Jharkhand High Court
Birbal Yadav vs The State Of Jharkhand on 6 April, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 1209 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1209 of 2004
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(Against the judgment of conviction dated 13.07.2004 and order of sentence dated 15.07.2004 passed by the learned Sessions Judge, Koderma in Sessions Trial No. 21 of 2001 corresponding to Markacho P.S. Case No. 8 of 2000 , G.R. Case No. 70 of 2000 at Koderma, Jharkhand.)
1. Birbal Yadav
2. Ramdhani Yadav ... ... Appellants Versus The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Sanjay Kr. Pandey, Advocate For the Respondent : Mrs. Vandana Bharti., A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 07: Dated: 06th April, 2022
1. This appeal is directed against the judgment of conviction dated 13.07.2004 and order of sentence dated 15.07.2004 passed by the learned Sessions Judge, Koderma in Sessions Trial No. 21 of 2001 corresponding to Markacho P.S. Case No. 8 of 2000 , G.R. Case No. 70 of 2000 whereby the appellant no. 1 Birbal Yadav has been held guilty for the offence punishable u/s 353, 224 and 333 of IPC whereas the appellant no 2 - Ramdhani Yadav has been held guilty for the offence punishable under section 353, 225 and 333 of IPC and appellant Birbal Yadav was sentenced to undergo R.I. for 2 years for the offence punishable u/s 353 and R.I. for 2 years u/s 224 of IPC and R.I. for 7 years for the offence punishable u/s 333 of IPC and convict Ramdhani Yadav was sentenced to undergo RI for two years for the offence punishable under section 353 IPC, RI for two years for the offence punishable under section 225 of IPC and RI for seven years for the offence punishable under section 333 of IPC. It was directed by the learned court below that all the sentences of each 2 Cr. Appeal (SJ) No. 1209 of 2004 convicts shall run concurrently.
2. Briefly stating the prosecution case arose in the wake of written report of Girija Nand Jha, A.S.I., of police of Markacho Police Station which is as under:
Informant Girija Nand Jha, A.S.I. along with armed police force had gone on 24.01.2000 for investigation of Markacho P.S. Case No. 05/2000 under sections 341/332/379/353/224 of IPC and 33/41/42 of Indian Forest Act. During investigation he learnt that accused Birbal Yadav of village Bachhedih, P.S. Markacho, district Koderma may be available in his shoe shop situated at village Nawalsahi, P.S. Markacho, District Koderma. Thereafter, they went to the shoe shop of the accused Birbal Yadav at village Nawalsahi. His shoe shop was located in a Gumati. Thereafter, they arrested the accused Birabl Yadav but he resisted the police party. It is further alleged that it was a market day. Hence, several persons assembled there and they also resisted the police party. Thereafter, on the call of Birbal Yadav accused Ramdhani Yadav came from the crowd and protested the arrest of Birbal Yadav and got him released from police custody. Other persons present in the crowd also assisted him in releasing Birbal Yadav from the police custody forcibly. Accused Ramdhani Yadav and others persons present there unlawfully, got Birbal Yadav set free from the police custody and took him away with them.
On the basis of the said written report of the informant cum I.O. of this case a formal FIR was drawn vide Markacho P.S. Case No. 08 of 2000 registered u/s 353/224/225 of IPC and later on the offence punishable u/s 333 of IPC was added on 31.01.2000. The investigation of the case commenced and after investigation of the case charge sheet was submitted and concerned court below after taking the cognizance committed the case to the Court of Sessions and the learned sessions Judge framed the charge on 10.10.2002 and
3 Cr. Appeal (SJ) No. 1209 of 2004 after conclusion of the trial passed the impugned judgment of conviction and order of sentence which is under challenge.
3. Heard Mr. Sanjay Kr. Pandey, learned counsel for the appellants and Mrs. Vandana Bharti, learned A.P.P. for the State.
Arguments on behalf of the learned counsel for the appellants
4. Assailing the impugned judgment of conviction and order of sentence learned counsel appearing for the appellants submitted that the learned trial court has committed gross error in appreciation of evidences available on record and passed the impugned judgment of conviction and order of sentence, which is illegal and immaterial. It has been pointed out that the injured Gopal Singh was present at the time of the alleged offence and injuries caused to him in his presence as per the prosecution story, but, in spite of this fact the case was instituted u/s 353, 224 and 325 of IPC and no offence punishable u/s 333 of IPC was added at the first instance. Rather it was subsequently added falsely in a concocted manner in order to make gravity of the offence. Further, it has been pointed out that in such a matter there is an allegation upon the police official and for the ends of justice the informant should not be the I.O. in order to ascertain the impartial investigation of this case. But, in the present case the informant himself become the I.O. and after investigation of the case, the charge sheet has been submitted by another person P.W. 8. Further, it has been pointed out that the FIR was instituted on 24.01.2000 at about 5.30 pm, but, it has been forwarded to the court of Magistrate on 28.01.2000 after the lapse of about four days for the reasons best known to the prosecution. It has further been submitted on behalf of the appellant that the alleged injured person P.W. 2 Gopal Singh was not examined in the hospital situated under Markacho Police Station, but, he was examined 12 km away from Koderma in a private clinic with an ulterior motive to fabricate the 4 Cr. Appeal (SJ) No. 1209 of 2004 injury report for the purpose of falsely implicating the appellants. But, the learned trial court did not take into consideration all these facts and evidences available on record. Further, it has also been contended that no independent witness has been examined in this case and only on the basis of interested witnesses, the learned trial court has passed the impugned judgment of conviction and order of sentence. Further, the genesis of the occurrence is the Markacho P.S. Case No. 5 of 2000 in which the police party had gone for the investigation when the alleged occurrence took place, but, nothing has been brought on record to substantiate the said Markacho P.S. Case No. 05 of 2000 in order to corroborate the case of the prosecution and, hence, the learned trial court has committed gross error in appreciating the evidence adduced on behalf of the prosecution in totality and as such the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside.
Arguments on behalf of the learned A.P.P.
5. On the other hand, the learned A.P.P. for the State vehemently opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly appreciated the injury report which has duly been proved by the Doctor P.W.1, Hari Darshan Singh and the I.O. of this case, who has also been examined as P.W. 7 along with other eye witnesses including P.W. 2, P.W. 3, P.W. 4 and P.W. 5 who have fully supported the case of the prosecution and, therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit.
Appraisal & Findings
6. Having heard the parties, perused the records of this case including the LCR.
5 Cr. Appeal (SJ) No. 1209 of 2004
7. The case of the prosecution is that the police of Markacho police station in the district of Koderma had gone to investigate the case vide Markacho P.S. Case No. 5/2000 dated 20.01.2000 registered u/s 341, 332, 379, 353, 224 of IPC and 33, 41, 42 of the Indian Forest Act. During the course of the investigation, they were searching the accused of the said case namely Birbal Yadav the appellant no. 1 and when the police party came to know that the accused was available in his shoe-shop, they reached there to arrest him then the arrest was resisted by the said Birbal Yadav and the villagers including the appellant no. 2 Ram Dahni Yadav unlawfully and illegally rescued him from the custody of the police party and, hence, the present case was instituted initially for the offence punishable u/s 353, 224 and 225 of IPC and later on section 333 of IPC was added.
8. In order to substantiate the case of the prosecution, altogether eight witnesses have been examined in this case. P.W. 1 Dr. Hari Darshan Singh, (who had medically examined the victim P.W. 2), P.W. 2 Gopal Singh (constable, member of the investing team and victim), P.W. 3- Rajendra Rajak (constable, member of the investigating team), P.W. 4- Laxman Thakur (constable, member of the investing team), P.W. 5 Mahendra Prasad (constable, member of the investigating team), P.W. 6- Patilal Murmu (constable, member of the investigating team), P.W. 7 Girija Nand Jha (the informant cum I.O.), and P.W. 8 Ram Suresh Singh (who simply submitted the charge sheet), whereas the investigation was conducted by P.W. 7. It is manifest from the FIR that no where it is whispered in the self- written report of informant cum I.O. P.W. 7 that anyone of the members of the investigating team was assaulted or injured. Neither P.W. 2 Gopal Singh was alleged to have been injured nor his name appearing in the FIR nor it was alleged that he has been assaulted by any of the accused or another person by which he had sustained the 6 Cr. Appeal (SJ) No. 1209 of 2004 injuries. But, it has been contended on behalf of appellants that later on, section 333 of IPC has been added and P.W. 1 the doctor, a private doctor has been examined to corroborate with the later on maliciously developed subsequent event of causing injury to P.W. 2 Gopal Singh when there is no trace of such allegation in the FIR and this contentions find force as evident from the testimonies of Prosecution Witnesses.
9. P.W. 1- Hari Darshan Singh is said to be a doctor who stated that he had examined Gopal Singh, constable who was brought by the police and on examining P.W. 2 Gopal Singh he had found the following injuries on his person :
i. Swelling and deformity of right hand's little finger.
There was dislocation of inter phalangeal joint clinically.
ii. Swelling and abrasion over right shoulder joint 1"x1/9"x1/6".
P.W. 1 has opined that the age of injury was within six hours and injury no. i was grievous and injury no. ii was simple and both the injuries were caused by hard and blunt substance. He had proved the injury report which is said to have been prepared by him which has been marked as Ext. 1. In the cross examination this witness doctor witness P.W. 1 categorically stated that dislocation was found clinically and he was not advised for X-ray. On the point of injury from the perusal of the Ext. 1 it is found that the said Gopal Singh has been examined by a doctor of private Clinic namely Dr. Hari Darshan Singh and without X-ray he has come to the finding that dislocation was there and that too after correcting the dislocation clinically he was discharged on the same day which is not believable and not corroborated and falsified by the version of the injured P.W. 2 Gopal Singh who stated in his deposition that his ankle was fractured and, therefore, gross inconsistencies are found 7 Cr. Appeal (SJ) No. 1209 of 2004 in the injury report and the version of the injured P.W. 2 Gopal Singh and in absence of any X-ray report this cannot be proved and substantiated as to the whether the Gopal Singh was injured or not.
Further, it has been found that the injury said to have been inflicted upon Gopal Singh (P.W.2 who is the victim) becomes doubtful when the P.W. 7 Girija Nand Jha, (the I.O. cum informant of this case) has categorically stated in para 11 that the injury of the injured person has not been mentioned in the entire case diary. It has also been admitted in para 12 of the I.O., that at the time of the recording of the written report (FIR) the said Gopal Singh was present with him, but, it was not mentioned as to whether his ankle was fractured or not and, therefore, subsequently the injury has been brought on the evidence is not substantiated and corroborated convincingly in a reliable manner by the prosecution for want of mentioning in the entire case diary as disclosed by the I.O. P.W. 7 as to whether the injured Gopal Singh was referred to the doctor or not, whether he has sustained injuries or not or whether he has referred to the doctor or not or whether the injury report has been collected or not, weaken the case of prosecution. Further, the case of the prosecution also gets unsubstantiated so far as the injury is concerned, from the perusal of injury report Ext.1 it appears that the injury report has been brought to court of magistrate on 31.01.2000 after the lapse of 7 days, from the date he was medically examined and found injured and this speaks a volume against the case of the prosecution so far as the injury inflicted upon P.W. 2 is concerned, and therefore, the learned trial court has failed to appreciate the evidences on record and wrongly held that Gopal Singh was injured in order to constitute the offence punishable u/s 333 of IPC.
10. P.W. 7 Girija Nand Jha who is the I.O. cum informant of this case stated that when he was along with other police personnel had gone to village Bachhedih for the investigation of Markacho P.S. 8 Cr. Appeal (SJ) No. 1209 of 2004 5/2000 then he learnt that that the accused was in shop of Nawalshahi Bazar and, therefore, they went to arrest the accused- appellant Birbal Yadav and thereafter, the accused raised hulla and other persons assembled there and the said accused appellant Ramdhani Yadav came there and resisted the police party and set him free. Although, this witness stated that constable Gopal Singh had sustained injury because of their assault, but, it has been falsified and discussed elaborately in the foregoing paragraphs. This witness has proved the written report which has been marked as Ext. 2 and endorsement has also been marked as Ext. 3. Further, it is also found that as to whether the appellant no. 1 was accused in connection with the said case Markacho P.S. Case No. 5 of 2000 in which the team of the police had gone for investigation where the incident took place, has not been proved because neither any chit of paper has been brought to corroborate the fact that the appellant was accused in Makrchao P.S. Case No. 5/2000 nor charge sheet or any warrant has been brought on record and, thus, the case of the prosecution that the appellant no. 1 was accused in the said Markacho P.S. Case No. 5/2000 does not get substantiated because of the categorical version of the injured Gopal Singh P.W.2 who in his deposition vide para 5 stated that he did not know as to in which case the appellant no. 1 was to be arrested while he was a party of the investigating team and he is said to have sustained the injuries. P.W. 7- informant cum I.O. further stated that he had gone for investigation of Markacho P.S. Case No. 5/2000, but, in examination-in-chief he did not prove any FIR or warrant of arrest to that effect. P.W. 8 Ram Suresh Singh is simply submitted the charge sheet and the investigation of the case was completed by P.W. 7 Girija Nand Jha.
11. Similarly P.W. 3 Rajendra Rajak also stated in para 6 that he had not seen the warrant of arrest of Birbal Yadav, as evident from 9 Cr. Appeal (SJ) No. 1209 of 2004 para 6 and para 7 where he stated that he did not know from which court the warrant of arrest against the Birbal Yadav was issued. Similarly P.W.4 was also indifferent to the fact and stated that he did not know about the warrant of arrest issued by which court against Birbal Yadav.
Although P.W. 5 Mahendra Prasad had stated that the police team had gone to arrest Birbal Yadav by the order of the court, but, neither the warrant of arrest nor the FIR or the other documents had been brought on record to substantiate the version of the prosecution about his involvement in the said offence Markacho P.S. Case No. 5/2000. P.W. 6 Patilal Murmu was a constable, but, he was tendered by the prosecution as not examined
12. Having taken into consideration the testimonies of the witnesses and recapitulating the same, it is well founded that the prosecution has been able to prove that the police team had gone to search the accused-appellant Birbal Yadav in connection with Markacho P.S. Case No. 5/2000 and these two appellants had resisted their arrest. But, prosecution failed to prove any criminal force or assault inflicted by these two appellants upon any of the members of police party including P.W. 2 as discussed in foregoing paragraphs. Further, the prosecution did not bring any independent witnesses although all the witnesses examined on behalf of the prosecution, consistently and uniformly deposed that on the date of occurrence there was a market and at about 100 or 150 people were present and along with the two appellants and the villagers were also resisting his arrest, but, neither any person has been made accused nor as a witness to support the case of prosecution in order to attract the offence punishable u/s 353 or 333 of IPC, therefore, the prosecution has not been able to prove the guilt of the accused person for the offence punishable u/s 353 or 333 of IPC. But, the guilt of accused appellant No.1 Birbal Yadav is well proved u/s 224 10 Cr. Appeal (SJ) No. 1209 of 2004 of IPC and for the accused Appellant No. 2 Ram Dhani Yadav for the offence under section 225 of IPC.
13. In this view of the matter, this Court alters the conviction from the offence punishable u/s 353, 224 and 333 of IPC for the accused appellant No. 1 Birbal Yadav to the offence punishable u/s 224 of IPC and from the offence punishable u/s 353, 225 and 333 of IPC against the appellant no. 2 Ramdhani Yadav to the offence punishable u/s 225 of IPC.
14. Accordingly, this Court upholds the conviction of the appellant No. 1 Birbal Yadav for the offence punishable u/s 224 of IPC only and upholds the conviction of the appellant No. 2 Ramdhani Yadav for the offence punishable u/s 225 of IPC only. So far as the sentence is concerned, it is found that the appellant no. 1, Birbal Yadav remained in jail for about four months whereas the appellant no. 2 Ramdahni Yadav has remained in jail for about 3 months and there is nothing on record to show their criminal history, further it is found from the record that the alleged occurrence has been taken place 22 years ago and both the appellants had been suffering miseries and trauma of criminal prosecution for a long period of time. It is also found that both the appellants have now become more than 50 years old and, therefore, a lenient view is taken by this Court due to these mitigating factors in awarding the sentence and accordingly, they are sentenced for the period already undergone by them. Since, all the appellants are on bail, they are discharged from the liabilities of bail bonds.
15. As a consequence, this appeal is partly allowed as above
16. Let a copy of this judgment be sent to the learned court below along with the LCR.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 06.04.2022/NAFR MM/-