant no.9 Rajeshwar Bharti and appellant no.10 Lalu Bharti, are hereby set aside and these appellants are discharged from the liability of bail bonds. So far as conviction of appellant no. 3 Deoki Nandan Bharti, appellant no.4 Bishwanath Bharti, appellant no. 7 Manni Bharti, appellant no. 8 Suresh Bharti and appellant no. 11 Kedar Bharti are concerned, there conviction is modified to one under section 323 of IPC.
34. Regarding sentence under section 323 of IPC of the appellant no.3 Deoki Nandan Bharti, appellant no.4 Bishwanath Bharti, appellant no.7 Manni Bharti and appellant no.8 Suresh Bharti and appellant no.11 Kedar Bharti, are concerned, I find that both the parties to the dispute have compromised and learned trial court had also noted about compromise between both the parties in the impugned judgment. Learned trial court had compounded the conviction of the appellants under section 323/149 of IPC and did not impose any sentence for appellants conviction under section 323/149 of IPC. Hence, at this stage also no custodial sentence is passed against these appellants for their modified conviction under section 323 of IPC and appellant no.3 Deoki Nandan Bharti, appellant no.4 Bishwanath 13 Cr. Appeal (SJ) No. 345 of 2010 Bharti, appellant no.7 Manni Bharti, appellant no.8 Suresh Bharti and appellant no.11 Kedar Bharti, are discharged from the liability of bail bonds.
35. Accordingly, this appeal is partly allowed.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated:05/08/2022 Madhav-NAFR