Jharkhand High Court
Sanatan Gope vs The State Of Jharkhand on 13 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 289 of 2003
Sanatan Gope, son of late Panchu Gope, resident of village -
Jharkher, P.S. Katras, P.O. Katras, District - Dhanbad -
Jharkhand ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Ms. Rakhi Sharma, Amicus Curiae
For the Opp. Party : Ms. Lily Sahay, A.P.P
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08/13.12.2021 Heard Ms. Rakhi Sharma, learned Amicus Curiae
appearing on behalf of the petitioner.
2. Heard Ms. Lily Sahay, learned counsel appearing on
behalf of the State.
3. The present criminal revision application has been filed
for setting aside the judgement dated 12.12.2002 passed by 12th
Additional Sessions Judge, Dhanbad in Criminal Appeal No.96
of 1995 arising out of the order passed by learned Judicial
Magistrate, 1st Class, Dhanbad in G.R. Case No.1072 of 1982.
4. Learned Amicus Curiae for the petitioner submits that the
petitioner was convicted by the learned trial court for offence
under Sections 324 as well as 326 of IPC, but the learned
appellate court refused to uphold the conviction of the
petitioner under Section 326 of IPC and only the conviction
under Section 324 of the IPC was upheld and the appeal was
dismissed.
5. The learned Amicus Curiae submits that altogether six
witnesses were examined. P.W. 5 is the father of the informant,
P.W. 6 is the informant of the case, P.W. 1 and P.W.2 are formal
witnesses. She submits that two independent witnesses i.e.,
P.W.3 and P.W.4 have not supported the prosecution case and
they have been declared hostile. Learned amicus has also
submitted that even the Doctor, who had examined the victim,
was not examined by the learned court below. She submits that
the petitioner was ultimately convicted under Section 324 IPC
and was sentenced to undergo rigorous imprisonment for a
period of six months. Learned counsel submits that the
impugned judgements are perverse, in as much as, the
independent witnesses have turned hostile and the Doctor has
also not been examined before the learned court below to prove
the injury. Without prejudice to the aforesaid submission, the
learned Amicus has submitted that the incident is of 02.12.1982
and more than 38 years have elapsed from the incident. She
submits that the statement of the petitioner was recorded on
16.06.1995 under Section 313 of Cr.P.C, and he had declared his
age as 40 years which has been recorded even in the impugned
judgement passed by the learned trial court dated 28.06.1995.
6. She submits that during the pendency of the present
case, the petitioner had surrendered on 02.05.2003 and was
directed to be released on bail vide order dated 20.05.2003 and
his bail bond was accepted on 24.05.2003 by the learned court
below and thus, the petitioner has remained in custody for
more than 20 days. The learned amicus has submitted that
considering the facts and circumstances of this case and the fact
that the petitioner has suffered the criminal case for a long time
and no minimum sentence as such prescribed for offence under
Section 324 of IPC, the sentence of the petitioner be modified.
7. The learned counsel appearing on behalf of the State
while opposing the prayer has submitted that there are
concurrent findings recorded by the learned courts below and
P.W.6 is the informant and victim and P.W.5 is the father of the
informant, who had accompanied the informant at the time and
place of occurrence and in fact P.W.5 is the eye witness to the
occurrence. She submits that the Doctor who had examined the
victim have expired and that is why he could not depose before
the learned court below. She has submitted that the victim as
well as the eye witness have fully supported the prosecution
case and were duly cross examined and they remained
consistent in their evidence and corroborated each other. The
learned counsel submits that in such circumstances, the learned
trial court had convicted the petitioner under Section 324 as
well as 326 of IPC, but the appellate court has upheld the
conviction only under Section 324 of IPC. The learned counsel
submits that so far as sentence is concerned, it is for the Court
to take a call in the matter. However, it is not in dispute that 38
years have elapsed from the date of the incident and the
petitioner is 67 years of age and there is no previous conviction
of the petitioner as recorded in the impugned judgements.
8. After hearing the learned counsels for the parties, this
Court finds that as per the prosecution case on 02.12.1982 at
about 2 o'clock in the day time, at that point of time, the
informant Parmanand Gope was carrying stacks of paddy on
his bullock cart and when he had reached about 200 yards from
Hanuman Bhatta at Rajganj Katras road, the petitioner with
another unknown person approached him and enquired about
his she buffalo, when the informant declined to have any
information about it, the petitioner attacked him with tangi
resulting in injury on shoulder, hand and finger. It was also
mentioned that Mathura Mahto and Saddique Mian i.e., P.Ws. 3
and 4 were also present. The reason for dispute was that the
informant is the brother in law of the accused and he suspected
that the informant was instrumental in his wife being taken
away by his father in law.
9. On the basis of fardbeyan, the case was registered as
Katras P.S. Case No.296 of 1982 and police submitted charge
sheet under Sections 324 and 326 of IPC and the charges were
also framed under the said sections. The prosecution examined
altogether six witnesses P.W. 6 is the informant of the case and
during his evidence, he has stated that the incident took place at
3.30 in the evening, when he reached near Hanuman Bhatta, the
petitioner came and enquired from him about his she buffalo
and when he declined any information, he assaulted him with
tangi which resulted in cut injury on his hand and shoulder. He
has also stated that his statement was recorded in the hospital
and he identified the petitioner. This witness has been cross
examined and he has stated in his cross examination also that
his statement was recorded in the hospital and he stated that he
had remained in hospital for four days. The learned appellate
court found that this witness has corroborated his earlier
statement given to the police by way of fardbeyan and there
was no material contradiction.
10. P.W.5 is the father of the informant, who was along with
the informant at the time of the incident. He has also fully
supported the prosecution case with regard to time and place of
occurrence and he stated that the petitioner had given tangi
blow to his son Parmanand (P.W.5) resulting in injuries on his
chest, hand and finger. He has further stated that on hulla being
raised, P.W.3 and P.W.4 reached at the place of occurrence and
the accused petitioner fled away. He has further stated that
P.W.5 was sent to hospital and P.W. 3 and P.W. 4 had
accompanied him to the hospital. He has been examined on the
point of previous enmity and he has stated that there was no
previous enmity with the accused. He denied the suggestion
that Parmanand wanted to establish illicit relationship with
Sanatan's wife. The learned court below found that the
evidence of P.W.5 and P.W. 6 were fully corroborated to each
other. So far as P.W.3 and P.W. 4 are concerned, though they
are independent witnesses, but they have not denied the fact
that they had seen the informant Parmanand in the hospital in
injured condition. P.W.1 and 2 are formal witnesses. It has also
come on record that the Doctor, who had treated the victim
could not be testified as he had already expired and such fact
has been brought on record as per order dated 09.05.1995. The
learned trial court recorded that so far as the evidence of P.W.5
and P.W.6 are concerned, there is nothing in the evidence to
show any circumstance to discard their evidence and that P.W.
3 and P.W. 4 came there and in the meantime, the petitioner
had fled away and thus, from the evidence of P.W.5 and P.W. 6,
there was none to see the occurrence except P.W. 5 and P.W.6,
who have fully supported the prosecution case and
corroborated the injury suffered by the informant P.W.5. The
learned trial court also considered the reason for non-
examination of the Doctor, who had examined the injured and
was of the view that non-examination of Doctor was not fatal to
the prosecution case. The learned trail court convicted the
petitioner for offence under Sections 324 and 326 of IPC.
11. So far as the learned appellate court is concerned, the
appellate court also considered the evidences on record. The
learned appellate court gave the benefit of doubt in connection
with conviction under Section 326 IPC. The learned appellate
court found that the nature of injury suffered by the informant
on account of non-examination of the Doctor due to his death
may be doubted, and was of the view that in spite of death of
Doctor, the injury could still be proved, but the injury report
was not exhibited and considering this aspect of the matter, the
learned appellate court did not uphold the conviction of the
petitioner under Section 326 of the IPC, but upheld the
conviction under Section 324 of IPC by holding that there was
no reason to disbelieve the prosecution case that the informant
had suffered injury at the hand of the petitioner. The finding of
the learned appellate court is quoted in para 9 which is as
under:
"9. The combined effect of the testimonies adduced on behalf of
the prosecution does not leave any doubt in my mind regarding the
incidence in which Parmanand Gope received injuries on his hand
finger and arm. As far as the factum of incidence is concerned, apart
from the victim informant we have the testimony of P.W.-5 his father
who was a direct eye witness to the incidence. The deposition of these
two witnesses are consistent and is not tainted by exaggeration or
with any material contradiction. Consistency in statement is an
indication of truth in the testimony. Simply because P.W.5 is the
father of P.W.6 cannot be a ground for discarding his testimony when
he has stood the test of cross examination, P.W.4 and P.W.3 are not
an eye witness to the incidence and are mere hearsay to the factum of
incidence but they too had witnessed the injuries on the person of the
informant. Taking the evidence in its totality I do not see any reason
to disbelieve the prosecution case. The only area of doubt is regarding
the nature of injuries. The Doctor has not been examined because of
his death. The injury report could have been still proved by the
prosecution under Section 32(2) of the Evidence Act. As injury report
has not been exhibited, I am not inclined to uphold the conviction
under Section 326 of the I.P.C."
12. This Court finds that the learned courts below have
considered their evidences on record and have given
concurrent findings so far as the conviction of the petitioner
under Section 324 of IPC is concerned. There is no illegality or
perversity or material irregularity in conviction of the petitioner
under Section 324 of the IPC and accordingly, his conviction
under Section 324 IPC is hereby upheld.
13. So far as the sentence is concerned, it is not in dispute
that 38 years have elapsed from the date of the incident, the
present age of the petitioner is 67 years and the petitioner has
remained in custody for more than 20 days at the stage of
revision petition and there is no minimum sentence as such
prescribed under Section 324 of IPC, therefore, the sentence of
the petitioner is hereby modified and is reduced to the period
already undergone by him in custody with a fine of Rs.15,000/-
to be deposited by the petitioner before the learned court below
within a period of three months from the date of
communication of this judgment to the learned court below .
The fine amount so deposited is directed to be paid to the
victim of the case i.e., the informant, after due identification. In
case, the aforesaid fine amount is not deposited within the
stipulated time frame, the petitioner would serve the sentence
already imposed by the learned court below.
14. The present criminal revision is disposed of with the
aforesaid modification of sentence .
15. Pending interlocutory application, if any, is closed.
16. This Court appreciates the efforts of Ms. Rakhi Sharma,
the learned Amicus who has meticulously prepared list of dates
and a detailed notes on the prosecution evidence and ably
assisted the Court arguing this criminal revision on behalf of
the petitioner.
17. The Secretary, Jharkhand High Court Legal Services
Committee shall reimburse the learned Amicus on submission
of bill(s). She shall be paid Rs.5500/- for each effective date of
hearing, but subject to the cap as provided under the
Notification dated 23.11.2017.
18. Let the lower court records be sent back to the court
concerned.
19. Let a copy of this order be communicated to the learned
court below through E-mail/Fax.
(Anubha Rawat Choudhary, J.)
Saurav
