Hiralal Sahu vs The State Of Jharkhand
2021 Latest Caselaw 2469 Jhar

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                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                             Cr. Revision No. 311 of 2012

                1. Hiralal Sahu
                2. Sanju @ Sanjay Kumar Sahu @ Sanjay Sahu @ Sanju Sahu
                   Both petitioner no. 1 and 2 are sons of Jethu Sahu
                3. Jethu Sahu, son of Late Bucha Sahu
                   All are resident of village Maszid Gali, Torpa, P.O. and Police
                   station -Torpa, District-Khunti.       ...     ...     Petitioners

                                         -Versus-

                     The State of Jharkhand         ...       ...         Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

08/22.07.2021

1. Heard Mr. Rajesh Singh, learned counsel appearing on behalf of the petitioners.

2. Heard Ms. Ruby Pandey, learned counsel appearing on behalf of opposite party-State.

3. The present criminal revision is directed against the judgment dated 21.01.2012 passed by the learned Additional Judicial Commissioner-I, Khunti in Cr. Appeal No. 114/2010. The appellate court has dismissed the appeal so far as offence under section 323 IPC is concerned, though with modification of sentence. The sentence under Section 323 of IPC was reduced from rigorous imprisonment of six months to rigorous imprisonment of three months on the ground that the offence was the first offence of the petitioners. The learned appellate court has also set-aside the conviction of the petitioners for alleged offence under Sections 325 and 341 of the Indian Penal Code.

4. The judgment of conviction was passed by the learned Sub-Divisional Judicial Magistrate, Khunti vide judgment dated 24.07.2010 convicting the petitioners for offence under Sections

341/323/325 of the Indian Penal Code in G.R. Case No. 262/2006 in T.R. No. 218/2010 arising out of Torpa P.S. Case No. 22/2006 dated 10.05.2006.

Arguments of the petitioners

5. Learned counsel for the petitioners submits that the petitioners were convicted under Sections 341, 323 and 325 of the Indian Penal Code by the learned trial court and maximum punishment of rigorous imprisonment of six months was given to the petitioners for offence under Sections 323 of the IPC. He further submits that before the learned appellate court, only the conviction under Section 323 of IPC was sustained and the learned appellate court reduced the sentence to three months. So far as conviction under Sections 341 and 325 of IPC is concerned, the petitioners were acquitted for the said offences. He submits that the present offence of the petitioners is the first offence.

6. The learned counsel further submits that so far as petitioner Nos. 1 and 2 are concerned, they had surrendered before the learned court below on 13.04.2012 and petitioner No. 3 had surrendered on 02.05.2012 and they were directed to be enlarged on bail by this Court vide order dated 11.05.2012 and thereafter a few days must have been taken by them to furnish the bail bond. He submits that petitioner Nos. 1 and 2 have certainly remained in judicial custody for more than 15 days and so far as petitioner No. 3 is concerned, he has remained in judicial custody for more than 10 days. The learned counsel further submits that the petitioner Nos. 1, 2 and 3 were 27, 23 and 50 years of age respectively on the date of conviction i.e., 24.07.2010. He also submits that the First Information Report in the present case is relating to the incident of 29.03.2006, but the F.I.R. was lodged after a considerable delay of one month and 13 days on 10.05.2006. He further submits that the petitioners have faced the rigorous of criminal case for a long period and considering the

aforesaid facts and circumstances of the case, some sympathetic view may be taken and the sentence be modified to the period already undergone in judicial custody by the petitioners. He also submits that some fine amount may be imposed by this Court which may be remitted to the victim of the case. The learned counsel submits that the petitioner Nos. 1 and 2 are the nephew of the informant and petitioner No.-3 is the brother of the informant and there is land dispute between the parties. Arguments of the opposite party-State

7. Learned counsel appearing on behalf of the opposite party- State, on the other hand, has submitted that although the learned trial court had convicted the petitioners for offence under Sections 341, 323 and 325 of the Indian Penal Code as a fracture was found in the body of the victim which was supported by X- Ray plate. However, the learned appellate court rejected the evidence of the X-ray plate on the ground that the same was not exhibited by the doctor but was exhibited by the investigating officer of the case and was held to be formally not proved and the petitioners were given the benefit of doubt and were acquitted for offence under Section 325 of the IPC. She also submits that P.W.-6 (the doctor) was also examined who had seen the initial injury on the body of the victim and given the injury report and had opined that the injuries were simple in nature, but for injury no.-3, the order was reserved.

8. The learned counsel for the State also does not dispute the fact that the petitioners do not have any criminal antecedent. However, she submits that in case this Court is inclined to modify the sentence of the petitioners, some fine amount/victim compensation may be imposed and be remitted to the victim upon due identification.

Findings of this Court

9. The prosecution story, in brief, as per the written report of the informant is that on 29.03.2006, he had gone to the house of his brother-in-law and returned about 1:00 p.m. and upon returning, he saw his wife in injured condition and blood was oozing out from her head and right leg was swollen and when he asked her about the injury, his wife told him that his nephew Hira Lal Sahu (petitioner no.1) , Sanju Kumar Sahu (petitioner no.2) and his brother Jethu Sahu (petitioner no.3) had assaulted her with lathi and caused injury to her. It was alleged that the cause of dispute was that there was dispute between the informant and his brother regarding partition of land and Bucha Sahu tried to erect wall in his land.

10. On the basis of the written report, a sanha was entered on 29.03.2006 and thereafter on receipt of the injury report, the First Information Report was registered on 10.05.2006 being Torpa P.S. Case No. 22/2006. After completion of investigation, the charge-sheet was submitted for offence under Sections 341/323/325/34 of IPC against the accused persons and cognizance was also taken under the aforesaid sections. The charges were ultimately framed for offence under Sections 341/323/325 of IPC against all the three accused persons, which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

11. At the stage of trial, altogether six witnesses were examined on behalf of the prosecution; out of them P.W.-2 is the injured victim, P.W.-4 is the informant of the case and P.W.-5 is the investigating officer of the case. P.W.-6 is one of the doctors who had examined the injured victim. P.W.-1 was declared hostile and P.W.-3 had, interalia, stated that he had no personal knowledge about the occurrence. Therefore, the material witnesses are P.W-2, 4, 5 and 6.

12. P.W.-2 is the injured victim of the case. She has stated that the occurrence was of 10:00 am in the day and all the three accused persons started erecting wall of bricks in the courtyard in front of her house and when she protested not to erect the wall in her land, the accused persons assaulted her with lathi, danda and caused injury. She has specifically stated that the petitioner No.1 assaulted her with lathi on her head and her head was broken and bleeding was started and petitioner no.2 gave blow of lathi on her right leg and her leg was broken and petitioner no.3 ordered to assault. She has also stated that her husband was not in her house and when her husband came at 1:00 pm, he took her to the hospital and lodged the case in the police station. In her cross-examination, she has further supported the prosecution case. She has also stated that no one came at the place of occurrence in spite of the fact that the she raised alarm. This witness has also fully supported the prosecution case and there is no material contradiction in her evidence. P.W.-4 is the informant of the case who has deposed that on the date and time of occurrence, he was not at home, but when he came back at about 1:30 p.m., he saw his wife (P.W.-2) in injured condition and blood was oozing out from her head and her right leg and his wife told him that the accused persons had assaulted her with lathi. He thereafter brought her to the police station and told about the occurrence and from thana she was taken to the hospital for treatment and upon X-ray report, the doctor found that the leg of his wife was broken and plaster was done. In his cross-examination, he has stated that the petitioner No.-3 is his brother and petitioner Nos. 1 and 2 are his nephew. Although, the informant of the case is not the eye-witness and he never claimed to be the eye-witness, but upon coming to his house, he saw his wife in injured condition and informed the police about

the occurrence and taken the victim wife to the hospital where she was treated by the doctor.

P.W.-5 is the investigating officer of the case, who proved the requisition written and signed by the then officer-in-charge of Torpa Police Station for treatment of injured victim (P.W.-2) which was marked as Exhibit-1. He also proved the injury report written by Doctor D. K. Oraon which was marked as exhibit-2 and proved his endorsement which was marked as exhibit-3. He has stated that he took the investigation and recorded the re- statement of the informant and inspected the place of occurrence and gave the description of place of occurrence. He has also exhibited the second injury report prepared by another doctor based on X-ray report which was marked as exhibit-4. P.W.-6 who was the doctor in connection with the injury report marked as exhibit-2 and exhibited by the investigating officer of the case. He has fully supported the prosecution case and stated that on 29.03.2006, he was posted in Referral Hospital, Torpa and he examined the victim at 3:15 p.m. and found the following injury in her body: -

(i) Lacerated wound over 2" x Muscular deep on right parietal bone of scalp.

(ii) Painful swelling lateral side of right leg. Injured is examined for X-ray of right leg A/P and lateral view. Nature of injury are simple caused by hard and blunt. Opinion for injury are reserved and injury Nos. 1, 2 and 3 are reserved.

13. Thus, in the present case, there are two injury reports; one is exhibit-2 though exhibited by the investigating officer of the case, but the concerned doctor was also examined, and the other is exhibit-4 which was exhibited by the investigating officer, but the concerned doctor was not examined.

14. The petitioners did not lead any defence evidence, but during their examinations under Section 313 of Cr.P.C., they have denied the allegations.

15. The learned trial court recorded its finding at para-18 as follows: -

"In this case, P.W.-2, who is injured and she has fully supported her case and doctor P.W.-6 has corroborated the injury on the informant and exbt-2 and exbt-4 corroborates injury on the informant and exbt-4 corroborates that the injury was grievous in nature and P.W.-4 who is the informant of this case, has saw the injured in injured condition when he came in the house. In the cross-examination, of P.W.-2, it has come that on hulla no one has come. Hence, none support of P.W.-1 and P.W.- 3 does not gave adverse effect to the prosecution case. P.W.-2 who is injured has fully supported her case and nothing has come in her cross-examination to disbelieve her statement, and her injury was corroborated by the doctor and the injury report exbt-2 and exbt-4 from the statement of P.W.-5 who is the I.O., place of occurrence is established. Hence, from the above fact prosecution has been able to prove the charges against accused persons beyond all reasonable doubt."

16. The learned trial court after recorded the aforesaid finding was of the view that the prosecution has been able to prove the case against the petitioners beyond all reasonable doubts for offence under Sections 341, 323 and 325 of the Indian Penal Code and accordingly convicted the petitioners under the said sections.

17. The learned appellate court also scrutinized the evidences on record and found that the X-ray report containing the second injury report was exhibited by the investigating officer of the case and the concerned doctor was not examined and accordingly was of the view that the exhibit-4 i.e., the second injury report was not proved and accordingly, the grievous hurt of the offence was not proved. Consequently, held that offence under Section 325 of IPC was not proved beyond all reasonable doubts and granted benefit of doubt to the petitioners for offence under Sections 325 of IPC.

18. The learned appellate court further found that the accused were digging land for erection of wall and occurrence took place

and found that the victim was not proceeding in any direction so as to alleged any restrain against her by the accused. Therefore, the learned appellate court was of the view that no case under Section 341 of IPC was made out and acquitted the petitioners for offence under Section 341 of IPC also.

19. So far as offence under Section 323 is concerned, the learned appellate court recorded its finding at para-14 as follows : -

"So far the charge u/s 323 IPC is concerned, it is well established from the documentary evidences Ext-2 and evidence of P.W.-6 Dr. Dilip Kumar Oraon Lialabati Devi P.W.-2 had got injury on her body and injuries were caused by hard and blunt substance and lathi comes within the purview of hard and blunt substance. Injured is a best witness. The evidence of P.W.-2 Lilabati Devi is intact and there is nothing on the record to disbelieve her statement made in chief. The I.O. has inspected the place of occurrence and case was lodged on 10-05-06 and occurrence is of the date 29-03-06. It is apparent that the Ext-3 endorsement was proved by P.W-5 I.O. Shyam Lal Tudu on the written report made in the pen of Sajiv Kumar of Torpa P.S. in his pen and signature. From the endorsement (ext3), it appears that the case has been registered after receiving injury report on 10-05-06 and ext-1 the requisition of injury report dated 29.03.2006 in the pen of Sanjiv Kumar officer-in-charge Torpa also shows that injured Lialabati devi P.W.-2 was sent to hospital. Therefore, her appearance before the Police station and hospital is evident that she appeared before the police station on 29-03-06 and made statement regarding her injury and thereafter she was examined. Thus, it is also apparent that it is a procedural delay in lodging F.I.R. on 10-05-06, the injured has committed no delay in lodging the case and she was examined for injury on the same day as Ext-2 corroborates and evidence of P.W.-6 doctor Dilip Kumar Oraon and evidence of P.W.4 Nand Kishore also corroborate it. So, I find that lower court has rightly held guilty all the three appellant accused persons u/s 323 IPC."

20. The learned appellate court refused to extend the benefit of Probation of Offenders Act to the petitioners on the ground that the offence was done against a woman. However, the learned appellate court was found that there was no previous

conviction of the petitioners and reduced the sentence to three months rigorous imprisonment for offence under Section 323 of IPC.

21. This Court finds that the learned court below has carefully scrutinized the evidences on record and given concurrent findings so far as conviction of the petitioners for offence under section 323 IPC is concerned. This Court finds that the injured victim has fully supported the prosecution case and her evidence is supported by the evidence of her husband, investigating officer of the case as well as the doctor. The oral evidence of the victim matches with the medical evidence and the injury report (exhibit-2) has been proved. The witnesses have been thoroughly cross-examined and there was no material contradiction/inconsistency in their evidences. The defence was in total denial of the incident in their statement under Section 313 Cr.P.C. and has not led any defence evidence. This Court does not find any illegality or perversity or any material irregularity in the impugned judgment of conviction of the petitioners under section 323 of IPC. Accordingly, the conviction of the petitioners is upheld.

22. So far as the sentence is concerned, the learned appellate court has already taken a lenient view considering the fact that the offence is the first offence and reduced the sentence of the petitioners to three months rigorous imprisonment.

23. However, considering the fact that the incident is of the year 2006 and more than 15 years have elapsed from the date of the incident; the present age of the petitioner no. 3 is 65 years, the ends of justice will be served if the sentence of the petitioner no. 3 is modified to some extent considering his present age and some victim compensation is directed to be given to the victim. Accordingly, the sentence of the petitioner no. 3 is modified and limited to the period he already remained in judicial custody in

connection with the present case with a fine of Rs.1,000/- and victim compensation to the extent of Rs. 7,500/-. The fine amount as well as the amount of victim compensation is directed to be deposited by the petitioner no. 3 before the learned court below within 2 months from the date of communication of this order to the learned court below. The amount of victim compensation is directed to be remitted to the victim/wife of the informant after due identification. In case of non-deposit of the fine amount as well as victim compensation amount within the stipulated time frame, the bail bond furnished petitioner no. 3 will be immediately cancelled and he would serve the sentence as imposed by the learned court below.

24. So far as sentence of the petitioner no. 1 and 2 is concerned, the same do not call for any interference.

25. The bail bond furnished by the petitioner no. 1 and 2 are cancelled.

26. Pending interlocutory applications, if any, are closed.

27. Let the lower courts record be sent back to the court concerned.

28. Let a copy of this order be communicated to the learned court below through 'E-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul