Sankar Mehra vs The State Of Jharkhand
2021 Latest Caselaw 341 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Appeal (S.J.) No. 297 of 2010
(Against the judgment of conviction and order of sentence dated 04.03.2010 passed by
the Sessions Judge, Godda in connection with S.T. No. 233 of 2008 arising out of
Pathargama P.S. Case no. 75 of 2007, G.R. no. 602 of 2007.)

1. Sankar Mehra
2. Nakul Mehra
3. Rajesh Mehra
4. Bipin Mehra
5. Adesh Mehra
              All are S/o Rangnath Mehra
6. Mithun Mehra @ Mithun Kumar Mehra, S/o Raja Mehra
7. Kranti Mehra S/o Jmadip Mehra
8. Sanjay Mehra @ Sanjay Kumar Mehra, S/o Kanti Mehra
9. Kundan Mehra, S/o Sidnath Mehra
10. Raja Mehra S/o Late Dular Das Mehra
       All are Residents of Village- Logai, P.O. and P.S. Pathergama,
District-Godda                                              ...... Appellants

                              -Versus-

The State of Jharkhand                                         ...... Respondent
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants :     Ms. Nivedita Kundu, Advocate
For the Respondent :     Mr. Rakesh Ranjan, A.P.P.

C.A.V. on: 02.07.2020                            Pronounced on: 22/01/2021

This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 04.03.2010 passed by the Sessions Judge, Godda in connection with S.T. No. 233 of 2008 arising out of Pathargama P.S. Case no. 75 of 2007, G.R. no. 602 of 2007 whereby and whereunder all the appellants were convicted under sections 307/34, 323/34 and 380/34 of IPC and sentenced to R.I. for three years and fine of Rs. 1,000/- each, failing which to undergo S.I. for one month for the offence punishable under section 307/34 IPC. Appellants were sentenced to S.I. for six months for the offence punishable under section 323/34 IPC and R.I. for two years and fine of Rs. 1,000/- each and in default to undergo S.I. for one month for the offence punishable under section 380/34 IPC. The period ,if any, undergone by the convicts in custody during trial was ordered to be set-off and all the sentences were directed to run concurrently.

2. The case of the prosecution as per written report dated 03.06.2007 of the informant Abhinandan Mehra-PW-4 is that on 3.6.2007 at about 8 p.m. he was going to sleep after taking dinner then accused Nakul Mehra

started abusing him and told him that all the palm trees belong to him and he will cut all the palm tree tomorrow. On this, the informant said not to use abusive words and told him to settle the dispute through panchayati. Thereafter, the accused persons, namely, Nakul Mehra, Sankar Mehra, Bipin Mehra, Rajesh Mehra, Adesh Mehra, Kundan Mehra, Raja Mehra, Mithun Mehra, Kranti Mahra and Sanjay Mehra entered into the informant's house armed with deadly weapons with an intention to kill him and started assaulting the informant with an iron rod on his head and other parts of his body. Thereafter, accused persons took him to a gali and there also they assaulted him. Rukmani Devi (P.W.1), grandmother of the informant, came to rescue him who was also assaulted by the accused persons with iron rod on her head and other parts of her body. Accused persons took away two sacks of rice and silver jewelleries weighing 20 bhars from the house of the informant. Informant further stated that there was a land dispute between the informant and the accused persons.

3. On the basis of the written report of the informant Pathargama P.S. case no. 75 of 2007 was registered under sections 452, 341, 323, 307, 380, 504, 34 of IPC. After completion of investigation, charge sheet was submitted against the accused persons under section 341,323,324,452, 307,380 and 504/34 of the IPC and after taking cognizance, the case was committed to the court of Sessions. Charges were framed against the accused persons under Sections 307/34, 324/34, 323/34, 341/34, 452/34, 380/34 and 504/34 of the IPC. Trial was held and after the conclusion of the trial the learned trial court convicted and sentenced the accused persons or appellants herein under sections 307/34,323/34 and 380/34 of the IPC. Hence, this appeal.

4. Prosecution had examined altogether nine witnesses out of which PW-4 Abhinandan Mehra is the informant of the case; PW-1 Rukmani Devi, is the grandmother of the informant; PW-2 Parma Devi is the aunt (mausi) of the informant; PW-3 Nand Kishore Mehra is the uncle of the informant; PW-5 is Dr. Ambika Prasad Singh who had examined the injured informant PW-4 and PW-1; Remaining other witnesses PW-6, PW- 7, PW-8 and PW-9 were declared hostile.

5. P.W.4 Abhinandan Mehra is the informant of the case. He has stated in his examination-in-chief that the occurrence took place on 3.6.2007 at about 8 p.m. Accused Nakul Mehra came to his house abusing him and said the whole palm trees belonged to them and they

would cut them. Informant further stated that he told Nakul not to abuse him and to settle the dispute through panchayat. Thereafter, Nakul Mehra, Sankar Mehra, Bipin Mehra, Rajesh Mehra, Adesh Mehra, Kundan Mehra, Raja Mehra, Mithun Mehra, Kranti Mehra and Sanjay Mehra entered into his house with an intention to kill him and each of the accused persons were armed with iron rod. All the accused persons assaulted him with rod as a result he sustained injury on his head and other parts of body. He fell down on the ground. When his grandmother PW-1 Rukmani Devi came there from the courtyard to rescue him, she was also assaulted by the accused persons. Villagers came and took him to the police station. The accused persons took away 20 bhars of silver jewellery and 2 sacks of rice from his house. Informant has proved his signature on the written report which was marked as Ext.-1. In his cross-examination informant stated that there was land dispute between him and the accused persons.

6. PW-1 Rukmani Devi is the grandmother of the informant. She deposed in her examination-in-chief that on the day of occurrence at about 8 p.m. in the night all the accused persons entered into her house and assaulted her grandson Nandan with an iron rod on his head, shoulder and waist. Nandan sustained injury on his head and blood oozed out. When she went to rescue Nandan then Rajesh, Kundan, Bipin and others assaulted her on her forehead, back side of her head, waist, back and other places. PW-1 also sustained bleeding injury on her head. She further stated that the accused persons took away two sacks of rice and silver jewellery of her granddaughter-in-law. She was treated at Pathargama.

7. PW-2 Parma Devi is the aunt (mausi) of the informant. She has stated in her evidence that the occurrence took place at 8 p.m. in the night. On hearing hulla from the house of the informant, she went there and saw that the accused persons were abusing the informant and pulled him out of the house and assaulted him with iron rod as a result informant sustained bleeding injury. When Rukmani Devi(P.W.-1) came to rescue him, she was also assaulted with rod as a result she also sustained injury on several parts of her body. In her cross-examination, she has stated that her house is at a distance of 100 metre from the house of the informant.

8. PW-3 Nand Kishore Mehra is the uncle of the informant. He has stated in his evidence that the occurrence took place at 8 p.m. The accused persons assaulted the informant with iron rod with the intention to kill him. When his mother PW-1 went to rescue him, she was also

assaulted with iron rod on her head and other parts of her body. Both were taken for treatment to the Pathargama hospital. In his cross- examination P.W.3 stated that his house is situated at a distance of 200 yards from the house of the informant.

9. PW-5 is Dr. Ambika Prasad Singh, who had examined both the injured P.W.4 and P.W.1.

(i) Doctor found the following injuries on the person of PW-4 Abhinandan Mehra:-

"(i) Lacerated wound on right temporal region 2"x1/4"x1/6".

(ii) Abrasion on left shoulder 2"x1".

Doctor opined that injuries sustained by Abhinandan were simple in nature caused by hard and blunt substance. Doctor has proved the injury report of Abhinandan Mehra which was marked as Ext.-2.

(ii) Doctor on examination of P.W.-1 Rukmani Devi had found following injuries on her person:-

"(i) Lacerated wound on left side of frontal skull measuring 3"x1/4"x1/6".

(ii) Lacerated wound in right wrist measuring 2½"x1/4" x 1/6".

Doctor opined that both the injuries caused to Rukmani Devi were simple in nature caused by hard and blunt substance. PW-5 has proved the injury report of Rukmani Devi which was marked as Ext.-2/1. ARGUMENTS ON BEHALF OF APPELLANTS:

10. Learned counsel for the appellants has argued that it is important to know that this case has emerged due to existing enmity between the parties and that there is a land dispute subsisting between the parties and there is pendency of case or litigation between the parties. Therefore, the allegations are malafide and motivated and thus the conviction and sentences need to be set-aside. She has further argued that the learned court below failed to appreciate that no independent witness has supported the prosecution case. The prosecution witnesses are totally interested witnesses and their only objective was to falsely implicate the appellants in a false case. Based on the aforesaid, there being no motive no case can be made out against the appellants. Moreover, even then there are only simple injuries that have been indicated hence, no offence under section 307 IPC is made out. Learned counsel further argued that in this case there are as many as ten appellants and if they had an intention to kill the injured persons then so many persons could have easily commit

the murder, however there is no indication of even grievous injuries and therefore, section 307 IPC cannot be made out and hence, the entire allegation against the accused persons needs to be set-aside. Learned counsel has further argued that the evidences are inconsistent or insufficient in nature. There is no specific evidence that accused persons had made preparation to commit any offence. As per the evidence of PW- 1 and PW-4, who are injured persons, they were taken to Pathargama for treatment. PW-1 has stated that she and PW-4 were taken in a cot to Pathargama but on the other hand PW-4 has stated that he was taken by motorcycle to Pathargama. Hence, it is clear that the evidence of PW-1 and PW-4, who are important witnesses is inconsistent and therefore, the evidences of PW-1 and PW-4 are not reliable and trustworthy. If the evidence of PW-1 and PW-4 are not reliable then conviction needs to be totally set aside or if not at least benefit of doubt may be extended to the appellants. Learned counsel has also argued that the father of the appellant who is also an eye witness has not been examined and he would have been an important witness which shows that the allegation was false. Learned counsel further argued that there is no evidence for offence under section 380 IPC as there is no recovery of any stolen item.

11. Finally, learned counsel for the appellants argued that the Investigating Officer has not been examined which has caused prejudice to the appellants. If the Investigating Officer had been examined then the question of enmity would have been exposed. Due to non-examination of Investigating Officer any recovery and the place of occurrence has not been proved by the prosecution and hence, the impugned judgment of conviction and order of sentence passed by the learned court below shall be set aside.

ARGUMENTS OF THE STATE:

12. Learned counsel for the state on the other hand argued that there is ample evidence to convict the appellants and some of the arguments of the appellants counsel such as non-examination of the father of Abhinandan, non-examination of Investigating Officer, which seems defective, are only minor in nature and inconsistencies in the evidence. He submits that even if the father was not examined two injured persons have been examined, who are PW-1 Rukmani Devi and PW-4 Abhinandan Mehra. The evidence is further backed up by the evidence of the doctor, who has clearly indicated the injuries which is apparent in the injury report of both the injured marked as Ext.2 and 2/1 and hence the ocular

evidence is supported by the medical evidence and there is no way that the case against the appellants can be collapsed. Therefore, the conviction and sentences of the appellants as imposed by the learned court below is fully sustainable.

FINDINGS:

13. Having heard counsel for both sides, gone through the records of the case, the evidences and in the facts and circumstances, I find reason for dispute between the parties that has come out from the evidence is land dispute. Appellants have been convicted under sections 307/34, 323/34 and 380/34 of IPC. The evidences taken in totality, it cannot be denied that an occurrence did not take place and there is also a supplementary affidavit seeking compromise and therefore, it would also go towards the fact that some occurrence of assault had taken place.

14. From the evidence of two injured PW-1 and PW-4 and their injuries report Ext.-2/1 and Ext.-2 respectively wherein it is stated by the Doctor or PW-5 that injuries sustained by both the injured were simple in nature and hence the offence under section 307/34 IPC was not intended at all by the appellants because if the ten appellants really wanted to murder the injured persons then they could have easily done so. But given the nature of injury that has been indicated to be simple in nature, therefore, offence under section 307/34 IPC is not made out and at the most the offence under section 323/34 IPC can be made out against all the appellants. Regarding conviction of the appellants under section 380/34 IPC, I find no evidence regarding the same as there has been no recovery. Therefore, for the conviction of the appellants under section 380/34 IPC, the benefit of doubt may be extended to the appellants.

15. The argument of the learned counsel for the appellants that prejudice has been caused to the appellants due to non-examination of Investigation Officer is not tenable because both the injured P.W.-1 and P.W.-4 were examined by the doctor or P.W.-5 and doctor has proved their injury viz Ext.-2 and Ext.2/1.

16. Therefore, based on aforesaid findings conviction of the appellants dated 4-3-2010 passed in S.T. No. 233 of 2008 by the Session Judge, Godda under section 307/34 IPC and 380/34 of IPC and its corresponding sentences are set-aside, but conviction of the appellants under section 323/34 IPC is sustained and upheld.

17. So, far as sentence under section 323/34 of IPC is concerned, I find that Appellant no.7 Kranti Mehra was 64 years old at the time of passing

of the impugned judgment and now after 10 years he would be 74 years old, the remaining appellants are also in their fifties and have faced rigor and vigor of trial and hence, I modify the sentence at this stage given the circumstances that have been indicated. The appellants are directed to undergo two months simple imprisonment for their conviction under section 323/34 of IPC with consolidated compensation of Rs. 10,000/- (Rupees ten thousand only) to be paid to both the injured persons PW-1 Rukmani Devi and PW-4 Abhinandan Mehra and in default the appellants shall further undergo S.I. for two months. The consolidated compensation may be received by PW-4, Abhinandan Mehra, on behalf of both PW-4 and PW-1. The aforesaid compensation amount may be deposited in the concerned court below. Appellant's bail bonds are cancelled. Learned concerned or successor court is directed to take steps to carry out the order of this court.

18. Accordingly, this appeal is partially allowed.

(RATNAKER BHENGRA,J) Jharkhand High Court,Ranchi Dated: 22nd January, 2021 (KNR)/NAFR