Jharkhand High Court
Pahalu Saha vs The State Of Jharkhand on 5 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1073 of 2013
1.Pahalu Saha S/o Late Sitaram Saha
2.Lado Saha S/o Late Sitaram Saha
3.Sukhit Saha S/o Late Keda Saha
4.Prem Chand Saha S/o Pahlu Saha
5.Sugen Saha S/o Late Sitaram Saha
6.Dugru Saha S/o Choudhary Saha
7.Dinanath Saha S/o Late Sitaram Saha
... ... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opposite Party
With
Cr. Rev. No. 305 of 2002
Sakhi Chand Saha son of Late Kulesh Saha
... ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Kedar Saha son of Late Sadhu Saha
3. Pahlu Saha son of Late Sita Ram Saha
4. Lodo Saha son of Late Sita Ram Saha
5. Sukhit Saha son of Shri Kedar Saha
6. Prem Chand Saha son of Shri Pahlu Saha
7. Sugen Saha son of Late Sita Ram Saha
8. Deonarayan Saha son of Shri Pahlu Saha
9. Dugru Saha son of Choudhry Saha
10.Dina Nath Saha Late Sita Ram Saha
11.Budhwa Saha ... ... Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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(in Cr. Rev. No. 1073 of 2013)
For the Petitioners : Mr. Manish Kumar, Advocate
For the Opp. Party-State : Mr. Shailesh Kumar Sinha, A.P.P.
For the Informant : Mr. A.K. Kashyap, Senior Advocate
Mr. Din Dayal Saha, Advocate
Mr. Suraj Kishore, Advocate
(in Cr. Rev. No. 305 of 2002)
For the Petitioner : Mr. A.K. Kashyap, Senior Advocate
Mr. Din Dayal Saha, Advocate
Mr. Suraj Kishore, Advocate
For the Opp. Party-State : Mr. Md. Hatim, A.P.P.
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2
Through Video Conferencing
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JUDGMENT
17/05.02.2021
1. Both these criminal revision petitions arise out of the
same Judgment passed by the learned trial court and therefore,
both the cases were heard together and are being disposed of by
this common judgment. Cr. Revision 305 of 2002 has been filed
by the informant of the case against the judgement of learned
trial court and Cr. Revision no. 1073 of 2013 has been filed by
the 7 out of 11 convicts against the judgement of the appellate
court confirming the judgement and sentence of the trial court.
No separate revision has been filed by the informant of the case
against the appellate court's judgement.
2. Heard Mr. Manish Kumar, the learned counsel appearing
on behalf of the petitioners in Cr. Rev. No. 1073 of 2013.
3. Heard Mr. Rajeeva Sharma, the learned Senior counsel
who has also assisted this Court in the matter.
4. Heard Mr. A.K. Kashyap, the learned Senior counsel
alongwith Mr. Din Dayal Saha and Mr. Suraj Kishore, the
learned counsels appearing on behalf of the Informant in Cr.
Rev. No. 1073 of 2013 and on behalf of the petitioner-Informant
in Cr. Rev. No. 305 of 2002.
5. Heard Mr. Shailesh Kumar Sinha, the learned A.P.P.
appearing on behalf of the Opposite Party-State in Cr. Rev. No.
1073 of 2013.
6. Heard Mr. Md. Hatim, learned A.P.P. appearing on
behalf of the Opposite Party-State in Cr. Rev. No. 305 of 2002.
7. Cr. Rev. No. 1073 of 2013 has been filed against the
Judgment dated 28.09.2013 passed by learned Additional
Session Judge-I Pakur in Cr. Appeal No. 111/2002 whereby and
whereunder the learned appellate court affirmed the Judgment
of conviction and the order of sentence dated 16.05.2002 passed
by the learned Assistant Sessions Judge-I, Pakur in Session Case
No. 164 of 1994 / 21 of 2002 and dismissed the criminal appeal.
8. The petitioners in Cr. Rev. No. 1073 of 2013 alongwith
Kedar Saha, Deonarayan Saha, Choudhary Saha and Budhwa
Saha had preferred the Cr. Appeal No. 111/2002 against the
Judgment of conviction and the order of sentence dated
16.05.2002 passed by the learned Assistant Sessions Judge-I,
Pakur in Session Case No. 164 of 1994 / 21 of 2002 whereby and
whereunder the Petitioner Nos. 1, 2, 3 and 4 were convicted for
the offences under Sections 147, 323 and 325 of the Indian Penal
Code and were sentenced to undergo Rigorous Imprisonment
for 03 years under Section 325 of the Indian Penal Code,
Rigorous Imprisonment for 02 years under Section 147 of the
Indian Penal Code and Rigorous Imprisonment for 01 year
under Section 323 of the Indian Penal Code and the Petitioner
Nos. 5, 6 and 7 were convicted for offence under Sections 147
and 323 of the Indian Penal Code only and were sentenced to
undergo Rigorous Imprisonment for 02 years under Section 147
of the Indian Penal Code and Rigorous Imprisonment for 01
year under Section 323 of the Indian Penal Code. However, the
learned trial court acquitted all the accused persons including
the petitioners from the charge under Section 307 of the Indian
Penal Code and also acquitted the Petitioner No.1-Pahalu Saha
from the charge under Section 148 of the Indian Penal Code.
9. Cr. Rev. No. 305 of 2002 has been filed by the Informant
of the case against inadequacy and insufficiency of the
conviction and the sentences passed against the Opposite Party
Nos. 2 to 11 in the Judgment dated 16.05.2002 by the learned
Assistant Sessions Judge-I, Pakur in Session Case No. 164 of
1994 / 21 of 2002 with a prayer to convert the conviction of the
Opposite Party Nos. 2 to 11 to under Section 307 or under
Section 326 of the Indian Penal Code and other sections of the
Indian Penal Code and to sentence them accordingly.
Arguments on behalf of petitioners in Cr. Rev. No. 1073/2013
10. Learned counsel for the petitioners in Cr. Rev. No. 1073 of
2013 has submitted that the impugned judgements of
conviction are perverse and the petitioners have been wrongly
convicted by the learned courts below. He submits that there
were altogether 11 accused persons and on the body of the
informant only 9 injuries were found and there are
contradictions in the evidence of the witnesses which have not
been properly examined by the learned courts below. The
learned counsel has also advanced his arguments on the point
of sentences of the petitioners. He submitted that the occurrence
in the present case is of the year 1992 and the petitioners
alongwith four others were convicted vide judgement dated
16.05.2002. He submitted that at the time of conviction, the
Petitioner Nos. 1, 2, 3, 4, 5, 6 and 7 who were accused nos. 2, 3,
4, 5, 6, 8 and 9 respectively were of 49 years, 45 years, 34 years,
30 years, 35 years, 34 years and 40 years of age respectively. He
further submitted that from the date of incident much time has
elapsed and it has come in the judgment passed by the learned
trial court itself that the accused persons and the informant are
of the same family and related to each other. He also submitted
that there is no minimum punishment as such prescribed under
any of the sections under which the petitioners have been
convicted. He submitted that the petitioners had remained in
custody for some period during trial and they had surrendered
before the learned court below on 09.12.2013 during pendency
of the criminal revision and were directed to be released on bail
by this Court vide order dated 10.01.2014 and upon perusal of
the lower court records, it appears that the bail bond was
accepted by the learned court below on 20.01.2014. The learned
counsel submitted that considering the aforesaid aspect of the
matter and that the petitioners have already remained in
custody for more than one month in connection with the
alleged occurrence, the sentence of the petitioners may be
modified and reduced to the period already undergone by
them. He further submitted that the petitioners are ready and
willing to make payment of appropriate victim compensation to
the victim as may be directed by this Court.
11. Learned counsel for the petitioners relied upon two
judgments passed by the Hon'ble Supreme Court. He referred
to the judgment passed in the case of "Roy Fernandes Vs. State
of Goa and Ors." reported in (2012) 3 SCC 221 to submit that in
the said case, the conviction and sentence of the appellant of the
said case under Section 302 read with Section 49 of Indian Penal
Code was set-aside and the conviction was upheld only under
Sections 323 and 325 of Indian Penal Code and the sentence was
limited to the period already undergone by the appellant in
imprisonment. He further submitted that in the said case, the
incident was of 15 years back and the Hon'ble Supreme Court
held that power to grant compensation under Section 357 of
Cr.P.C. to the victim is not ancillary to other sentences, but it is
in addition thereto. He submitted that the Hon'ble Supreme
Court has referred to the judgment passed in the case of "Hari
Singh and Anr. Vs. Sukhbir Singh and Ors." reported in (1988) 4
SCC 551 (Para-24). He further submitted that in the case of Roy
Fernandes (supra) passed by the Hon'ble Supreme Court, the
appellant was directed to pay a sum of Rs. 3 lakhs towards
compensation to be paid to the widow of the deceased, failing
her to his surviving legal heirs and further amounts of Rs.
1,00,000/- and Rs. 50,000/- were directed to be paid to other
victims.
12. Learned counsel for the petitioners also referred to
another judgment passed by the Hon'ble Supreme Court in the
case of "Manjappa Vs. State of Karnataka" reported in (2007) 6
SCC 231 to submit that in the said case also, the incident was
related to more than 10 years ago and the appellant before the
Hon'ble Supreme Court was convicted under Sections 323 and
325 of Indian Penal Code and considering the fact that the
incident was of 10 years ago and the High Court had reduced
the substantive sentence to a month and a half and that the
appellant had undergone and had remained in custody for
about 15 days, the Hon'ble Supreme Court awarded additional
victim compensation of Rs. 10,000/- and limited the sentence to
the period already undergone in the facts and circumstances of
that case.
Arguments on behalf of State in Cr. Rev. No. 1073/2013
13. Learned counsel appearing on behalf of the Opposite
Party-State in Cr. Rev. No. 1073 of 2013 submitted that the
learned courts below have given consistent findings against the
petitioners and accordingly, the judgment of conviction may
not be interfered with. However, so far as sentence is
concerned, he submitted that it is the discretion of this Court to
impose appropriate sentence upon consideration of facts and
circumstances of the case.
Arguments on behalf of State in Cr. Rev. No. 305 of 2002
14. Mr. Md. Hatim, learned A.P.P. advanced his arguments
on behalf of the Opposite Party No.1-State in Cr. Rev. No. 305
of 2002 and submitted that the sentences passed by the learned
trial court against the convicts are proper and do not call for
interference in the facts and circumstances of the case.
Arguments on behalf of Informant in both the cases
15. Mr. A.K. Kashyap, the learned Senior counsel alongwith
Mr. Din Dayal Saha and Mr. Suraj Kishore, the learned counsels
advanced their arguments on behalf of the petitioner-Informant
in Cr. Rev. No. 305 of 2002 and also in Cr. Rev. No. 1073 of 2013.
16. The learned Senior counsel appearing on behalf of the
informant in Cr. Rev. No. 1073 of 2013 vehemently opposed the
prayer of the petitioner including the prayer for reducing the
sentences of the convicted persons and submitted that in fact,
the matter calls for enhancement of sentence as prayed for in
Cr. Rev. No. 305 of 2002 by appreciating the manner in which
the offence has been committed and the maximum punishment
provided under the sections should have been given. He also
referred to Sections 397 and 401 of Cr. P.C. to submit that in
case of any irregularity or illegality on the point of sentencing,
this Court can interfere in revisional jurisdiction and in the
present case, the sentences have not been sufficiently awarded
by the learned trial court and consequently, the informant has
directly approached this Court for the purpose of the aforesaid
reliefs as prayed for in Cr. Rev. No. 305 of 2002. He further
submitted that the learned courts below ought to have
convicted the petitioners under Section 307 of Indian Penal
Code, but during the course of arguments, he fairly submitted
that there is no scope for converting the acquittal of the
petitioners under Section 307 of the Indian Penal Code into an
order of conviction under the said section, but certainly the
sentences can be modified and enhanced to suitably punish the
Opposite Party Nos. 2 to 11 in Cr. Rev. No. 305 of 2002.
17. Learned Senior counsel for the informant further
submitted that in Cr. Rev. No. 1073 of 2013, there is no scope for
interference in the impugned judgments passed by the learned
courts below either on the point of conviction, or on the point of
reduction of sentence. He submits that Cr. Rev. No. 1073 of
2013 is fit to be dismissed and Cr. Rev. No. 305 of 2002 filed by
the informant of the case is fit to be allowed by enhancing the
sentence of the convicts.
Findings in Cr. Rev. No. 305 of 2002
18. After hearing the learned counsel for the parties and
upon perusal of the records of Cr. Rev. No. 305 of 2002 as well
as the lower court records of the case, this Court finds that the
Opposite Party Nos. 3 to 6 were found guilty and were
convicted under Sections 325, 147 and 323 of the Indian Penal
Code and the Opposite Party Nos. 2 and 7 to 11 were convicted
under Sections 147 and 323 of the Indian Penal Code only.
19. This Court further finds that there were altogether 11
convicts as per the trial court judgment. The Opposite Party
Nos. 3 to 6 were sentenced to undergo Rigorous Imprisonment
for 03 years under Section 325 of the Indian Penal Code,
Rigorous Imprisonment for 02 years under Section 147 of the
Indian Penal Code and Rigorous Imprisonment for 01 year
under Section 323 of the Indian Penal Code. The specific case of
the Informant (petitioner in Cr. Rev. No. 305 of 2002) is that the
punishment imposed for offence under Section 325 of Indian
Penal Code is inadequate, inasmuch as, maximum punishment
prescribed under Section 325 of Indian Penal Code is 7 years
and considering the manner in which the offence has been
committed, the maximum punishment of 7 years should have
been given by the learned trial court, but instead of that, a
punishment of 03 years only has been imposed upon the
Opposite Party Nos. 3 to 6. It is the specific case that the
punishment imposed is highly inadequate which calls for
interference in revisional jurisdiction.
20. This Court finds that the learned trial court, while
sentencing the convicts, considered the facts that the accused
persons and the informant are of the same family and are
related to each other and also considered the prayer to grant
benefit of Probation of Offenders Act and considering that the
occurrence took place while the informant was going to Pakur
Court and also considering the nature and gravity of offence,
the learned trial court refused to release the convicts on
probation and refused to give benefit of the Probation of
Offenders Act to them.
21. So far as the sentence of the convicts is concerned, this
Court finds that although the charge was framed under Section
147, 323 and 307/34 of Indian Penal code, but upon
appreciation of the evidences, all the accused were acquitted for
offence under Section 307/34 of Indian Penal Code and
Opposite Party Nos. 3 to 6 were convicted for the offences
under Sections 325, 147 and 323 of the Indian Penal Code and
other accused were convicted for the offences under Sections
147 and 323 of Indian Penal Code.
22. Upon perusal of the injury reports as recorded in the
appellate court judgment, this Court finds that there are
altogether seven injured persons in the incident. The injuries
upon six of them were simple injuries and so far as the
informant of the case (petitioner herein) is concerned, there
were multiple injuries, two injuries on his right forearm were
grievous in nature as fracture was found on right forearm and
radius and ulna bones of the right side which was inflicted by
hard and blunt substance and the rest injuries were simple in
nature. It appears that nine injuries were found and the accused
persons were 11 in number who have been convicted in the
present case. This Court further finds that the learned appellate
court also appreciated the materials on record and upheld the
conviction and sentence of the convicted persons.
23. This court finds that the learned court below has applied
its judicial mind on the point of sentence, considered the nature
and gravity of offence and has exercised sound discretion while
sentencing the accused which does not call for any
enhancement in revisional jurisdiction. Admittedly, no
minimum sentence has been provided for the alleged offence
and no case for enhancement of sentence has been made out.
Considering the totality of the facts and circumstances of this
case and the limited scope of revisional jurisdiction, this Court
finds no reason to enhance the sentences imposed by the
learned trial court. Accordingly, Cr. Rev. No. 305 of 2002 is
hereby dismissed.
Findings in Cr. Rev. No. 1073 of 2013
24. After hearing the learned counsel for the parties and
going through the impugned judgments as well as the lower
court records of the case, this Court finds that the prosecution
case is based on the fardbeyan of the Informant namely, Sakhi
Chand Saha recorded by S.I. T.P. Singh of Hiranpur P.S. on
21.03.1992 at 10:00 A.M. at Hiranpur Hospital alleging inter-alia
that on 21.03.1992 at about 07:00 A.M., he was going to Pakur
Court and when he reached near the house of Kedar Saha,
Kedar Saha loudly spoke "Maro Sale Ko" and thereafter, Pahlu
Saha armed with chheni in his hand and Lado Saha, Sukhit
Saha and Prem Chand Saha armed with lathi in their hands
came there and surrounded him. Thereafter, Pahlu Saha
inflicted chheni blow on his head with an intention to kill him.
He tried to save himself, but could not do so and the chheni
blow was inflicted on his neck and all the accused persons
assaulted him by means of lathi and he fell down on the
ground.
In the meantime, when Khagen Saha, Abhimannu Saha,
Lalmuni, Jitni Kumari, Genu Saha and Arti Devi came there to
rescue him, Sugen Saha, Deonath Saha, Dugru Saha,
Choudhary Saha and Budhua Saha came there and inflicted
them with lathi and danda causing several injuries to them. The
main reason behind the occurrence was stated that a criminal
case was proceeding between the parties since long.
25. On the basis of the fardbeyan, the case was registered as
Hiranpur P.S. Case No. 12 of 1992 dated 21.03.1992 (G.R. No.
113/1992) under Sections 147, 148, 323, 324, 326 and 307 of the
Indian Penal Code and after completion of investigation,
charge-sheet was submitted under Sections 147, 148, 323, 325
and 307 of the Indian Penal Code against the petitioners and
also against Kedar Saha, Deonarayan Saha, Choudhary Saha
and Budhwa Saha and on 13.08.1992, cognizance of the offence
was taken against them under the same sections.
26. After commitment of the case, on 16.08.1994, the charges
under Sections 147, 323 and 307/34 of the Indian Penal Code
were framed against all the accused persons and the charge
under Section 325 of the Indian Penal Code was framed against
only four accused persons namely, Pahlu Saha, Lado Saha,
Sukhit Saha and Prem Chand Saha and the charge under
Section 148 of the Indian Penal Code was framed against one
accused namely, Pahlu Saha which were read over and
explained to them in Hindi to which they pleaded not guilty
and claimed to be tried.
27. In course of trial, the prosecution examined altogether 12
witnesses to prove its case. P.W.-1 is Abhimannu Saha who is
son of the informant, P.W.-2 is Sudhir Saha, P.W.-3 is Kishun
Saha, P.W.-4 is N.C. Saha, P.W.-5 is Dr. Tulsi Prasad who has
proved seven injury reports (Exhibits 1 to 1/6) and X-ray report
(Exhibit-2), P.W.-6 is S.C. Saha, P.W.-7 is T.P. Singh who is the
Investigating Officer of the case and has proved the fardbeyan,
P.W.-8 is Khagendar Saha who is another son of the informant,
P.W.-9 is Sakhi Chand Saha who is the Informant of the case,
P.W.-10 is Arti Saha, P.W.-11 is Lalmuni Devi and P.W.-12 is Dr.
Arun Krishan who has proved four X-ray plates (Exhibits-6 to
6/3), two X-ray reports (Exhibits-6/4 and 6/5) and the X-ray
plate and X-ray report of Dr. S.D. Mishra as Exhibits-6/6 and
6/7 respectively.
28. The prosecution exhibited the injury reports as Exhibits- 1
to 1/6, the X-ray Report as Exhibit-2, fardbeyan as Exhibit-3, the
formal F.I.R. as Exhibit-4, the injury forwarding as Exhibits- 5 to
5/5, X-ray Plates as Exhibits- 6 to 6/3 and 6/6, X-ray Reports as
Exhibits- 6/4 & 6/5, signature of Dr. S.D. Mishra on X-ray
Report as Exhibit-6/7, Judgment passed in Cr. Appeal No.
46/1997 as Exhibit-7 and order passed in Cr. Revision No.
2/1995 as Exhibit-8. P.W.-5 Dr. Tulsi Prasad on 21.03.1992 has
examined the injured and found following injuries: -
Injured Injury Exhibit
Jitu Kumari Bruise with swelling 1"x ½" over leg foot. The Exhibit-1
cause of injury is hard blunt substance. He
gave advice for X-ray.
Lalmuni Debi Abrasion ½" x 1/8" and ulterior aspect of right Exhibit-1/1
forearm. Nature of injuries are simple cause by
hard and blunt substance.
Arti Debi Bruise 2" x ½" back right side. Injuries are Exhibit-1/2
simple in nature and caused by hard and blunt
substance.
Genu Saha Bruise 1" x ½" and lacerated aspect of left arm. Exhibit-1/3
Nature of injury in simple. Caused by hard
and blunt substance.
Khagendra Bruise 2" x ½" on left scapular aspect. Exhibit-1/4
Saha Lacerated wound 1" x 1/8" over left palm over
bone of little finger. Both are simple in nature
and caused by hard and blunt substance
Abhimanu Abrasion 1 and ½" x ¼" on left scapular aspect. Exhibit-1/5.
Saha Simple in nature. Caused by hard and blunt
substance.
Sakhi Lacerated wound 2 and ½" x ¼" scalp deep on Exhibit-1/6
Chandra parietal aspect of head (Advised X-ray).
Saha Bruise and swelling 2" x ½" on lower left
parietal aspect of right forearm. (Advised X-
ray)
Bruise 1 and ½" x ½" on parietal aspect of right
forearm.
Bruise 3" x ½" over right shoulder. Simple in
nature, caused by hard blunt substance.
Bruise 1" x ½" Scapular left lateral aspect of
right arm, simple in nature, caused by hard
and blunt object.
Bruise 2" x ¼" on right scapular aspect, simple
in nature, caused by hard and blunt object.
Bruise 2" x ½" over left shoulder, simple in
nature, caused by hard blunt object.
Bruise 4 and ½" on right scapular aspect,
simple in nature, caused by hard blunt object.
Bruise 1" x ¼" over left cheek, simple in
nature, caused by hard and blunt object.
29. The statements of the petitioners and four other accused
persons were recorded under Section 313 of Cr.P.C. on
06.04.2002 wherein they denied the allegations and the
incriminating substances put to them and claimed to be
innocent. The accused persons did not adduce any oral
evidence, but the F.I.R. and Judgment of G.R. No. 114/1992
were exhibited as Exhibit-A and Exhibit-B respectively in their
defence objection of the prosecution.
30. This Court finds that the learned trial court considered
the oral and documentary evidences adduced on behalf of the
prosecution, also the documentary evidence adduced on behalf
of the accused persons, the arguments advanced on behalf of
the parties and recorded its findings in Para-15, 16 and 17
which read as under:
"15. The prosecution case is that on instigation by the accused
Kedar, initially the accused persons Pahlu, Lodho, Sukhit,
Premchand assaulted Sakhichand Informant & when his family
members came for rescue, the other accused persons assaulted
them. So as per the prosecution, all accused persons were
present at P.O. forming an unlawful assembly. The same has
been supported by the evidence of P.W.-1, P.W.-2, P.W.-3,
P.W.-8, P.W.-9, P.W.-10 & P.W.-11. They have stated that the
accused persons were present at P.O. Though P.W.-2, Sudhir
Sah & P.W.-3 Kishun Sah have stated that the moment they
reached at P.O., the occurrence of assault was over. So it cannot
be said that P.W.-2 and P.W.-3 are the eye witness on the point
of assault. But P.W.-3 has stated that on hulla when he went to
P.O. he saw accused Lodho, Dina, Sugan, Choudhary, Durgu,
Kedar, Sukhit armed with lathi and accused Pahlu armed with
chheni. He has stated about the fracture of Sakhichand.
16. Though P.W.-1 Abhimanu Sah could not say which
accused gave lathi blow upon his father. But he has stated about
bleeding injury. P.W.-1 has stated that when he and his sister,
brother came for rescue, they have also been assaulted by the
accused persons. P.W.-10 Arti Devi has stated that she went to
rescue her father and she has been assaulted by accused Dina.
Like-wise, P.W.-11 Lal Muni Devi W/o informant has also
stated that when she went for rescue, accused Durgu assaulted
upon her hand. P.W.-8 Khagendar has also stated that they
went for rescue, but the accused persons have assaulted them.
P.W.-9 informant Sakhi chand has stated that accused
Pahlu gave chheni blow & other accused persons gave lathi
blows. He has stated that he got swelling upon his hand & his
hand has been fractured. Further he has stated that when his
family members came for rescue they have also been assaulted
by the lathi blows of accused persons.
Dr. Tulsi Prasad P.W.-5 also found injuries upon
Lalmuni Devi, Arti, Jitu, Sakhichand, Genu Saha, Khagendar,
Abhimanu. About injuries upon Sakhichand Saha, Dr. P.W.-5
has advised for the X-ray. P.W.-12 Dr. Arun Krishan who has
done X-ray of Sakhichand Saha has found fracture of radius
ulna bone. So medical evidence also corroborates about the
injuries & happening of the occurrence.
P.W.-7 T.P. Singh, I.O. has also found the P.O. on road
at Vill.- Tarapur. The case of the prosecution is also on road,
while the informant was going to Pakur on that very day.
P.W.-7 I.O. has stated that he has found blood mark at P.O.
17. Though from the defence side, the certified copy of F.I.R.
of G.R. Case No. 114/92 & its judgment have also been filed
which are exhibit A and B respectively to show that there was a
counter case relating to the same date & time of occurrence in
which the informant of the present case Sakhi chand Saha &
others have been convicted. But Exhibit-7, the certified copy of
Criminal Appeal No. 46/97 shows that Sakhichand & others
have been thereafter acquitted."
31. The learned trial court acquitted all the accused persons
from the charges under Section 307 of the Indian Penal Code
and also acquitted the Petitioner No.1-Pahalu Saha from the
charge under Section 148 of the Indian Penal Code and
convicted all the eleven accused persons including the
petitioners in the following manner:
"18. From the aforesaid discussion & findings and on careful
perusal of all the admissible evidence and materials on the
record and after hearing the argument of both prosecution and
defence, I am led to hold the accused Pahlu Saha, Ladho Saha,
Sukhit Saha & Prem Chand Saha guilty for the offence u/s 147,
323 & 325 I.P.C. and the remaining accused Kedar Saha,
Sugan Saha, Deonarain Saha, Dugru Saha, Dinanath Saha,
Choudhari Saha, Budhwa Saha have been held guilty for the
offence only u/s 147 & 323 I.P.C. Accordingly, accused Pahlu
Saha, Ladho Saha, Sukhit Saha, Premchand have been convicted
for the offence u/s 147, 323 & 325 I.P.C. and the remaining
accused persons Kedar Saha, Sugan Saha, Deonarain Saha,
Dugru Saha, Dinanath Saha, Choudhari Saha, Budhwa Saha
have been convicted only for the offence u/s 147 & 323 I.P.C."
32. This Court further finds that the learned appellate court
also considered the prosecution evidences in detail and also
considered the arguments advanced on behalf of the petitioners
and summarized its findings in Para-25 which reads as under:
"25. From the trend of evidence, I find that P.W.-1
Abhimannu Saha, P.W.-4 Narayan Chand Saha, P.W.-6
Sudhir Chand Saha, P.W.-8 Khagendra Saha and P.W.-11 Lal
Muni Devi and other witnesses have deposed in their evidence
that there was a dispute between the parties since long for
which the appellants violently caused hurt by the lathi to the
informant and his family members. The informant and his
family members also faced a noisy behaviour by the appellants
and the appellants disturb the peace by a crowd. So, the
informant and his family members have sufficiently been
injured during this occurrence. But after examination by the
doctor of the informant and his family members also he found
that all the injuries are simple in nature except injury no. 02
and 03 caused by hard blunt substance upon the informant
Sakhichand Saha for which his hand was fractured and after
getting the X-ray plate and X-ray report, it is also detected that
the hand of Sakhichand has been fractured. Further it appears
from the evidence of the witnesses that Phalu, Lodo Sukhit and
Premchand gave lathi blow upon the hand of the informant for
which informant Sakhichand sustained fractured injury on his
hand. So this fact has been proved by both oral and
documentary evidences that Sakhichand sustained fractured
injury upon his hand. Thus, the evidence of the witnesses were
also not contradictory rather they have supported the fact in
every aspect of the prosecution case. So, I do not find any
reason to disbelieve their evidence and their evidence must be
relied upon. So, the offence U/s 147 and 323 of the IPC are
levelled against all the aforesaid appellants and offence U/s 325
IPC which is levelled against only four appellants namely,
Pahlu Saha, Lodo Saha, Sukhit Saha, Prem Chand Saha have
been proved. Thus, there are sufficient evidence against them."
33. This Court finds that P.W.-1 (Abhimannu Saha), P.W.-8
(Khagendra Saha), P.W.-9 (Informant), P.W.10 (Arti Devi) and
P.W.-11 (Lalmuni Devi) are the injured eye witnesses of the
case. Jeetu Kumari and Genu Saha are the rest two injured
victims of the occurrence.
34. This Court further finds that P.W.-9 (injured Informant)
deposed that on the day of the occurrence at about 07:00 A.M.,
he was going to Pakur Court and when he reached near the
house of Kedar Saha, then Kedar Saha instigated to assault the
informant by saying "Maro Sale Ko". Thereafter, Pahlu Saha by
means of chheni assaulted on his head. Thereafter, Lado and
Sukhit inflicted lathi blow upon his hand and his hand got
fractured and swelling. He further deposed that Kedar,
Premchand, Dina, Sugen also assaulted him by lathi and when
his family members came there to rescue him, then, the accused
persons also assaulted them and thereafter, he fell down in
unconscious condition and he was taken to Hiranpur Hospital
where his fardbeyan was recorded which was read over to him
and he put his L.T.I. on his fardbeyan. Thereafter, Hiranpur
Hospital referred him to Bhagalpur and his son took him to
Bhagalpur. The informant has been thoroughly cross-examined
by the defence and his evidence remained consistent on the
point of his injuries and also the occurrence.
35. This Court further finds that Exhibit-1/6 is the Injury
Report of the Informant (P.W.-9) which reveals that the Doctor
found 09 injuries on his head, right hand, right shoulder and on
other parts of his body and out of them, 7 injuries were simple
in nature and injury nos. 2 and 3 were grievous. It further
appears that Dr. S.D. Mishra, who had examined the Informant
and whose signature has been exhibited as Exhibit-6/7, has
given a report with regard to the injuries of the Informant. The
report reveals that the informant had sustained compound
fracture of lower end of right ulna and fracture of radius caused
by a blow by blunt and hard weapon and he had also sustained
injury on his skull and multiple bruises caused by blunt and
hard weapon on the posterior aspect of chest wall and the
doctor opined the injuries as grievous.
36. This Court further finds that P.W.-5 is Dr. Tulsi Prasad
who has proved seven injury reports as Exhibits- 1 to 1/6,
Exhibits-1 to 1/5 are the injury reports of other six family
members of the Informant wherein P.W.-5 found simple
injuries on the body of Jeetu Kumari, Lalmuni Devi, Arti Devi,
Genu Saha, Khagendra Saha and Abhimannu Saha.
37. This Court further finds that P.W.-9 (Informant) has fully
supported his version stated in his fardbeyan and P.W.-1, P.W.-
4, P.W.-6, P.W.-8, P.W.-10 and P.W.-11 and the Injury Reports
and X-Ray Plates of the injured persons have fully corroborated
the prosecution case on the point of injuries received by the
Informant and other injured persons at the hands of the accused
persons including petitioners.
38. This Court finds that the learned appellate court has
recorded concurrent findings of facts and upheld the conviction
as well as the sentence of the accused persons including the
petitioners.
39. This Court finds that the learned courts below have
thoroughly examined the evidences on record including the
evidences of the victims and the doctors and after considering
the evidences, both oral and documentary, have convicted the
petitioners and other accused. Merely because there were 11
accused persons and 9 injuries were found on the body of the
informant, the same has no bearing in the case. There are many
injured victims in this case and the petitioner nos. 1 to 4 were
the persons along with co-convict Kedar Saha who had initially
inflected injuries upon the informant victim, who suffered two
grievous injuries and other simple injuries. When others came
to rescue the informant, the other accused, along with said five
persons, assaulted other six persons who suffered simple
injuries on their body. The injuries have been supported by the
injury reports and the evidence of the doctors. The time of
occurrence, the place of occurrence and the manner of
occurrence have been fully established and there are no
material contradictions in the evidence of the witnesses. There
is no scope for reappreciation of evidences and coming to a
different finding in revisional jurisdiction in absence of any
perversity. There is neither any perversity nor any illegality in
the impugned judgements of conviction calling for any
interference in revisional jurisdiction. Accordingly, the
conviction of the petitioners passed by the learned trial court
and affirmed by the learned appellate court is hereby upheld.
40. So far the sentences of the petitioners in Cr. Rev. No.
1073/2013 are concerned, this Court finds that it is not in
dispute that the incident is of the year 1992 and there were
altogether 11 convicted persons including the present
petitioners and the convict namely, Kedar Saha who had given
the call to assault the Informant is not the petitioner before this
Court. This Court also finds that the Informant and six (06)
others are the injured victims of the incident, though all of
them, except the informant of the case, suffered simple injuries.
It is further not in dispute that the informant party and the
convicts are related to each other. Further, it is apparent from
the trial court judgement that though from the defence side, the
certified copy of F.I.R. of G.R. Case No. 114/92 & its judgment
were filed as Exhibit- A and B respectively to show that there
was a counter case relating to the same date and time of
occurrence in which the informant of the present case Sakhi
chand Saha and others have been convicted, but Exhibit-7, the
certified copy of Criminal Appeal No. 46/1997 showed that the
informant and others were thereafter acquitted.
29 Years have elapsed from the date of the incident and the
present age of most of the petitioners is above 50 years. This
Court finds that that much time has elapsed from the date of
the incident and the petitioners have suffered the rigours of the
criminal case for a very long time right from the year 1992
onwards. The Petitioner Nos. 2, 3 and 4 were in custody from
22.03.1992 to 03.04.1992 (13 days) and Petitioner Nos. 1, 5, 6 and
7 were in custody from 20.04.1992 to 21.04.1992 (2 days) during
trial of the case and all the petitioners have remained in custody
from 09.12.2013 to 20.01.2014 (01 month 12 days) also during
pendency of this criminal revision.
41. The present age of the petitioners in Cr. Rev. No.
1073/2013 and their period of custody already undergone by
them in the present case are as follows:
Name of Conviction Sentences Age at the Present Total
Petitioner (U/s.) imposed time of age Period of
conviction custody
undergone
1. Pahalu Saha S. 325, 147, 03 Years 49 Years 67 Years 1 month 14
& 323 IPC 02 Years days
01 Year
2. Lado Saha S. 325, 147, 03 Years 45 Years 63 Years 1 month 25
& 323 IPC 02 Years days
01 Year
3. Sukhit Saha S. 325, 147, 03 Years 34 Years 52 Years 1 month 25
& 323 IPC 02 Years days
01 Year
4. Prem Chand S. 325, 147, 03 Years 30 Years 48 Years 1 month 25
Saha & 323 IPC 02 Years days
01 Year
5. Sugen Saha S. 147, 323 02 Years 35 Years 53 Years 1 month 14
IPC 01 Year days
6. Dugru Saha S. 147, 323 02 Years 34 Years 52 Years 1 month 14
IPC 01 Year days
7. Dinanath S. 147, 323 02 Years 40 Years 58 Years 1 month 14
Saha IPC 01 Year days
42. Considering the entire aforesaid facts and circumstances
of this case, this Court is of the considered view that ends of
justice would be served if the sentences of the petitioners are
modified to some extent by imposing fines upon them and by
remitting a portion of the fine amount to the injured victims
and in their absence to their legal heirs by way of victim
compensation.
43. Accordingly, the sentences are modified as under:-
Name of Convicti- Sentences Present Total Modified
Petitioner on (U/s.) imposed by age Period of sentence
learned custody
court undergo-
below ne
1. Pahalu Saha S. 325, 03 Years 67 Years 1 month Six months
147, & 02 Years 14 days with fine of
323 IPC 01 Year Rs.25,000/-
2. Lado Saha S. 325, 03 Years 63 Years 1 month Six months
147, & 02 Years 25 days with fine of
323 IPC 01 Year Rs.25,000/-
3. Sukhit Saha S. 325, 03 Years 52 Years 1 month One year
147, & 02 Years 25 days with fine of
323 IPC 01 Year Rs.20,000/-
4. Prem Chand S. 325, 03 Years 48 Years 1 month One year
Saha 147, & 02 Years 25 days with fine of
323 IPC 01 Year Rs.20,000/-
5. Sugen Saha S. 147, 02 Years 53 Years 1 month Period
323 IPC 01 Year 14 days undergone
with fine of
Rs.10,000/-
6. Dugru Saha S. 147, 02 Years 52 Years 1 month Period
323 IPC 01 Year 14 days undergone
with fine of
Rs.10,000/-
7. Dinanath S. 147, 02 Years 58 Years 1 month Period
Saha 323 IPC 01 Year 14 days undergone
with fine of
Rs.10,000/-
44. The fine amount is directed to be deposited before the
learned court below latest by 30.06.2021 failing which the
concerned petitioners would undergo the sentence already
imposed by the learned courts below.
45. The 40% of the fine amount so deposited will be remitted
to the informant of the case upon due identification as victim
compensation. The 40% of the fine amount so deposited will be
equally divided and remitted to the other six injured victims of
the case named above, upon due identification as victim
compensation.
46. The bail bonds furnished by the petitioner nos. 1 to 4 are
hereby cancelled.
47. Upon deposit of the fine amount by the petitioner nos. 5
to 7 as indicated above, they will be discharged of their liability
under the bail bonds and in case of non-deposit of the fine
amount within the stipulated time as mentioned above, the bail
bond furnished by them will stand cancelled and the learned
court below shall make all endeavors to take them into custody.
48. With the aforesaid findings, modification in sentences of
the petitioners, Cr. Rev. No. 1073 of 2013 is hereby disposed of.
49. Pending interlocutory application, if any, is dismissed as
not pressed.
50. It has been pointed out that in order dated 29.01.2021, the
order number has been wrongly typed as '15' instead of '16'.
Accordingly, order number in order dated 29.01.2021 is to be
read as order no. 16. Office is directed to make necessary
correction in the order -sheet of order dated 29.01.2021.
51. Let the lower court records be sent back immediately to
the court concerned.
52. Let a copy of this Judgment be communicated to the
learned court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj
