Jharkhand High Court
Shambhu Nath Singh vs The State Of Jharkhand on 2 December, 2021
1
Cr. Appeal (SJ) No. 920 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 920 of 2003
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(Against the judgment of conviction dated 25.06.2003 and order of
sentence dated 26.06.2003 passed by the learned Additional District
& Sessions Judge cum Fast Track Court-I, Gumla in S.T. Case No.
329 of 1993.)
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Shambhu Nath Singh ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'B LE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. A.K. Chaturvedy, Advocate
Mr. Rajesh Kumar Singh, Advocate
Mr. Amit Kr. Chaubey, Advocate
Mr. Hadish Ansari, Advocate
For Respondents : Mr. Abhay Kumar Tiwari, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 13 : Dated: 2nd December, 2021
1. This appeal is directed against the judgment of conviction
dated 25.06.2003 and order of sentence dated 26.06.2003 passed by the
Additional District & Sessions Judge cum Fast Track Court- I, Gumla
by which the sole appellant Shambu Nath Singh has been convicted
for the offences punishable u/s 326/452 IPC and has been sentenced
to undergo R.I. for two years u/s 326 IPC and he is further sentenced
to R.I. for 1 year and u/s 452 of IPC and both the sentence were
ordered to run concurrently.
2. The prosecution story arose in the wake of the statement of
P.W. 2-Gayatri Devi whose statement was recorded on 06.06.1993 in
the evening. The informant Gayatri Devi, P.W. 2, stated that on
05.06.1993 at about 12 'O' clock in noon one Rakesh Kumar
Singh(son of the appellant) had thrown one slipper of Arvind Kumar
Singh, son of the informant, P.W.2, on the roof of her house and had
taken with him, his another slipper to bantalab. On the same day
Arvind Kumar Singh (her son) went to Rakesh Kumar Singh's house
Cr. Appeal (SJ) No. 920 of 2003
and told about the occurrence. Thereafter on 06.06.1993 at about 6.00
p.m., the wife of Shambhu Singh (appellant) came and said that her
son had not thrown the slippers of P.W.4 Arvind Kumar Singh. There
was exchange of hot words between them when wife of Shambhu
Singh went to home of the informant (P.W.2). Then at about 6.30 pm
the appellant Shambhu Singh came with a sword by a scooter and
entered into her house after parking the scooter at the door. Shambhu
Singh hurled sword on her son Navin Kumar Singh (P.W.1). She
went to save him, then Shambhu Singh hurled sword blow on her
neck, which she stopped by her left hand resulting injuries on her
both hands and she became unconscious. At the time of occurrence
her husband was not present in the home as he went for repairing of
the truck in the garage. One Bisram Mahto was present at the time of
occurrence and he had seen the occurrence. On her hulla neighbour
assembled there who has seen her in injured position and Shambhu
Nath Singh running away from the place of occurrence. On this
statement Gayatri Devi put her left thumb impression.
3. On the basis of aforesaid statement of P.W. 2 a formal FIR was
drawn, the investigation of the case commenced, after completion of
the investigation, the charge sheet was submitted against the
appellant Shambhu Nath Singh. Thereafter, the case was committed
to the Court of Session for trial. Learned trial court framed the
charges against the sole appellant- Shambhu Nath Singh on
19.09.1996 for the offences punishable under sections 452, 307 & 326
of IPC and after concluding the trial the impugned judgment of
conviction and order of sentence was passed which is under
challenge.
4. Heard Mr. A.K. Chaturvedy, learned counsel for the appellant
and Mr. Abhay Kumar Tiwary, learned A.P.P. for the State.
Arguments on behalf of the appellants:-
5. Assailing the impugned judgment of conviction and order of
sentence it has been submitted on behalf of the appellant that the
Cr. Appeal (SJ) No. 920 of 2003
learned trial court has completely ignored the facts that neither the
sword had been recovered nor any blood stained cloth has been
recovered as it is evident from the evidence on behalf of the
prosecution that seizure list has not been duly proved in the manner
it should be proved as the I.O. in this case has not been examined.
The non-examination of the I.O. has caused serious prejudice to the
accused appellant because no contradiction could be brought out on
behalf of the appellant particularly with respect to the statements of
the witnesses and no material was exhibited including the articles
seized, namely blood stained sword and scooter, of Ext.2 which is
said to be the seizure list. Thus no independent witness has
supported the case of the prosecution. Further it has also been
pointed by the learned defence counsel that the injury which has
been allegedly inflicted by the accused appellant has not been
corroborated with the injury report (Ext.1). It has further been
submitted that the learned Trial Court has not taken into
consideration that the doctor P.W.3 who had examined the injured
P.W.2 did not find her unconscious. Thus, the learned court below
did not scrutinize the statement of the witnesses properly and gave
the findings which are contrary to the materials on record and thus
the impugned judgment of conviction and order of sentence is bad in
law and fit to be set aside.
Arguments on behalf of the State
6. On the other hand, learned A.P.P. has vehemently opposed the
contentions of the learned counsel for the appellant and submitted
that P.W. 2 is the injured witness who had herself stated the
occurrence before the court and the same has been supported by the
evidences of P.W. 1 and 4 who are the sons of the P.W.2. P.W. 6 is the
independent witnesses who supported the version of the victim.
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.
Cr. Appeal (SJ) No. 920 of 2003
FINDINGS
7. Having heard learned counsels of the parties, perused the
documents available on record including the lower court records.
8. At the outset in order to appreciate the testimonies of witnesses
examined on behalf of the prosecution vis-a-vis the injuries inflicted
by the appellant upon the injured P.W.2, it is necessary to appraise
the injuries report Ext.1 prepared by the doctor P.W.3- Dr.
Mrityunjay Sarawagi who had examined P.W.2 and found the
following injuries:-
(i) Incised wound semi lunar in shape over
dorsum of left hand on its medical aspect
extending over to hypoteiner eminence size
5"x2"x1/2" deep with incised muscle. External
tendon of the little finger and transverse fracture
of the under lying bone.
(ii) Incise wound over right dorsum of the
wrist 1 ½"x ½"x1/2" deep. Both the injuries were
caused by sharp cutting weapon.
Injury no. (i) is grievous in nature and
injury no. (ii) is simple.
In the opinion of the doctor, the injuries may be caused by
sword blow. Both the injuries were caused within 3 hours of the
examination. Injury report is marked as Ext. -1. He further stated that
these injuries cannot be caused by holding a sharp weapon and
pulled by somebody, since the injury is on the dorsum. Both the
injuries were caused by separate blow. These findings of the injuries
are evaluated in the light of other evidences available on record in the
forthcoming Paragraphs.
9. The bone of contention of the case is the quarrel between P.W.4
Arvind Kr. Singh (son of the informant) and son of the appellant
namely Rakesh Singh. It is stated that the son of the appellant namely
Rakesh Kumar Singh had gone to the place of the informant, whose
son Arvind Singh was his friend, in order to go with him to take bath
in the pond, but, Arvind kr. Singh refused to go to take bath, upon
which the son of the appellant Rakesh Singh snatched his one of the
sleepers and threw on the roof and took away the another slipper
with him. Thereupon, the P.W. 4 had gone to the house of the
Cr. Appeal (SJ) No. 920 of 2003
appellant and made a complaint about his son Rakesh Singh, who
was the friend of P.W.4. Then the wife of the appellant came and
quarreled with the prosecution parties and, thereafter, the appellant
himself came to the place of occurrence and a quarrel took place by
which P.W.2 Gayatri Devi got injured. It has been charged that the
appellant caused injuries by sword upon P.W.2.
10. The defence taken on behalf of the appellant was that it was the
appellant who was assaulted by the informant people and the present
case was instituted at the instance of P.W.2 after causing injury to the
appellant.
11. In support of the prosecution case, altogether 08 witnesses were
examined and some documents were also exhibited as Ext.1 (Injury
report), Ext.2 (signature of P.W.5 on Seizure list), Ext.2/1 (signature
of another witness Vijay Kumar Mahto on the Seizure list), Ext.3 (FIR)
and Ext.4 (Case Dairy). P.W.5 Surrender Srivastava is the formal
witness who has proved his signature on the Seizure list as Ext.2. This
witness P.W.5 explicitly stated that nothing has been recovered
before him and as such P.W.5 is not competent witness and has no
evidentiary value in absence of examination of the I.O. and in absence
of the formal proof of the Seizure List by its maker or substantially
acquainted personnel. Further, the seizure list materials have not
been proved and marked exhibits during the trial. P.W.7 Uday
Kumar Singh is Advocate's clerk who without knowing and without
having acquainted even with the signature of the concerned Officer-
in-Charge identified his signature in order to bring into the evidence
the formal FIR as Ext.3. Further, P.W.8 Rajender Jha is another absurd
witness being also the Advocate's clerk who has identified the Case-
Diary from paras 1 to 61 which is not admissible in evidence due to
non-examination of I.O. Thus, neither the FIR nor the Seizure List nor
the Case Diary is legally admissible evidence because of non-
examination of the I.O. as these documents have not been proved as
per the prescribed procedure. P.W. 7 stated that he never identified
any hand-writing and nor the signature was signed before him and
Cr. Appeal (SJ) No. 920 of 2003
therefore, it is meaningless to record his deposition as he is not
competent witness. This Court is unable to understand that as to why
the prosecution did not choose to examine any police personnel. It
may be true that in spite of several steps taken, the prosecution could
not procure the attendance of I.O. who investigated the case and
submitted the Charge-Sheet. The non-examination of the
Investigating Officer is fatal to some extent for the prosecution as the
sole accused appellant was deprived of the opportunity to effectively
cross-examine the witnesses for the prosecution and to bring out
contradictions in their statements before the police and as such the
appellant might have suffered prejudice in the present case when the
witnesses P.W.1, P.W.2 and P.W.4 are highly interested witnesses as
P.W.2 is the mother and P.W.1 and P.W.4 are her sons. Since the
correctness of the statement of the witnesses examined during the
course of the investigation and subsequently in the trial, particularly
P.W.1, P.W.2, PW4 & P.W.3 upon which the learned trial court has
relied upon, had not been tested by cross-examining the Investigating
Officer and the learned Trial Court has convicted the appellant
relying upon the statements of P.W.1, P.W.2, PW4 & P.W.3 the
impugned judgment of conviction needs to be evaluated with great
caution.
12. From the testimony of P.W.1- Navin Kumar Singh, who is the
son of the injured witness P.W. 2, it is clearly found that the dispute
arose between both the parties due to throwing away of the slipper of
his brother P.W.4. It has been stated by this witness P.W.1 that after
the incident her mother (the injured P.W.2) was taken to the Police
Station at first and then to the Hospital where the treatment of the
appellant was already going on as categorically deposed by this
witness P.W.1 that the hand of appellant was also cut and got injured.
It establishes the fact that the informant people had also assaulted the
appellant and such the defence taken on behalf the appellant that he
was assaulted by the informant people is found corroborated by the
version of this eye witness P.W.1 who is the son of the informant.
Cr. Appeal (SJ) No. 920 of 2003
Further, the P.W. 2 supporting the case of the prosecution deposed
that when she reached the Police Station she had become unconscious
while as a matter of fact her statement was recorded in the police
station and after recording the same she had put her LTI, it shows
that in order to aggravate the alleged injury she made this statement
before the court inasmuch as if the injuries alleged to have been
inflicted by the appellant were grievous, she would have been taken
to the hospital at first for treatment but instead of doing the same, she
had gone to police station where her statement get recorded and
lodge the FIR at first, and then she went to the hospital where the
appellant was already going on under treatment. P.W.4 Arvind
Kumar Singh (another son of informant P.W.2) examined by the
prosecution and this P.W.4 is said to be the immediate cause of the
occurrence as the dispute arose because of throwing of his slipper by
the son of the appellant. From the deposition of the P.W.4 it is found
that he stated explicitly that the injury was also inflicted upon
appellant by the sword holding by the accused appellant himself in
order to assault the family members of the informant during the
course of the quarrel. But the facts remain to take into consideration
that the appellant was also injured during the course of the scuffle as
vividly corroborated uniformly and consistently by all the witnesses
P.W.1, P.W.2, and P.W.4 who are said to be the eye witnesses and this
fact leads to establish the defence taken on behalf of the accused-
appellant that both the parties were neighbor and a scuffle took place
between the sons of the appellant and the informant on a trivial issue
and the informant P.W.2 and appellant both were injured. Another
witness examined on behalf of the prosecution PW.6 admitted in his
deposition vide Para 3 in the cross Examination that there had been
altercation between the prosecution parties and the appellant. Thus, it
is found that both the parties had quarreled with each other and both
P.W.2 and appellant got injured and as such the dispute between the
children of informant and appellant culminated into the quarrel
Cr. Appeal (SJ) No. 920 of 2003
between the parents of both the parties and the members of both the
parties got injured including the P.W.2 and the appellant.
13. In view of the aforesaid findings on the evaluation of the eye
witnesses P.W.1, P.W.2 & P.W.4, it is well established that it is not
offence punishable under section 326 of IPC as admittedly the
members of both the parties have been injured as the appellant was
already going under the treatment when the injured P.W.2 reached
the Hospital.
14. Apart from the aforesaid findings, it is found from the injury
report that the injuries alleged to have been inflicted were either not
likely to cause death or they were deleterious to the injured persons
as having been inflicted with alleged injuries P.W.2 at first they had
gone to the Police Station and then went to the Hospital indicating
candidly that injuries were not so grievous or dangerous to rush to
the hospital to save the life and hence the alleged hurt is not fall
within the definition of grievous hurt. And thus there in no iota of
evidence to attract the offence punishment punishable U/s 326 I.P.C.
Such injuries cannot be said to be likely to cause death to the person
and further intention and knowledge is also not reflected from the
alleged incident but the facts proved to take into consideration are
that the P.W.2- Gayatri Devi, had sustained injuries inflicted by this
appellant. The defence has also been brought in the cross
examination by virtue of the leading question that the appellant was
also injured and the case was also instituted by them against the
informant people. The discrepancies which have been shown by the
learned defence counsel that by the time she reached to the police
station she had become unconscious, therefore, there was no occasion
to record her statement in the police station and it falsifies the case of
the prosecution. But, this does not jeopardize the case of the
prosecution to the extent that the injuries were there but not grievous
in view of the fact that at first the injured P.W.2 went to Police Station
where her statement was recorded and then she was taken to the
hospital for treatment, and the same has been supported by the two
Cr. Appeal (SJ) No. 920 of 2003
sons of P.W.2, namely, P.W.1 & P.W.4, therefore, these minor
discrepancies in her depositions cannot brush aside the entire
prosecution case.
15. In view of the aforesaid discussions the impugned judgment of
conviction and order of sentence does not deserve to sustain for the
offence punishable under section 326 of IPC. It is founded that the
learned trial court has failed to appreciate the evidence by holding
the conviction of the sole appellant for the offence punishable u/s 326
IPC and this Court alters the conviction of the sole appellant for the
offence punishable under section 324/452 instead of for the offences
punishable under sections 326/452 of IPC and held the appellant
guilty for the offences punishable u/ss 324 and 452 of IPC and thus
conviction of the appellant u/s 326 of IPC is set aside and
consequently the sole appellant is convicted for the offences
punishable u/ss 324 and 452 of IPC. Further on the point of sentence,
it is found that it is the case of 1993 where the incident took place on
06.06.1993 and in this way the sole accused appellant has been
suffering with trauma and misery for such a long period about 28
years and there is nothing on record to say about the criminal history
of the sole appellant. Further, he has been found guilty u/ss 324 &
452 of IPC and from the record it appears that he has already
remained in jail for more than a month, and, therefore, no useful
purpose would be served to send him jail again and in this manner
the sole appellant is awarded sentence of imprisonment for the
period already undergone and further the sole appellant is also
sentenced to fine of Rs. 10,000/-(Rupees ten thousand only) by way
of compensation to be paid to the victim P.W. 2- Gayatri Devi and in
case of default of payment of fine the accused appellant will go for
imprisonment for a period of 06 (six) months. Since, the accused
appellant is on bail and, therefore, 03 (three months) time from today,
is given to him to pay fine by way of compensation imposed as
above.
Cr. Appeal (SJ) No. 920 of 2003
16. The amount of fine Rs. 10,000/-(Rs. Ten thousand only) by
way of the compensation shall be paid by the appellant in the Govt.
exchequer through nazarat of Civil Court, Gumla in order to disburse
the same to the victim P.W.2. Gayatri Devi.
17. The concerned trial court is directed to ensure that if the
amount of fine of Rs. 10,000/- (Rs. Ten thousand only) by way of
compensation is paid by the appellant, the same shall be disbursed to
the victim P.W. 2 - Gayatri Devi by ensuring her presence by the
concerned Trial Court and in case of her death/trace-less, the same
should be disbursed to any close kith and kin of her family members.
18. The appeal is partly allowed in view of the above.
19. Let the LCR be sent back to the concerned court with a copy of
this judgment for its compliance.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 02.12.2021/NAFR
MM/-
