Nand Kishore Singh @ Nankeshar ... vs The State Of Jharkhand
2021 Latest Caselaw 4905 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Appellate Jurisdiction)

                      Cr. Appeal (S.J.) No. 206 of 2010
(Against the judgment of conviction dated 16.02.2010 and the order of sentence dated
17.02.2010, passed by the learned 5th Additional Sessions Judge, (F.T.C.), Dumka in
Sessions Case No. 78 of 2009)

1. Nand Kishore Singh @ Nankeshar Singh
2. Devnarayan Singh
3. Suryu Singh
   Sl. No. 1 to 3 all sons of Late Dhanraj Singh
4. Madan Mohan Singh, son of Late Badri Singh
5. Jagadish Singh, son of Late Chigar Singh
6. Bisheshar Singh @ Bisheshwar Singh
7. Puran Singh
   Sl. No. 6 & 7 both sons of Late Bundeli Singh
8. Santlal Singh, son of Late Harihar Singh
9. Godo Singh
10.Jitendar Singh
   Sl. No. 9 & 10 both sons of Late Mithal Singh
11.Kaleshwar Singh
12.Anantlal Singh
   Sl. No. 11 & 12 both sons of Bisheshar Singh @ Bisheshwar Singh
13.Arjun Singh, son of Puran Singh
   All are residents of Village- Jhapania, P.O. & P.S.- Saraiyahat, District-
   Dumka.                                             ...... . ...... Appellants
                                    -Versus-
The State of Jharkhand                                ...... ..... Respondent

                       Heard through Video Conferencing
                                    ------

PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA

------

          For the Appellants      : Mr. Rishi Pallava, Advocate
          For the State           : Mrs. Nehala Sharmin, APP
                                        ------
C.A.V. on 29.01.2021                               Pronounced on 17/12/2021

Heard Mr. Rishi Pallava, the learned counsel for the appellants as well as Mrs. Nehala Sharmin, the learned APP appearing on behalf of the State.

2. Counter Affidavit has been filed by the State, documented by memo no. 77/2020 dated 30.01.2020 of the officer-in-charge of Saraiyahat P.S. and endorsement of mukhiya of Mandaldih gram panchayat stating

-2- Cr. Appeal (S.J.) No. 206 of 2010

therein that Appellant No.2 Devnarayan Singh, Appellant No.5 Jagadish Singh, Appellant No.6 Bisheshar Singh and Appellant No.7 Puran Singh have died. Hence, appeal of these appellants stands abated.

3. The present criminal appeal has been preferred by the appellants against the judgment of conviction dated 16.02.2010 and the order of sentence dated 17.02.2010, passed by the learned 5th Additional Sessions Judge, (F.T.C.), Dumka in Sessions Case No. 78 of 2009, whereby and whereunder, the appellants were convicted under Sections 307/427/149 of the Indian Penal Code and sentenced to undergo RI for five years each under Sections 307/149 IPC. They were further sentenced to undergo RI for one year each under Section 427/149 IPC and the sentences were directed to run concurrently.

4. The prosecution case, in brief, as per the written information dated 27.11.2007 of the informant PW-6 Rasaili Devi, wife of PW-5 Manager Singh, resident of village: Jhapania, P.S. Saraiyahat, District: Dumka is that at about 5.00 am on 27.11.2007, all the thirteen appellants variously armed with lathi, danda, rod and sabbal came and started abusing her. Informant further stated that Madan Mohan and Santlal Singh assaulted her with lathi danda causing injury on left side of her back and forehead and when her son Sahadev Singh (PW-1) and husband Manager Singh (PW-

5) came to rescue her, then Kaleshwar Singh, Arjun and Jitendar Singh assaulted them with lathi and danda as a result they also sustained injuries. Her younger sons Bhola Singh (PW-3) was also assaulted and other accused persons pelted stones on roof of her house causing damage of the roof tiles. The cause behind the occurrence is land dispute.

5. On the basis of the written report of the informant F.I.R dated 27.11.2007 under Sections 147, 448, 323, 427 and 504 of IPC was registered being Saraiyahat P.S. Case.No-188/07. After completion of the investigation, charge-sheet against the appellants under Sections 147,448,323,504 and 427 IPC, was filed and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed under sections 427/149 and 307/149 of IPC against the appellants and trial was held. At the conclusion of the trial, appellants were convicted and sentenced as aforesaid. Hence, this appeal.

6. The prosecution has examined altogether eight witnesses in

-3- Cr. Appeal (S.J.) No. 206 of 2010

support of its case out of whom PW-6 Rasaili Devi is the informant of the case; PW-1 Sahadev Singh is the son of the informant; PW-2 is Manoj Kumar Singh; PW-3 Bhola Singh is also the son of the informant; PW-4 is Sambhu Singh; PW-5 Manager Singh is the husband of the informant; PW- 7 is Abhimanyu Singh, who is the Investigating Officer of the case and PW- 8 is Dr. Chaudhary Chandrasekhar Prasad.

7. PW-6 Rasaili Devi is the informant of the case. She has stated in

her evidence that on the day of occurrence, she was sweeping at about 5.00- 6.00 am, in the meanwhile, Jagadish Singh, Santlal, Godo, Jitendar, Madan Mohan, Kaleshwar, Nandlal, Biseshwar Singh, Devnaryan, Nand Kishore and Sarju Singh altogether eleven persons came to her home and Jagadish abused her. Her husband (PW-5) came then they asked her to vacate the house. Accused persons entered in their house and Jagadish assaulted her on head causing bleeding injury. Kaleshwar assaulted her on waist, Manager (PW-5) was assaulted by Santlal with rod causing fracture of his left hand, Madan assaulted him on his thigh. Her both sons Sahadev and Bhola raised halla, then they were also assaulted and accused had damaged the tiles of her house. They went to Saraiyahat P.S. and gave statement to the police. Police sent them to the doctor for treatment. In her cross-examination informant stated that Jagadish had donated five katha of land to her for construction of the house. She has a house also on the land of her father-in- law in which her son Sahadev (PW-1) and daughter-in-law lives. Jagadish wants to evict her from the house by claiming the same as his own. Donation deed of the land was affidavited. They have no previous enmity with accused persons and Manoj (PW-2) and Sambhu (PW-4) had come on halla.

8. PW-5 Manager Singh is the husband of the informant. PW-5 has stated in his evidence that on the day of occurrence at 5-6 am in the morning his wife was sweeping and in the meantime accused persons armed with rod, danda and lathi came there and said why she was sweeping and abused her. Accused persons chased them, then they rushed inside their house but, the accused also entered into their house. Madan Mohan and Santlal assaulted him with rod causing fracture of his hand and he also sustained injury on his head. Jagadish and Kaleshwar had assaulted his wife with rod causing bleeding head injury. Accused persons had damaged the

-4- Cr. Appeal (S.J.) No. 206 of 2010

tile house. PW-5 in his cross-examination stated that the disputed land was donated to them by Jagadish Singh for construction of house and the document was prepared in S.D.O. Court. He cannot say about the entry of his name in the record of rights. They have constructed the house on the disputed land but Jagdish Singh claims the land as his own.

9. PW-1 Sahadev Singh is the son of the informant. PW-1 has stated in his evidence that on the day of occurrence at 6:00 am. in the morning accused Jagadish Singh, Jitendar Singh, Godo Singh, Santlal Singh, Madan Singh Mohan Singh , Biseshwar Singh, Kaleshwar Singh, Anantlal Singh, Nand Kishore Singh, Sarju Singh and Devnaryan Singh, variously armed with lathi, danda and rod entered into their home and assaulted his mother. Madan Mohan and Santlal had assaulted his mother on her head causing bleeding head injury. His father was assaulted by Kaleshwar Singh, Nand Kishore Singh and Sarju Singh with rod causing head injury and fracture of left hand. He was assaulted by Jitendar, Godo Singh and Jagadish with lathi on his shoulder and his brother Bhola Singh was assaulted by Devnarayan, Kaleshwar, Nandlal Singh on his mouth. In his cross-examination PW-1 stated that the occurrence took place in the courtyard of his house. He did not know who was recorded tenant of the 10 decimal of the disputed land. The land was given by Jagadish Singh and they have no previous land dispute.

10. PW-3 Bhola Singh is another son of the informant. PW-3 has stated in his evidence that accused persons came and abused his mother. Jagadish and Madan Mohan assaulted his father by rod on his left hand causing fracture and assaulted on his back, thigh and head. His mother was assaulted by Santlal and Kaleshwar.

11. PW-2 is Manoj Kumar Singh and PW-4 is Sambhu Singh and both had reached the house of the informant on halla. PW-2 stated that accused persons entered into the house of the informant and assaulted the informant and her husband. In his cross-examination PW-2 stated that when they reached, the accused started fleeing away. PW-4 Sambhu Singh stated in his evidence that accused persons were going away after beating Manager Singh. Manager Singh's hand was broken and blood was oozing out from his head. Rasaili Devi sustained injury on her left hand and head. In his cross-examination PW-4 stated that he was also one of the accused in

-5- Cr. Appeal (S.J.) No. 206 of 2010

the case filed by the informant Rasaili Devi.

12. PW-7 is S.I. Abhimanyu Singh, the Investigating Officer of the case. Investigating Officer has stated in his evidence that on 27.11.2007 he was posted at Saraiyahat Police Station as A.S.I. Investigating Officer stated that endorsement on the written report of Rasaili Devi was in his hand writing and signature and his endorsement on the written report was marked as Ext.-1 and formal FIR which was marked as Ext.-2. Investigating Officer further stated that he issued the injury requisition of the informant and Manager Singh and sent them to Saraiyahat hospital for treatment. He visited the place of the occurrence which is, as per the informant, is house of informant made of straw and tiles and in the courtyard of this house the occurrence of assault was said to have taken place. He had not seized the tiles and did not take statement in this regard.

13. (i) PW-8 Dr. Choudhary Chandrashekhar Prasad had examined the informant PW-6 Rasaili Devi and found following injuries on the person of the informant:

(i) bluish bruise 4''x1" with tenderness at the left shoulder joint;

(ii) multiple bluish bruise of various seized in the back;

(iii) swelling 2"x2" with abrasion ¼" x ¼" on the top in the right side of forehead and;

(iv) abrasion ¼"x 1/4" with tenderness in the right wrist joint.

Doctor opined that all the injuries caused to PW-6 were caused by hard and blunt object and injury no. (ii) and injury no. (iv) were simple in nature. Later on doctor had prepared the supplementary report on 05.01.2008 and said that injury no. (i) was grievous. Doctor had proved the injury report of PW-6 informant which was marked as Ext.-3.

(ii) On the same day PW-8 Doctor had examined PW-5 Manager Singh and found following injuries on his person

(i) Swelling 3" x 3" with tenderness in the left side of forehead;

(ii) swelling 4"x 4" with tenderness in the left wrist joint;

(iii) tenderness in the left lower leg.

Doctor opined that all the injuries caused to PW-5 were by hard and

-6- Cr. Appeal (S.J.) No. 206 of 2010

blunt object and injury no. (iii) was simple in nature and injury no. (i) and

(ii) were grievous in nature. Doctor had proved the injury report of PW-5 which was marked as Ext.-3/2.

ARGUMENTS ON BEHALF OF APPELLANTS

14. Mr. Rishi Pallava, the learned counsel for the appellants first and foremost has argued that the conviction has been done under sections 307 and 427 IPC read with section 149 IPC, but, the charge-sheet was not under this Sections but the convictions has been done so and this is only being through the application of the judicial mind and hence, convictions under these sections have occurred, otherwise no offence under these sections can actually be made out. Learned counsel has also submitted that the informant PW-6 Rasaili Devi had herself not given the written report and she had merely given her thumb impression which suggests that the entire accusations or allegations are actually based on a manufactured case against the appellants. Learned counsel for the appellants further submitted that in her deposition only the name of eleven persons have occurred out of whom the name of Puran Singh and Arjun Singh have not occurred and moreover, the said Puran Singh has passed away.

15. Learned counsel has then submitted that there is much variation, inconsistencies or contradictions in the evidence of the prosecution witnesses and particularly in the crucial evidence of who have assaulted whom or where they had assaulted. There is significant variance or contradictions from the version in the FIR amongst the prosecution witnesses and particularly, the key prosecution witnesses themselves and hence, the conviction against the appellants is liable to be set-aside. Learned counsel for the appellants has pointed out the evidence of the informant PW-6 Rasaili Devi and submitted that in her written information dated 27.11.2007 addressed to the officer-in-charge, Saraiyahat, Dumka, Police station, informant has stated that Madan Mohan Singh and Santlal Singh had assaulted her with lathi-danda causing injury on the left side of her back and forehead but in variance and contradiction in her deposition, informant has deposed that Jagadish had assaulted her on head while Kaleshwar Singh had assaulted her on waist and this is clearly different names as given to the assailants in the written report, who are Madan Mohan Singh and Santlal Singh.

-7- Cr. Appeal (S.J.) No. 206 of 2010

16. Learned counsel has then referred to the deposition of the husband of informant PW-5 Manager Singh. PW-5 has in his evidence deposed that Madan Mohan and Santlal had assaulted him with rod, which caused fracture of his hand and injury on his head. Learned counsel points out that in the written report assault on PW-5 Manager Singh, is said to be done by Kaleshwar Singh, Arjun Singh and Jitendar Singh with lathi danda leading to injuries. Learned counsel, therefore, says that the persons indicated by PW-5 in his evidence is at variance or in contradictions with the written report. This would however mean that as per the FIR, PW-5 was assaulted by Kaleshwar Singh, Arjun Singh and Jitendar Singh, therefore, even the evidence of the informant's husband is at variance or in contradiction with his own evidence as regarding the assailants that have been named in the FIR or written report and in his evidence.

17. Regarding the assault on his informant wife, the husband PW-5 has deposed that Jagadish and Kaleshwar had assaulted his wife with rod leading to bleeding injury on her head. Learned counsel says that while this may be consistent with the evidence of hs wife Rasaili Devi, who had deposed that Jagadish and Kaleshwar had assaulted her. However, it is at variance or in contradiction with the written report or FIR of the informant wherein it is stated that Madan Mohan and Santlal Singh had assaulted the informant PW-6 Rasaili Devi with lathi and danda causing injury on the left side of her back and forehead.

18. PW-1 Sahadeo Singh, who is the son of the informant, has deposed that his father was assaulted by Kaleshwar Singh, Nand Kishore Singh and Saryu Singh with rod leading to head injury and fracture on left hand. This is not consistent with the FIR wherein though Kaleshwar Singh is consistently named in the deposition but in the FIR Arjun Singh and Jitendar Singh have been named by his mother as assailant of his father. Learned counsel, therefore, says that even the son does not know who the assailants of his father were as names are different in the FIR. PW-1 Sahadeo Singh has further stated in his evidence that he himself was assaulted by Jitendar, Godo Singh and Jagdish Singh with lathi on his shoulder and his brother PW-3 Bhola Singh was assaulted by Devnarayan, Kaleshwar and Nand Lal on his mouth. Learned counsel says that no such assault is indicated in the FIR or written report by the informant on his sons

-8- Cr. Appeal (S.J.) No. 206 of 2010

PW-1 Sahadeo Singh as well as PW-3 Bhola Singh and hence this is development and therefore, evidence of PW-1 cannot be relied upon.

19. Referring then to the evidence of PW-3 Bhola Singh, who is another son of the informant, learned counsel points out that he has deposed that Jagadish and Madan Mohan had assaulted with rod to his father PW-5 on his left hand leading to fracture and had also assaulted on his back, thigh and head. Learned counsel for the appellants points out that this is again at variance or in contradictions with the written report where the assailants of the father are Kaleshwar Singh, Arjun Singh and Jitendar Singh while PW-3 has deposed that Jagadish and Madan Mohan as being the assailants of his father and were totally different persons. Hence, the evidence of the PW-3 or the son of the informant cannot be taken at its face value and thus, weakening or demolishing the prosecution case. Learned counsel for the appellants has further submitted that this witness PW-3 has not deposed any injuries inflicted on either his brother or himself in his examination-in- chief.

20. Regarding the evidence of PW-2 Manoj Kumar Singh, learned counsel for the appellants has submitted that he is hearsay witness as in para-4 of his evidence PW-2 has deposed that he had heard from the injured that they were assaulted and hence, evidence of this witness may be discarded. Learned counsel for the appellants then referred to the evidence of PW-4 Sambhu Singh and submitted that PW-4 saw the assailants when they were going away so he could not have seen the assault made on PW-5 Manager Singh or on his informant wife. Therefore, PW-4 is also a hearsay witness.

21. Referring then to the evidence of PW-8 Dr. Choudhary Chandrashekhar Prasad, learned counsel for the appellants, points out that the written information is dated 27.11.2007 and the occurrence is of the same day, but, doctor has in para-6 of his evidence indicated that he had prepared supplementary report on 05.01.2008. Learned counsel, therefore, says that there is considerable difference in the date when the first examination of the alleged injured took place and the supplementary report dated 05.01.2008 was prepared, leading to doubts and suspicions regarding the authenticity of the supplementary report. Learned counsel for the appellants has further submitted that the report of the Deputy

-9- Cr. Appeal (S.J.) No. 206 of 2010

Superintendent, Dr. S.N. Jha has not been placed on record or exhibited which is apparently the basis of the supplementary report. Therefore, when this doctor i.e. Dr. S.N. Jha and his report has not been brought on record then whether the medical evidence can be relied upon is an important question.

22. Learned counsel for the appellants further submits that there was delay even between the examination by first doctor on 27.11.2007 and subsequently the examination by the second doctor i.e. Dr. S.N. Jha on 06.12.2007 which would again raise suspicion on the medical evidence itself. Learned counsel for the appellants has also pointed out to para-15 of the evidence of PW-8 and pointed out that this doctor has himself stated that the report of Dr. S.N. Jha is not before him and the X-ray report is also not before him. Further, learned counsel submits that as per para-15, PW-8 doctor himself has deposed that the injuries may be caused due to fall, therefore, the appellants cannot be convicted of the aforesaid offences. Learned counsel for the appellants submitted that PW-5 and PW-6 had an accidental fall or injuries were caused due to some accidental mishap, but, admittedly there was dispute between the parties over land and taking advantage of the accidental injuries the allegations have been made against the appellants. PW-8 doctor has rightly said that the injuries may be result of fall.

23. Learned counsel reiterates since the doctor has said that the injuries may be the result of fall, hence, even if injuries are said to be grievous, offence under Section 307 IPC surely cannot be made out and given the background of enmity and the grounds raised that this is a concocted case then the offences under section 427/149 IPC also cannot be sustained. Learned counsel for the appellants has also submitted that another reason why Section 307 IPC cannot be made out is that there is no reference to any deadly weapons or sharp pointed weapons like knife, swords etc being used in the alleged crime, therefore, the offence under Section 307 IPC cannot be sustained.

24. Learned counsel also argued that PW-5 father has not indicated any injuries on his two sons PW-1 and PW-3 which would also indicate the lack of intention on behalf of the so-called assailants or appellants. Further, first and foremost it is already said that it could very well have been the

-10- Cr. Appeal (S.J.) No. 206 of 2010

informant party who have grouse to settle over the land disputes and having met with the accident, resorted to use that in leveling false accusations or allegations against the appellants' side. Learned counsel for the appellants also submitted that since no seizure was made of any incriminating articles or items that could convey involvement of the appellants under Sections 307 and 427 IPC.

ARGUMENTS ON BEHALF OF STATE

25. Mrs. Nehala Sharmin, the learned APP appears on behalf of the State, on the other hand, argues from the evidence of the doctor PW-8 that there is no confusion regarding the dates. The date of occurrence is 27.11.2007 and on the same day, PW-8 Dr. Choudhary Chandrashekhar Prasad had examined the informant PW-6 Rasaili Devi and her husband PW-5 Manager Singh. Doctor has indicated four injuries on the person of the informant Rasaili Devi which are listed as (i) bluish bruise 4''x1" with tenderness at the left shoulder joint (ii) multiple bluish bruise of various seized in the back (iii) swelling 2"x2" with abrasion ¼" x ¼" on the top in the right side of forehead and; (iv) abrasion ¼"x 1/4" with tenderness in the right wrist joint. Learned APP has then submitted from para-6 of the deposition of the doctor that on 05.01.2008, he had prepared a supplementary report which was based on the report of one Dr. S.N. Jha and in his report Dr. S.N. Jha had indicated that there was fracture of body of left scapula and hence, PW-8 Doctor had concluded that the injury No.1 was grievous in nature. Learned APP, therefore, says that there are grievous injuries on the informant PW-6 Rasaili Devi, therefore, the offence under Section 307 IPC is definitely made out and hence trespass into the house or the premises resulting in damage of tiles is also made out and hence, offence under Section 427 IPC is proved.

26. Learned APP further points out from the evidence of the doctor PW-8 and pointed out para-8 and submits that the injuries sustained by PW- 5 Manager Singh are given as (i) Swelling 3' x 3' with tenderness in the left side of forehead (ii) swelling 4"x 4" with tenderness at the left wrist joint

(iii) tenderness in the left lower leg. Learned counsel submits that in para- 12, doctor has deposed that he had prepared the supplementary report which is again apparently based on the report of one Dr. S.N. Jha and as per

-11- Cr. Appeal (S.J.) No. 206 of 2010

para-12, PW-8 doctor has deposed that PW-5 Manager Singh, had fracture of left frontal bone of head and fracture of lower 1/3rd of left sharp of ulna bone. Further, in para-13 the doctor has opined that injury Nos.1 and 2 were grievous in nature and caused by hard and blunt object. Learned APP, therefore, submits that even the injuries of the informant's husband are grievous in nature and, therefore, the appellants cannot escape the convictions under Sections 307 and 427 read along with Section 149 IPC.

FINDINGS

27. Having heard the learned counsels for the parties, gone through the evidences and records of the case, I find that in this case 13 appellants were convicted under sections 307/427/149 of IPC. The genesis of the case is land dispute which according to the informant PW-6 Rasaili Devi is that appellant no.5 Jagadish Singh (now deceased), had donated to them five katha of land for construction of house and subsequently Jagdaish Singh wanted to evict them from the aforesaid land and for this appellants had assembled and assaulted them.

28. On going through the written report and evidence of the case, I find that two witnesses i.e. PW-6 informant Rasaili Devi and her husband PW-5 Manager Singh were injured in the assault by the appellants. But, there are certain development and inconsistencies in the manner of assault by the prosecution witnesses. Informant had stated in her written report that her two sons PW-1 and PW-3 had also sustained injury in the assault by the appellants, but there is no injury report of the doctor or even injury requisition of the police to prove the injury of PW-1 and PW-3. Hence, allegation of assault on PW-1 and PW-3 are only an exaggeration.

29. Further, informant PW-6 in her written report has stated that she was assaulted by Madan Mohan Singh (appellant no.4) and Santlal Singh (appellant no.8) by lathi-danda. But, in her deposition informant has stated that she was assaulted by Jagadish Singh (appellant no.5 now dead) and Kaleshwar Singh (appellant no.11). Again, regarding assault on her husband PW-5 Manager Singh, informant in her written report has stated that her husband was assaulted by Kaleshwar Singh (appellant no.11), Arjun Singh (appellant no.13) and Jitendra Singh (appellant no. 10) . But, in his deposition PW-5 Manager Singh has deposed that he was assaulted by

-12- Cr. Appeal (S.J.) No. 206 of 2010

Madan Mohan Singh (Appellant No.4) and Santlal Singh (Appellant No.8).

30. However, on going through the evidence of the doctor PW-8, who had examined the injured informant PW-6 and her husband PW-5, I find that doctor had found four injuries on the person of informant PW-6 Rasaili Devi (i) bluish bruise 4''x1" with tenderness at the left shoulder joint; (ii) multiple bluish bruise of various seized in the back; (iii) swelling 2"x2" with abrasion ¼" x ¼" on the top in the right side of forehead and;

(iv) abrasion ¼"x 1/4" with tenderness in the right wrist joint. Regarding injury no (ii) and (iv) sustained by the informant, doctor opined that it was simple in nature and regarding injury no (i) of the informant doctor had kept his opinion reserved. Doctor also opined all the above injuries were caused by hard and blunt substance. But, later on PW-8 doctor had prepared the supplementary injury report of Rasaili Devi on the basis of report of one Dr. S.N. Jha Deputy Superintendent, Dumka and in his supplementary report PW-8 doctor opined that injury no. (i) was grievous in nature.

31. Doctor had also found three injuries on the person of PW-5 Manager Singh (i) Swelling 3" x 3" with tenderness in the left side of forehead; (ii) swelling 4"x 4" with tenderness in the left wrist joint; (iii) tenderness in the left lower leg. Doctor, opined injury no. (iii) caused to Manager Singh was simple and doctor opined that all the above injuries were caused by hard and blunt substance and regarding injury no. (i) and

(ii) opinion was kept reserved. Thereafter, PW-8 doctor prepared the supplementary injury report of PW-5 Manager Singh and on the basis of report of aforesaid Dr. S.N. Jha, PW-8 doctor opined that injury no. (i) and

(ii) sustained by PW-5 Manager Singh were grievous in nature caused by hard and blunt object.

32. In his cross-examination at para-15, PW-8 doctor deposed that neither the report of Doctor S.N. Jha was before him nor the X-Ray plates. Though Dr. S.N. Jha, was not examined, but, PW-8 doctor had relied on the report of Dr. S.N. Jha, Deputy Superintendent, Dumka and had opined that the injury no. (i) sustained by the informant PW-6 and injury no. (i) and (ii) sustained by informant's husband PW-5 were grievous in nature becomes doubtful in absence of report of Dr. S.N. Jha, on the basis of which PW-8 doctor had opined that aforesaid injuries caused to PW-5 and PW-6 were grievous in nature. Even, the report of Dr. S.N. Jha was not exhibited and

-13- Cr. Appeal (S.J.) No. 206 of 2010

Dr. S.N. Jha was also not examined by the prosecution. At least in absence of non-examination of Dr. S.N. Jha, report of Dr. S.N. Jha should have been exhibited but prosecution did not do so. Learned trial court has also in the impugned judgment at para-7 had noted that X-Ray plates and the report prepared by the Dr. S.N. Jha were not before the doctor who had examined both the injured PW-6 and PW-5. The question arises that when the report of the second doctor was not before the PW-8 doctor including the X-Ray plates and neither Dr. S.N. Jha was examined then, can total reliance be placed on the opinion of PW-8 Dr. Choudhary Chandrashekhar Prasad regarding his opinion that some of the injuries sustained by PW-5 and PW-6 were grievous. I find that opinion of PW-8 Doctor, regarding some grievous injuries sustained by the informant PW-6 and informant's husband PW-5 raises doubt and has caused prejudice to the appellants.

33. Lastly, fact remains that in view of ocular evidence of injured informant PW-6 and injured PW-5, which is corroborated by the medical evidence of doctor viz. Ext.-3 and Ext.-3/2, it can be safely inferred that injuries sustained by both PW-5 and PW-6 were simple in nature, though, there is some inconsistency regarding the manner of assault in fardbayan and deposition of the injured. Injured PW-6 has specifically deposed that she was assaulted by Jagadish Singh (appellant no.5, appeal abated) and Kaleshwar Singh (appellant no.11) and injured PW-5 has specifically deposed that he was assaulted by Madan Mohan Singh (appellant no.4) and Santlal Singh (appellant no.8). Further, it is to be noted that as per the FIR thirteen accused persons were named and all these thirteen accused persons were sent up for trial but, apart from appellant no.-4 (Madan Mohan Singh), appellant no.-5 (Jagadish Singh, appeal abated), appellant no.-8 (Santlal Singh) and appellant no.-11 (Kaleshwar Singh), no specific assault has been attributed to the remaining appellants. There is no reference to any deadly weapons or pointed weapons like knife, sword or bhujali etc. used in the assault and the injuries are anyway attributed to hard and blunt substance or objects. Hence, conviction of Madan Mohan Singh (appellant no.4), Santlal Singh (appellant no.8) and Kaleshwar Singh (appellant no.11) under section 307/149 IPC is modified to one under section 323/34 of IPC and remaining other appellants are acquitted of the charge under section 307/149 of IPC.

34. So, far as conviction of the appellants under section 427/149

-14- Cr. Appeal (S.J.) No. 206 of 2010

IPC is concerned, in the written report, informant had stated that appellants had pelted bricks and stones and had damaged the roof tiles of her house. However, PW-7 Investigating Officer, in para-6 of his cross-examination has said that he neither seized any roof tiles nor took evidence in this regard. Hence, on allegation pertaining to section 427/149 IPC, benefit of doubt may be extended to all the appellants. So, all the surviving appellants herein are acquitted of the charge under section 427/149 of IPC.

35. Therefore, based on all the aforesaid reasonings, this Court thinks it fit and proper that the impugned judgment of conviction dated 16.02.2010 and the order of sentence dated 17.02.2010, passed by the learned 5th Additional Sessions Judge, (F.T.C.), Dumka in Sessions Case No. 78 of 2009, so far as it relates to the conviction of the appellants, namely, appellant no.4 (Madan Mohan Singh), appellant no.8 (Santlal Singh) and appellant no.11 (Kaleshwar Singh) under section 307/149 IPC cannot be sustained and are hereby set-aside and now their conviction are modified to one under section 323/34 IPC. All the remaining other appellants are acquitted of the charge under section 307/149 of IPC. Further, all the appellants are also acquitted under section 427/149 IPC.

36. Regarding sentence of the appellants i.e. appellant no.4 (Madan Mohan Singh), appellant no.8 (Santlal Singh) and appellant no.11 (Kaleshwar Singh) under Section 323/34 IPC, at this stage when the offence is of the year 2007 and more than 13-14 years have passed and appellants have faced rigors and vigor of trial and from record, I find that all the appellants have already undergone about 2 months in custody. Hence, this Court, imposes sentence of three months S.I. under section 323/34 of IPC and period already undergone by them, to be deducted from the imposed sentence. However, appellant no.4 (Madan Mohan Singh), appellant no.8 (Santlal Singh) and appellant no.11 (Kaleshwar Singh) are directed to pay the compensatory amount of Rs.3000/- each to the injured persons i.e., PW- 6 Rasaili Devi and PW-5 Manager Singh or to be deposited in the concerned Court below within four months from the date of receipt of copy of this judgment and failure to pay the compensatory amount of Rs.3,000/- each, will entail a further period of custodial sentence of two months S.I. each. Bail bonds of the appellants Appellant No.4 (Madan Mohan Singh), Appellant No.8 (Santlal Singh) and Appellant No.11 (Kaleshwar Singh)

-15- Cr. Appeal (S.J.) No. 206 of 2010

stands cancelled.

37. Accordingly, the criminal appeal is partially allowed.

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, Dated: 17 /12 /2021, Madhav- NAFR