Nageshwar Bhogta vs The State Of Jharkhand
2021 Latest Caselaw 1738 Jhar

                                [1]


      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (S.J.) No. 454 of 2010
(Against the judgment of conviction and order of sentence, both dated
20.04.2010, passed by the learned 1st Additional Sessions Judge, Giridih in
Sessions Trial No. 297 of 1995)

1. Nageshwar Bhogta
2. Rameshwar Bhogta
   Sons of late Mahabir Bhogta,
3. Kapildeo Bhogta, son of Aako Bhogta,
   All residents of village- Garjasaran, P.O. and P.S.- Dhanwar,
   Dist.- Giridih
                                            ...... ........Appellants
                                -Versus-
The State of Jharkhand                        ...... ..... Respondent

                    Heard through Video Conferencing
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PRESENT CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA

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        For the Appellants       : Mr. P.C. Sinha, Advocate
        For the State            : Mrs. Niki Sinha, APP
                                     ------
C.A.V. on 28.08.2020                             Pronounced on 09/04/2021

Heard Mr. P.C. Sinha, the learned counsel for the appellants as well as Mrs. Niki Sinha, the learned APP.

2. This appeal is preferred against the judgment of conviction and order of sentence, both dated 20.04.2010, passed by the learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 297 of 1995, whereby and whereunder, appellant No.1 Nageshwar Bhogta was held guilty for the offence under Section 323 of the Indian Penal Code and sentenced to undergo RI for one year under Section 323 of the Indian Penal Code. The appellant No.2 Rameshwar Bhogta was held guilty for the offence under Section 325 of the Indian Penal Code and sentenced to undergo RI for three years under Section 325 of the Indian Penal Code. The appellant No.3, Kapildeo Bhogta was held guilty for the offence under Section 324 of the Indian Penal Code and sentenced to undergo RI for two years under Section 324 of the Indian Penal Code. Appellants detention in custody during investigation and trial was ordered to be set off.

3. The case of the prosecution, in brief, as per the fardbayan dated [2]

04.11.1993 of the informant Bhuneshwar Mistry (PW-4) son of Tukan Mistry (PW-2) is that on 04.11.1993 at about 8:30 am informant's daughter namely Sunita Kumari was going for grazing she goat. Mistakenly, one of the she goat entered into the paddy field of Raj Kumar Bhogta, on which, the son and daughter of Raj Kumar Bhogta assaulted his daughter. Then informant's daughter went weeping to her grandfather Tukan Rana (PW-2) and told about the incident. Thereafter, Tukan Rana went to ask the children of Raj Kumar Bhogta as to why they had assaulted his granddaughter. Then both the son and daughter of Raj Kumar Bhogta went running to their house and, thereafter, Raj Kumar Bhogta, Rameshwar Bhogta, Nageshwar Bhogta, Laxman Bhogta, Bisheshwar, Binod Bhogta and Kapildeo Bhogta came there forming an unlawful assembly armed with lathi, rod, spear and tangi and surrounded his father Tukan Rana (PW-2) and assaulted him, as a result, informant's father sustained injury. When informant went to save his father, then informant was also assaulted and then informant's mother came there then she was also assaulted by the accused persons as a result she also sustained injuries.

4. On the basis of fardbeyan, Dhanwar P.S. Case No. 122/1993 was registered on 04.11.1993 under Sections 147, 148, 149, 323, 324 and 341 of the Indian Penal Code against the accused persons and subsequently Section 307 of the Indian Penal Code was added in the charge-sheet. Cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed under sections 147, 323 148, 341 and 307/149 of the Indian Penal Code. Trial was held and at the conclusion of the trial accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

5. The prosecution has examined, all together six witnesses in support of its case out of whom PW-4 Bhuneshwar Mistry is the informant of this case; PW-1 Kapuri Devi is the mother of the informant; PW-2 Tukan @ Barhi Rana is the father of the informant; PW-3 Binod Barhi is the brother of the informant; PW-5 Brijendra Kumar Singh is the Investigating Officer of this case and PW-6 is Sheo Prasad Mishra, the doctor who examined the injured persons.

6. PW-4 Bhuneshwar Mistry is the informant of this case. He has stated [3]

in his evidence that on the day of occurrence on 04.11.1993 at about 8:30 am his daughter was going for grazing she goat. After some distance there is a paddy field of Rajkumar Bhogta, Rameshwar Bhogta and Nageshwar Bhogta and on the ridge of this paddy field, his daughter was going to graze she goat and at that place son of Rajkumar had assaulted his daughter and said she goat had eaten paddy. Thereafter, informant's daughter went to her grandfather and said about the occurrence of assault on her. Informant further stated that, thereafter, his father Tukan Mistry and his daughter went to Rajkumar Bhogta for query. In the meantime, two children went to house and, thereafter, Rajeshwar Bhogta, Nageshwar Bhogta, Laxman Bhogta and Kapildeo Bhogta came there armed with lathi-danda, barcha, tangi and rod and surrounded his father and assaulted him. Informant's further has stated that Nageshwar Bhogta assaulted his father with spear, Rameshwar and Laxman have assaulted his father with lathi on his head. PW-4, further has stated that when his mother came to save, then Laxman Bhogta assaulted his mother with ballam on her face as a result lip and nose of her mother was cut and teeth was broken. Informant further stated that when he went to the place of occurrence, then accused persons surrounded him, Nageshwar, Rameshwar and Laxman Bhogta assaulted him with lathi on his hand. In the mean time Kapildeo Bhogta assaulted him with tangi on his head. On hulla, villagers arrived there and accused persons fled away. Villagers took them to the police station and from police station they were sent to hospital for treatment. Informant has proved his signature in the fardbayan which was marked as Ext.-1.

7. PW-1 Kapuri Devi is the mother of the informant. She has stated in her evidence that on the day of occurrence accused persons came on the place of occurrence armed with rod, lathi, tangi, barcha and surrounded her husband and assaulted him as a result her husband was injured. PW-1, further has stated that her son went to rescue him, then her son was also assaulted. When she went to rescue, then she was also assaulted by rod. She sustained injuries on her nose, eye and upper lip. She further stated that Rameshwar Bhogta had assaulted her.

8. PW-2 Tukun Rana is the father of the informant. He has stated in his evidence that on the day of occurrence Nageshwar Bhogta, Laxman Bhogta, [4]

Kapildeo Bhogta and Rameshwar bhogta arrived armed with lathi, ballam, tangi. Laxman Bhogta inflicted rod blow on his head and the accused Nageshwar Bhogta assaulted him with ballam on his left thigh. Thereafter, his son Bhuneshwar came to rescue, then, accused Kapil assaulted his son with tangi on his head. PW-2 has further stated that on hulla, his wife Kapuri Devi came and she was also assaulted by Rameshwar Bhogta as a result she sustained injury on her lip. PW-2 has further stated that he along with his son Bhuneshwar were arrested from the hospital by police as father of Laxman Bhogta namely Raj Kumar Bhogta had died.

9. PW-3 Binod Barhi is the brother of the informant. He has stated in his evidence that on the day of occurrence Raj Kumar Bhogta, Rameshwar Bhogta, Nageshwar Bhogta, Laxman Bhogta, Bishna Bhogta, Binod Bhogta and Kapildeo Bhogta arrived at the place of occurrence armed with lathi, danda, spear, tangi and surrounded his father Takun Barhi. Thereafter, Laxman Bhogta assaulted his father with lathi on his head, Nageshwar Bhogta assaulted his father with spear on his thigh. When his mother Kapuri Devi, went to save his father, then she was assaulted by Rameshwar Bhogta by spear on her right side of nose as a result one of the teeth of her mother was broken. PW-3 has further stated that his brother Bhuneshwar went to rescue, then, accused Kapildeo Bhogta assaulted his brother with tangi on the right side of his head. In para-21, PW-3 has stated that he had gone to jail in the case of murder of Raj Kumar Bhogta.

10.(i) P.W.-6 is Dr. Sheo Prasad Mishra, who examined the injured persons on 04.11.1993. He has found the following injuries on the person of PW-4 Bhuneswar Mistry : -

(i) Sharp cut injury over scalp size 1 ½" x ¼" x ½" caused by sharp cutting weapon.

Doctor stated that injury caused to PW-4 was simple in nature and may have been caused by tangi. Doctor had proved the injury report of PW-4 Bhuneshwar Mistry, which was marked as Ext.-4.

(II) On the same day, the doctor had examined the injured PW-2 Tukan Mistry and found the following injury on his person: -

(i) Lacerated circular wound of size ½" diameter and ½" deep over left thigh caused by any blunt portion perforating substance [5]

like rod and peg.

Doctor opined the injury caused to Tukan Mistry PW-2 was simple in nature. Doctor has proved the injury report of Tukan Mistry which was marked as Ext.-4/1.

(III) On the same day the doctor had examined the injured PW-1 Kapuri Devi and found the following injuries on her person: -

(i) Lacerated wound size ½" x 1/8" over right side of nose above lip with bruise and abrasion over right half of face with swelling of right half of face caused by hard and blunt substance.

(ii) Dislocation of temporo mandibular joint.

Doctor opined that the injury No. 1 was simple and injury No.2 was grievous and both the injuries were caused by hard and blunt substance. Doctor has proved the injury report of Kapuri devi which was marked as Ext.-4/2.

11. PW-5 is the Investigating Officer of this case. The Investigating Officer has stated in his evidence that on 04.11.1993 he had recorded the fardbeyan of the informant Bhuneshwar Mistry. PW-5 has proved the endorsement on the fardbeyan which was marked as Ext. 1/1, formal FIR as Ext.-2, injuries requisitions which were marked as Ext.-3 to 3/2. The Investigating Officer has further deposed that he had inspected the place of occurrence and found blood stained mark on the place of occurrence and sign of lathi blow on the earth.

ARGUMENTS ON BEHALF OF THE APPELLANTS:-

12. Mr. P.C. Sinha, learned counsel for the appellants has referred to the evidence of PW-1 Kapuri Devi and submitted that PW-1 has deposed that when she came out from her house, she found her husband and son in injured condition and blood was oozing out from their body. Therefore, it indicates that PW-1 Kapuri Devi had reached the place of occurrence after the assaults on PW-2 and PW-4, hence, she is not an eye-witness to the occurrence.

13. Learned counsel for the appellants has then referred to the evidence of PW-2 Tukan Rana, who is the father of the informant and points out that this witness has admitted in his deposition that after being assaulted, he [6]

became senseless and he regained his sense in the police station and when he regained his sense, seeing the injury of PW-4 Bhuneshwar Rana and PW-1 Kapuri Devi, he again became senseless. He has deposed in Para-29 of his evidence that his statement was not recorded by the Investigating Officer during the investigation.

14. Learned Counsel for the appellants has then referred to the evidence of PW-3 Binod Rana, who is the brother of the informant. Regarding the evidence of PW-3, learned counsel points out that as per the evidence of the Investigating Officer, the statement of PW-3 was not recorded by him. Learned counsel for the appellants further submits that this witness has been to jail in the case lodged by the accused Rameshwar Bhogta and hence, the evidence of PW-3 cannot be relied on as his statement was not recorded by the Investigating Officer, moreover, his evidence is inconsistent.

15. Referring to the evidence of PW-4 Bhuneshwar Mistry or the informant himself, learned counsel for the appellants argued that this witness was convicted under Section 304 part-I of the Indian Penal Code and sentenced for seven years by the learned Additional Sessions Judge-V, Giridih. Moreover, the evidence of the Investigating Officer regarding the manner of assault is at variance with the manner of assault as given by PW-4.

16. Learned Counsel for the appellants further referred to the evidence of PW-5, who is the Investigating Officer of this case and submitted that he had not seized any incriminating objects and materials from the place of occurrence. The Investigating Officer has also deposed that he did not record the statement of PW-3, Binod Rana. Moreover, coincidently he had also investigated the case lodged by Rameshwar Bhogta against the informant party for the same occurrence.

17. Referring to the evidence of PW-6, Dr. Sheo Prasad Mishra, learned counsel for the appellants points out that whatever may have been the injuries as indicated by PW-6, it is to be noted that from the side of the accused persons one Raj Kumar Bhogta had died in the occurrence and therefore, whatever assault may have been committed by the accused persons were only in the nature of self-defense. Most of the injuries are not [7]

serious in nature and in fact simple and only one injury as per the doctor has been indicated as grievous. Learned counsel for the appellants further argues that the so called grievous injury of Kapuri Devi has not been attributed to any dangerous weapon.

18. Learned counsel for the appellants further argued that none of the prosecution witnesses on behalf of the informant's side are independent witnesses and they are all interested persons motivated against the accused persons. The accused persons or appellants herein were assaulted by the informant's side and one of the persons from accused side Raj Kumar Bhogta had died as a result of the assault by the informant's side and hence, some of the persons from the informant's side have already been convicted and sentenced in Sessions Trial No. 349 of 1994 by the 5th Additional Sessions Judge, Giridih. The assault by the accused persons, if any, on the informant's side is actually the use of the right of private defense, for which, they should not be held responsible or guilty of any offence.

19. Learned counsel for the appellants further submitted that Sunita Kumari, who is the daughter of the informant and who had gone for grazing she goat and thereafter, incident of assault occurred due to grazing of she goat in the paddy field of the accused is allegedly an important witness but she had not been examined. More importantly, learned counsel submits that PW-1 Kapuri Devi, who is an injured witness; PW-2 Tukun Rana, who is the father of the informant and PW-4 Bhuneshwar Mistry, the informant himself, as per their evidence it is clear that none of them saw the assault on each other. Therefore, in any way the conviction of the appellants cannot be sustained on the individual evidence of witnesses and without corroboration.

20. In summing up, learned counsel for the appellants further submitted that the manner of occurrence has also been changed from the fardbeyan when the evidence of prosecution witnesses are taken together. From the evidence of the doctor, the learned counsel for the appellants submits that it is clear that none of the injuries were fatal or dangerous to life, moreover, the injury said to be grievous on Kapuri Devi is not attributed to any dangerous weapon. The Investigating Officer has deposed that paddy crop was found grazed and crushed by the animals which indicates that the crops [8]

of the accused persons was grazed by the animals of the informant and which leads to a just cause of action on behalf of the accused persons and very rightly the accused persons were taking the animals of the informant's side to the compound or to the house and then the accused persons were assaulted with no just cause of action. Therefore, the informant's side would be aggressors having no just cause of actions and appellants only responded in self-defense leading to the assault that lead to the death of one of the persons from their side.

ARGUMENTS ON BEHALF OF THE STATE:-

21. Mrs. Niki Sinha, learned APP appearing on behalf of the State submits that PW-1 Kapuri Devi has clearly stated that Rameshwar Bhogta had assaulted her and the doctor has found lacerated wound over right side of her nose above lip with bruise and abrasion caused by hard and blunt substance. Doctor also found dislocation of temporo mandibular joint on the person of PW-1 which was indicated as grievous injury caused by hard and blunt substance. Learned counsel further submitted that PW-2 Tukan Rana and PW-4 Bhuneshwar Mistry had also sustained injury and their injury reports are also on record. Doctor had opined that weapon such as blunt portion of rod or peg was used in the assault. The learned APP, therefore, submits that the injuries found on the persons of Kapuri Devi, Tukan Rana and Bhuneshwar Mistry fully corroborates the oral evidence of these witnesses and with the evidence of the doctor PW-6.

22. The learned APP further submits that the fact of occurrence is fully made in the sense that there is a case of counter case, therefore, both sides have testified the occurrence. The appellants took the law into their own hand and assaulted the informant's party to the extent of causing death on the side of the accused party itself. Lastly, learned counsel for the State submitted that the impugned judgment of conviction and order of sentence passed by the learned court below is based on evidence and requires no interference by this court.

FINDINGS:

23. I have heard both the counsels, gone through the records of the case and in the facts and circumstances of the case. The three appellants herein were convicted under three different sections of the Indian Penal Code and [9]

more specifically Appellant No.1 Nageshwar Bhogta under Section 323, Appellant No.2 Rameshwar Bhogta under Section 325 and appellant No.3 Kapildeo Bhogta was convicted under Section 324 of the Indian Penal Code.

24. From the record, I find that the case in hand relates to the case and counter case. Ext.-A has been filed by the appellants side herein which is a certified copy of the judgment of conviction and the order of sentence both dated 20.07.1999, passed in counter case, in Sessions Trial No. 349/94 by the 5th Additional Sessions Judge, Giridih wherein the informant of the present case in hand or PW-4 Bhunewhwar Mistry was convicted under Section 304 part I of the Indian Penal Code for causing death of the deceased Raj Kumar Bhogta who was from appellant side and was sentenced to RI for seven years. Further, the impugned judgment is of conviction and the order of sentence both dated 20.04.2010, passed by the learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 297 of 1995. Hence, obviously ratio as laid down by the Hon'ble Supreme Court in the case of Nathi Lal and others v. State of U.P. and another reported in 1990 (Supp) Supreme Court cases 145 was not followed, which says that both the cross cases must be tried by the same learned Judge one after another and both the judgments must be pronounced by the same learned Judge one after the other. But, both the cross cases as discussed above were tried by the two different court.

25. On perusal of injury caused to the informant side herein, I find that in the assault three persons from informant side were injured who are informant or PW-4 Bhuneshwar Mistry, PW-2 Tukan Mistry and PW-1 Kapuri Devi and in total four injuries were caused to all these three injured. Further, I find from the deposition of the doctor or PW-6 that out of four injuries sustained by the informant side, three injuries were simple in nature and one of the injury sustained by PW-1 Kapuri Devi i.e. dislocation of temporo mandibular joint was opined to be grievous in nature which was opined by the doctor to have been caused by hard and blunt substance. So, in a situation, when one person from appellant, namely, Raj Kumar Bhogta had died, then it is natural that appellants side would have been forced to protect themselves from assault inflicted by the informant herein or PW-4 Bhuneshwar Mistry and in the process of defending themselves appellant [10]

side had caused injuries to the informant side that too almost all the injuries inflicted by the appellants are simple except one which is injury No.2 caused to PW-1 Kapuri Devi. But, as regard to injury No.2 caused to PW-1 Kapuri Devi, I find from the fardbeyan of the informant that his mother or PW-1 Kapuri Devi was not present at the place of occurrence, but when she came to know about the occurrence, she had come to the place of occurrence and was injured in the assault. PW-1 Kapuri Devi has deposed that she was assaulted by Appellant No.2 - Rameshwar Bhogta and informant has also corroborated the deposition of PW-1 Kapuri Devi. So, ocular evidence of injured PW-1 Kapuri Devi and PW-4 Bhuneshwar Mistry is corroborated by the medical evidence of doctor or PW-6. But, injury No.2 sustained by PW-1 Kapuri Devi, which was opined by the doctor to be grievous is doubtful as doctor or PW-6 has without X-ray report, while examining the injured PW-1 Kapuri Devi opined that injury no.2 i.e. dislocation of temporo mandibular joint caused to PW-1 Kapuri Devi was grievous and hence, raises doubt whether injury No. 2 sustained by PW-1 Kapuri Devi is grievous.

26. Hence, when one of the person from appellants side namely Raj Kumar Bhogta had died due to assault made by informant herein i.e. PW-4 Bhuneshwar Mistry, for which, informant herein or PW-4 Bhuneshwar Mistry was convicted under Section 304 part I of the Indian Penal Code for causing death of the deceased Raj Kumar Bhogta by the judgment dated 20.07.1999 passed in Sessions Trial No. 349/94 by the 5th Additional Sessions Judge, Giridih. So, there is no reason to proceed for the simple injuries caused to the informant side herein as regard to Appellant No.1 Nageshwar Bhogta and Appellant No.3 Kapildeo Bhogta as these two appellants had only caused simple injuries and did not inflict more harm than it was necessary though one of the person from appellants side itself namely Raj Kumar Bhogta had died. But, so far as conviction of Appellant No.2 Rameshwar Bhogta under Section 325 of the Indian Penal Code is concerned, I find from the evidence of injured PW-1 Kapuri Devi that she came to the place of occurrence to rescue her son and husband. She was unarmed and was not part of assault between both the parties, however, she was assaulted by Appellant No.2 Rameshwar Bhogta. From injury report Ext.-4/2 of PW-1 Kapuri Devi, I find that she was injured but as discussed [11]

in preceding paragraph, grievous injury sustained by her as opined by the doctor is doubtful. So, conviction of Appellant No.2 Rameshwar Bhogta is modified to one under Section 323 of the Indian Penal Code.

27. Accordingly, the impugned judgment of conviction and the order of sentence, both dated 20.04.2010, passed by the learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 297 of 1995, so far as it relates to Appellant No.1 Nageshwar Bhogta and Appellant No.3 Kapildeo Bhogta are set aside and both these appellants are discharged from liability of bail bond. However, conviction of the Appellant No.2 Rameshwar Bhogta is modified to one under Section 323 of the Indian Penal Code. Regarding the sentence of Appellant No.2 Rameshwar Bhogta, I find that occurrence is of the year 1993 and till now more than 25 years have passed, appellant has faced rigor and vigor of trial and presently Appellant No.2 Rameshwar Bhogta is in his fifties and hence, Appellant No.2 Rameshwar Bhogta will undergo modified sentence of simple imprisonment of three months and to pay a compensation of Rs. 5,000/- to the injured PW-1 Kapuri Devi and in default of payment of compensation amount he will undergo 2 months simple imprisonment.

28. Accordingly, the bail bond of Appellant No.2 Rameshwar Bhogta is hereby cancelled.

29. Accordingly, this criminal appeal is partly allowed.

(Ratnaker Bhengra,J.)

Jharkhand High Court, Ranchi, Dated 28th August, 2020, Madhav- NAFR