Jharkhand High Court
Kishun Turi vs The State Of Jharkhand on 6 October, 2023
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No.249 of 2011
(Against the Judgment of Conviction and Order of sentence dated 24th
February, 2011 passed by the Additional Sessions Judge-cum-F.T.C. VII,
Giridih in Sessions Trial Case No.44 of 2000)
Kishun Turi .... Appellant
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mr. Kumar Saurav, Amicus Curiae For the State : Mr. V.S. Sahay, A.P.P. .....
C.A.V. 29.08.2023 Pronounced on 06.10.2023
1. Heard learned Amicus Curiae for the appellant and learned A.P.P. for the State.
2. The instant criminal appeal is preferred on behalf of the appellant against impugned Judgment of Conviction and Order of Sentence dated 24th February, 2011 passed by the learned Additional Sessions Judge-cum-F.T.C., Giridih in Sessions Trial Case No.44 of 2000, whereby, the appellant has been convicted for the offence under Sections 323/34, 341/34, 325/34, 427/34 and 307 of the Indian Penal Code and has been sentenced to undergo simple imprisonment for one year under Section 323/34 of the I.P.C., simple imprisonment for one month under Section 341/34 of the I.P.C., rigorous imprisonment for three years under Section 325/34 of the I.P.C. and rigorous imprisonment for two years under Section 427/34 of the I.P.C. Further he was directed to undergo rigorous imprisonment for 5 years along with fine of Rs.5,000/- for the offence under Section 307 of the I.P.C. and in default of payment of fine he was -2- Cr. Appeal (S.J.) No.249 of 2011 directed to undergo simple imprisonment for three months. All the sentences were directed to run concurrently.
3. The prosecution case in brief is that informant Jitan Rajak gave the written information with these allegations that on 17th March, 1999 at 10 o' clock of day time, the bullocks, goat and swine of Kishun Turi were grazing the potato and wheat crop of the informant and had damaged the same. He raised alarm whose cattle were those. The wife of Kishun Turi came and began to drive out those cattle. The informant stated that her cattle had damaged his crop and the wife of Kishun Turi hurled abuse to him. In the meantime the son of the informant Ramdeo Rajak began to drive out the cattle with lathi. Kishun Turi, Mahendra Turi, Mohan Turi all armed with lathi and sword came there and began to assault to the son of the informant. Kishun Turi assaulted with sword, whereby the informant's son became injured. Mahendra Turi and Mohan Turi assaulted with lathi to his daughter-in-law. The wife of informant's son, namely, Geeta Devi and his grandson, namely, Shankar Kumar Rajak came to rescue. The wife of Kishun Turi, namely, Manju Devi also assaulted them with lathi and danda. On this written information, the Case Crime No.27 of 1999 was registered with the police station Jamua under Sections 341, 323, 324, 506/34 of the I.P.C. against the accused Kishun Turi, Mahendra Turi, Mohan Turi and wife of Kishun Turi.
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Cr. Appeal (S.J.) No.249 of 2011
4. The Investigating Officer after having concluded the investigation filed charge-sheet against Kishun Turi, Mahendra Turi, Mohan Turi, Bichhautiya Devi and Manju Devi for the offence under Sections 341, 323, 325, 337, 307, 427 and 506 read with 34 of the I.P.C. and the Magistrate concerned after having taken the cognizance thereon had committed the case for trial to the court of Sessions Judge.
5. The trial court framed the charge against Kishun Turi, Mahendra Turi, Mohan Turi, Bichhautiya Devi and Manju Devi for the offence under Sections 323/34, 341/34, 325/34 427/34. The charge-sheet under Section 307 of the I.P.C. was filed separately against accused Kishun Turi. The charge was read over to all the accused, who denied the charge and claimed for trial.
6. On behalf of the prosecution to prove the charge against the accused persons in oral evidence examined P.W.1-Jitan Rajak, P.W.2-Ramdeo Rajak, P.W.3- Hari Narayan Singh (the I.O.), P.W.4- Dr. Imran Sikol and P.W.5- Dr. Chandra Bhusan Sahai.
7. On behalf of the prosecution in documentary evidence adduced formal F.I.R. Ext.1, forwarding on fard beyan Ext.2, Injury report of Ramdeo Rajak Ext.3, second injury report of Ramdeo Rajak Ext.4.
8. The statement of accused persons under Section 313 of the Cr.P.C. was also recorded, wherein the accused persons denied -4- Cr. Appeal (S.J.) No.249 of 2011 the incriminating circumstances against them and no defence evidence was adduced.
9. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against all the accused persons/appellants as aforesaid. The convicts, namely, Mahendra Turi, Mohan Turi, Bichautiya Devi and Manju were released on probation of good conduct on their entering into the bond of three years with one surety of Rs.5000/- only to appear and receive sentence when called upon during three years and in the meantime they were directed to keep the peace and be of good behavior.
10. The convict/appellant - Kishun Turi being aggrieved with the judgment of conviction and order of sentence preferred the present criminal appeal on the grounds that the impugned judgment of conviction and sentence is bad in the eyes of law. The court below has not appreciated the evidence on record in proper perspective. The appellant was convicted and sentenced for the offence under Section 307 of the I.P.C. while neither the weapon i.e., sword was recovered nor the nature of injury is proved from the evidence on record. The ocular evidence is not corroborated with the medical evidence. The appellant was also convicted for the offence under Sections 323, 341, 325, 427 read with 34 of the I.P.C. but no ingredient of the alleged charge is made out from the evidence on record. The learned trial court released other co-convicts on probation for good -5- Cr. Appeal (S.J.) No.249 of 2011 conduct for the offence under Sections 323, 341, 325 and 427 read with 34 of the I.P.C. while the appellant - Kishun Turi was sentenced separately for each of the offence without recording any reasons for the same. The impugned judgment of conviction is based on conjectures and surmises. The evidence was not properly explained to the appellant while recording his statement under Section 313 of the Cr.P.C. by the learned court below.
11. Heard learned Amicus Curiae for the appellant and learned A.P.P. for the State of Jharkhand and perused the materials available on record.
12. In order to decide the legality and propriety of the impugned judgment of conviction and sentence passed against the appellant, the evidence adduced on behalf of the prosecution is to be re-appreciated herein.
13. P.W.-1 Jitan Rajak, in his examination-in-chief says that the occurrence is of four years ago and the time was 10:00 a.m. The swine and goats of Kishun Turi had damaged the potato and wheat crop of him. He was driving them out of the agricultural field. Hearing his sound his son Ramdeo came out of the house and he was surrounded by Kishun Turi, Mahendra Turi, Mohan Turi, daughter of Kishun Turi and wife of Kishun Turi as well. All began to assault him. Kishun Turi assaulted with sword with intent to kill him and also exhorted to other accused to kill him. The other co-accused assaulted him with lathi. He -6- Cr. Appeal (S.J.) No.249 of 2011 went to police station concerned where the Daroga ji took them to Giridih Sadar hospital and from there his son was referred to Bariatu Hospital in Ranchi where his son was treated for one month. They identified Kishun Turi, Mahendra Turi who were present in the dock.
In cross-examination this witness says that he does not recollect the day, date and year of the occurrence. He did not sustain any injury. No other member from his side sustained injury. He gave information at 10 o' clock in day time. He does not recollect whether he gave reference of the bullock in his re- statement or not. He could not tell the khata number, plot number, area and boundary of the land of which the crop was damaged. He has mentioned in his fard beyan that the assault with sword was given on the head of his son.
14. P.W.-2 Ramdeo Rajak (the injured) in his examination-in-
chief says that the occurrence was of 10 o' clock of day time of 17th March, 1999. At the time of occurrence he was at his house. The swine and the bullock of Kishun Turi had damaged the potato crop of his agricultural field. His father Jitan Rajak were driving them out of the agricultural field. The wife of Kishun Turi hurled abuse to him. He reached there at the same time, Kishun Turi, Mohan Turi, Chotu Rana and wife of Chotu Turi, total six persons surrounded him and Kishun Turi assaulted with sword on his head. The rest of the accused assaulted him with lathi. His wife Geeta Devi and his nephew Shankar Rajak -7- Cr. Appeal (S.J.) No.249 of 2011 came to rescue and they were also assaulted by the accused persons. He was taken for treatment to Jamua hospital from there he was referred to Ranchi Medical College, where he remained admitted for one month.
In cross-examination, this witness says that he could not say that who had come at the time of occurrence when he was assaulted by the accused persons. The maar peet took place for ten minutes. He was in senses and he had given his statement to the police. He was treated in Bariatu Hospital, Ranchi and he does not recollect the date of admission and discharge from the hospital. The place of occurrence was at the distance of 50 feet from his house.
15. P.W.-3 Hari Narayan Singh in his examination-in-chief says that on 17th March, 1999 he was posted as A.S.I. in Jamua police station Giridih. The informant Jitan Rajak had given the written information and on the basis of the same the investigation of Jamua P.S. Case No.27 of 1999 was handed over to him by the Officer-in-Charge of the police station. He recorded the re-statement of the informant and also recorded the statement of the injured Shankar Rajak and Geeta Devi. He also inspected the place of occurrence at the pointing of informant. In the agricultural field the crop of wheat and potato was found damaged. There was mark of the legs of cattle. No blood mark was found at the place of occurrence. The formal F.I.R. was prepared by Naresh Sinha. He identified his signature -8- Cr. Appeal (S.J.) No.249 of 2011 and writing which was marked Ext.1. The endorsement of the written information was also identified by this witness and marked Ext.2. He did not recorded the khata and plot number of the agricultural field on which the crop was damaged. The occurrence of maar peet took place near the Kacchi Sadak.
16. P.W.-4 Dr. Imran Sikoh in his examination-in-chief stated that on 17th March, 1999 he was posted at Sadar Hospital, Giridih as C.A.S. and on that day at 2:05 p.m. he examined Ramdeo Rajak of village Pargodih, P.S. Jamua District Giridih. The patient was referred by the Medical Officer, P.H.C., Jamua to Sadar Hospital, Giridih. He found the following injuries on his person :
i. Lacerated wound 3" x ¼" x skin and scalp muscle deep on the scalp.
ii. Nature of injury - opinion reserved as the patient was hospitalized and the hospitalization and x-ray of the patient is referred to RMCH Ranchi.
iii. Age of injury is within 24 hours.
This injury report was prepared by him and bears his signature which was marked Ext.3. This witness was cross-
examined and in cross-examination he stated that such injury was not possible by fall.
17. P.W.-5 Dr. Chandra Bhusan Sahai in his examination-in-
chief stated that on 18th March, 1999 he was posted as Resident Surgical Officer in R.M.C.H., Ranchi. The patient Ramdeo Rajak was admitted vide registration no. E.R.N.S./173 on bed no.13 Department of Neurosurgery R.M.C.H., -9- Cr. Appeal (S.J.) No.249 of 2011 Ranchi for the treatment of multiple injuries and head injury. The patient was referred from District Hospital Giridih vide no.687 dated 17th March, 1999. Details of injuries are :
i. Three inch long stitched wound on right side front parital region near mid line.
ii. 2" x 2" abrasion and bruise on upper part of occipital region in mid line.
iii. Tenderness left side lateral and lower of chest.
C.T. scan of the brain and skull - Linear fracture of right temporal bone extra dural haemotoua in right front temporal region. None haemorrhagic contusion in right frontal tube.
Compression of right lateral ventricle. In x-ray the fracture of right temporal and frontal bones were shown. The nature of weapon was hard blunt weapon for the wound no.2 and 3. For wound no.1 opinion should be taken from the hospital where the stitching was done. The injury no.2 was simple; while injury nos.1 and 3 were grievous. He prepared the injury report and same is in his signature which was marked Ext.4. In cross-examination, this witness says that such type of injury cannot be caused due to fall.
18. Prior to analyze the evidence on record it would relevant herein to give the certain statutory provisions which read as under :
Section 307. Attempt to murder.
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
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Cr. Appeal (S.J.) No.249 of 2011 Section 319. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 320. Grievous hurt.
The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye. Thirdly.--Permanent privation of the hearing of either ear. Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth. Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Section 321. Voluntarily causing hurt.
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 322. Voluntarily causing grievous hurt. Whoever voluntarily causes hurt, if the hurt which he intends to cause 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 323. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 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. Section 339. Wrongful restraint.
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
Section 341. Punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 425. Mischief.
Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or
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Cr. Appeal (S.J.) No.249 of 2011 knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
Section 427. Mischief causing damage to the amount of fifty rupees.
Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
19. As per matrix of the prosecution case the occurrence took place on damaging the potato and wheat crop of the informant by the cattle of Kishun Turi. The witness P.W.-1 Jitan Rajak, who is informant himself and also the eye-witness of the occurrence, P.W.-2 Ramdev Rajak is also the eye- witness and victim of the occurrence. Both these two witnesses have stated that swine and goat of Kishun Turi have damaged the potato and wheat crop of their agricultural field and it also came in evidence that while informant Jitan Rajak was driving them out from the agricultural field, the wife of Kishun Turi also drived out the cattle from the agricultural field.
20. On behalf of the prosecution to attract the provision of Section 425 I.P.C. which is punishable under Section 427 I.P.C., there is no evidence in regard to voluntarily causing the cattle to remove the crop in the agricultural field of the informant. The word "voluntarily" has been defined under Section 39 of the I.P.C. which reads as under :
Section 39. ''Voluntarily''.
A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
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Cr. Appeal (S.J.) No.249 of 2011
21. From the evidence adduced on behalf of the prosecution, there is no evidence in regard to the intention on the part of accused Kishun Turi causing the cattle to damage the crop of the informant. There is no such evidence that while leaving the cattle, the informant had knowledge that this cattle would enter in the agricultural field of the informant and would cause damage to the crop of the informant. As such, there is no evidence in regard to voluntarily causing damage to the crop of the informant by the appellant/convict. Therefore, no offence under Section 425 which is punishable under Section 427 I.P.C. is made out against him.
22. So far as the offence under Sections 323, 325 and 341 of the I.P.C. is concerned, it came in evidence that all the accused persons had surrounded the son of the informant armed with weapon and began to assault him obstructing him to proceed in any direction in which he has right to proceed. The P.W.-1 and P.W.-2 have given statements to this effect. So far as the offence under Sections 323 and 325 of the I.P.C. are concerned, the P.W.-1 Jitan Rajak and P.W.-2 Ramdeo Rajak have stated that it was Kishun Turi, who exhorted to all the accused to kill the son of the informant. Though he himself assaulted with sword on the head of son of informant, yet exhortation given by him to other accused, who had assaulted with
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Cr. Appeal (S.J.) No.249 of 2011 lathi to the injured persons shows sharing of common intention along with other accused in assaulting injured with lathi and sword. Both these witnesses i.e., P.W.-1 and 2 have stated that Ramdeo Rajak while in injured condition was taken to District Hospital, Giridih and from there his injuries were examined and thereafter he was referred to R.M.C.H., Ranchi where he was admitted for one month. P.W.-3 Hari Narayan Singh (the I.O.) in his statement stated that he had recorded the statement of informant and also recorded the statement of injured Ramdeo Rajak and other witnesses, namely, Shankar Rajak and Gita Devi as well. He also inspected the place of occurrence. During cross-examination no contrary conclusion was drawn on behalf of the defence in regard to the statement given by the witness P.W.-1 and P.W.-2 before the trial court and their statement given to the I.O. under Section 161 Cr.P.C.
23. This ocular evidence is sought to be corroborated on behalf of the prosecution by the medical evidence. P.W.-4 Dr. Imran Sikoh has proved the injury report of injured Ramdeo Rajak. He has shown the lacerated wound of 3" x ¼" x skin and scalp muscle deep on the scalp. The opinion in regard to nature of injury was reserved since the patient was hospitalized and was also referred for x- ray and hospitalization to R.M.C.H. Ranchi.
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Cr. Appeal (S.J.) No.249 of 2011
24. P.W.-5 Dr. Chandra Bhusan Sahai has stated that on 18th March, 1999, the patient Ramdeo Rajak was admitted vide registration no. E.R.N.S./173 on bed no.13 Department of Neurosurgery R.M.C.H., Ranchi for treatment of multiple injury and head injury. He also opined that as per C.T. scan and x-ray there was linear fracture of right temporal bone. There was also fracture on the 8th ribs of the chest in view of x-ray report. The injury no.2 was simple while injury nos.1 and 3 were grievous. The injury no.1 was on the temporal region while injury no.3 was on the chest of the injured.
25. In the injury report prepared by P.W.-4 Dr. Imran Sikoh in Sadar Hospital, Giridih injury on the temporal region is shown to be lacerated wound.
26. Learned Amicus Curiae has submitted that as per ocular evidence, the head injury was caused by sword which is sharp edged weapon and no lacerated wound can be caused. As such there is contradiction in the ocular evidence and the medical evidence. But this plea raised by the learned amicus curiae is not found sustainable. As per ocular evidence, the assault with sword was caused by the appellant Kishun Turi on the head which is such body part on which if the assault given by any sharp edged weapon, the lacerated wound is likely to be caused.
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27. The Hon'ble Apex Court in the case of The State Of Rajasthan Versus Gurbachan Singh & Others reported in 2022 Livelaw (SC) 1028 at paragraph 11 has held as under :
"11. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a coperpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention."
28. The Hon'ble Apex Court in the case of Krishnamurthy @ Gunodu And Others Versus State Of Karnataka reported in 2022 Livelaw (SC) 220 at paragraph 18 has held as under :
"18. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre- arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence 11 normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the coassailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or
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Cr. Appeal (S.J.) No.249 of 2011 main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other coparticipants. Further, the expression/term "criminal act" in Section 34 IPC refers to the physical act, which has been done by the co-
perpetrators/participants as distinct from the effect, result or consequence. In other words, expression "criminal act" referred to in Section 34 IPC is different from "offence". For example, if A and B strike Lathi at X, the criminal act is of striking lathis, whereas the offence committed may be of murder, culpable homicide or simple or grievous injuries. The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the IPC. Intention may be an ingredient of an offence and this is a personal matter. For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 IPC can be invoked for the said offence also [refer Afrahim Sheikh and Ors. (supra)]. Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory."
29. Some relevant text of Modi's Medical Jurisprudence and Toxicology 22nd Edition reads as under :-
"The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with incised looking wound occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc."
30. Therefore keeping in view the seat of the injury which is on the scalp of the injured and since none of the two doctors who were the expert could give the opinion in regard to the weapon by which the injury could have been caused, this cannot be accepted keeping in view the above texts as mentioned in regard to medical jurisprudence that such lacerated wound on the scalp cannot be caused by the sword. Moreover, it is the
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Cr. Appeal (S.J.) No.249 of 2011 settled law that ocular evidence would prevail over medical evidence unless and until the medical evidence totally over rules the ocular evidence.
31. The Hon'ble Apex in the case of Bhajan Singh alias Harbhajan Singh and Ors v. State of Haryana reported in AIR 2011 SC 2552 at paragraph 23 has held as under :
"23.Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
32. Therefore the ocular evidence is also corroborated with medical evidence in the case in hand. So far as the plea of non- recovery of the weapon raised by the learned amicus curiae is concerned, the same cannot be said to be fatal to the prosecution case. The prosecution case is based on direct evidence. The presence at the place of occurrence of the injured victim himself and the eye-witness (the father of the victim) cannot be doubted in view of the evidence adduced on behalf of the prosecution.
33. The Hon'ble Apex Court in the case of Md. Jamiluddin Nasir v. State of West Bengal reported in AIR 2014 SC 2587 at paragraph 48 has held as under :
"48.As far as the contention made on behalf of the Appellant that non-production of the weapon used in the attack is fatal to the case of the prosecution is concerned, the reliance placed upon by the learned Additional Solicitor General to the decision reported in Ram Singh v. State of Rajasthan (2012) 12 SCC 339 would meet the said contention. In paragraphs 8 and 10, this Court has also held that the non-production of the weapon used in the
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Cr. Appeal (S.J.) No.249 of 2011 attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is also rejected."
34. In view of the above discussions and careful analysis of the evidence on record, the offence under Sections 323, 325 and 341 of the I.P.C. is made out against the appellant/convict.
35. So far as the offence under Section 307 I.P.C. is concerned, the blow given with sword by the appellant Kishun Turi on the head of the injured Ramdeo Rajak shows his intention and knowledge that giving blow with the sword on the vital part of the body i.e., head would cause death of the injured. Therefore, the offence under Section 307 of the I.P.C. is made out against the appellant Kishun Turi.
36. The Hon'ble Apex Court in the case of State of M.P. v.
Kashiram & Ors. reported in (2009) 4 SCC 26 at paragraphs 12 and 13 has held as under :
"12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
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Cr. Appeal (S.J.) No.249 of 2011
13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
37. After analysis of the evidence on record, this Court is of the considered view that the prosecution has been successful to prove the charge under Sections 307/323/341/325 read with 34 of the I.P.C. against the appellant. The appellant is acquitted for the charge under Section 427 of the I.P.C. but the conviction of the appellant under Sections 307/323/341/325 read with 34 of the I.P.C. is, hereby, affirmed. Accordingly, this criminal appeal is partly allowed.
38. The appellant is on bail his bail bonds are cancelled and he is directed to surrender before the learned court below. The learned court below is directed to issue non-bailable warrant against him in order to ensure his presence and to send him jail to serve out the sentence inflicted for the charge under Sections 307/323/341/325 read with 34 of the I.P.C.
39. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance.
(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated, the 6th October, 2023.
Rohit / A.F.R.