Rajesh Bhumij vs The State Of Jharkhand
2021 Latest Caselaw 1113 Jhar

                               [1]


     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (S.J.) No. 413 of 2010
(Against the judgment of conviction dated 20.05.2009 and the order of sentence
dated 22.05.2009 passed by the learned Additional District & Sessions Judge-II,
Chaibasa in Sessions Trial Case No. 173 of 2006)
                                     ------

Rajesh Bhumij, son of Bhaskar Bhumij, resident of village-Mahulsai, P.O. + P.S.- Muffasil, District- West Singhbhum ...... ..... Appellant Versus The State of Jharkhand ...... ..... Respondent

Heard through: Video Conferencing

------

CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA

------

For the Appellant         : Mr. Nisith Kumar Sahani, Amicus Curiae
For the State             : Mrs. Lily Sahay, APP
                                         -----

Heard Mr. Nisith Kumar Sahani, the learned Amicus Curiae as well as Mrs. Lily Sahay, the learned APP.

2. This appeal arises out of the judgment of conviction dated 20.05.2009 and the order of sentence dated 22.05.2009 passed by the learned Additional District & Sessions Judge-II, Chaibasa in Sessions Trial Case No. 173 of 2006, whereby and whereunder, the appellant was convicted under Sections 307 and 323 of the Indian Penal Code and was sentenced to undergo RI for six years and a fine of Rs.2000/- for the offence under Section 307 of the Indian Penal Code and in default of payment of fine three months RI was awarded and for the offence under Section 323 of the Indian Penal Code appellant was sentenced to undergo six months imprisonment. Both the sentences were directed to run concurrently.

3. The prosecution case, in brief, as per the fardbeyan dated 12.06.2006 of the informant PW-1 Jaishree Bhumij wife of PW-4 Pursottam Bhumij @ Budhram Bhumij is that there is a land dispute subsisting between her husband Pursottam Bhumij and his brother appellant Rajesh Bhumij from before. On 12.06.2006 at 10 a.m. her husband in order to demarcate the land with the assistance of a Government amin, had gone to [2]

Chaibasa to call the amin and returned back to home at 12 a.m. On seeing her husband returning home, her brother-in-law (bhaisur) Rajesh Bhumij abused him and, thereafter, came with a iron sabbal in his hand and assaulted her husband on his head and ear with an intention to kill him as a result her husband sustained injuries and her husband became unconscious. When she went to rescue her husband, then appellant Rajesh Bhumij assaulted her with a sabbal due to which she sustained injury on her right arm. On alarm her younger brother-in-law (devar) Sidiu Bhumij (PW-2) came and pacified the quarrel. The incident was seen by her neighbour.

4. On the basis of the fardbeyan of the informant Muffasil P.S. Case No. 89 of 2006 dated 12.06.2006 was registered against the appellant under sections 323, 325, 307 and 504 r/w34 of the Indian Penal Code. After completion of investigation, the police submitted the charge sheet under sections 341, 323, 325, 307 and 504 of the Indian Penal Code against the appellant Rajesh Bhumij and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed against the appellant under sections 341, 323, 324 and 307 of IPC against the appellant and trial was held. At the conclusion of the trial, the appellant was convicted and sentenced as aforesaid. Hence, this appeal.

5. Prosecution in support of its case has examined altogether six witnesses out of whom PW-1 Jaishree Bhumij is the informant of the case; PW-2 is Sidiu Bhumij, who is the brother-in-law (devar) of the informant; PW-3 is Manoj Tirki who is hearsay witness; PW-4 is Pursottam Bhumij, who is the husband of the informant; PW-5 is Arun kumar Singh, who is the Investigating Officer of the case and PW-6 is Dr. Swapan Kumar Singh, who is the doctor.

6. PW-1 Jaishree Bhumij is the informant of this case. PW-1 has stated in her evidence that on the day of occurrence her bhaisur Rajesh Bhumij came to her house and asked for partition of the land. Thereafter, her husband went to call government amin on 10 a.m. and returned back home at 12 p.m. and thereafter, her bhaisur Rajesh Bhumij started quarrelling with her husband. PW-1 further stated that when the quarrel aggravated then her bhaisur Rajesh Bhumij brought a sabbal and assaulted [3]

her husband on his nose, below his eyes and on his head. Her husband fell down and blood oozed out. Informant further stated that she was lifting her husband then, Rajesh Bhumij, chased her and during the course, she sustained injury on her shoulder. Her devar Sidiu Bhumij took her injured husband to Sadar hospital at Chaibasa.

7. PW-4 is Pursottam Bhumij @ Budhram is the husband of the informant. PW-4 in his evidence has stated that on the day of occurrence an altercation took place over the matter of agriculture. PW-4 went to call amin for partition of land and returned in the afternoon. PW-4 further stated that when he was talking to his younger brother then, in the mean time Rajesh assaulted him with sabbal on his head, fore-head and on the eyes due to which he sustained injuries and he fell down and became unconscious. His younger brother took him to the hospital. PW-4 further stated that accused Rajesh also assaulted his wife (PW-1) by sabbal. He was treated in the Sadar hospital for two months. He regained sense after a week.

8. PW-2 Sidiu Bhumij is the brother-in-law of the informant. PW- 2 has stated in his evidence that on the day of occurrence Pursottam (PW-4) and his wife PW-1 were quarrelling. PW-2 further stated that because of the quarreling he went to the adjacent house because both used to quarrel. Rajesh also went there. Pursottam was saying filthy words. PW-2 further stated that he was not examined by the police. Pursottam had injury on his nose and forehead and he was treated in Hospital. PW-2 has proved his signature on the fardbayan which was marked as Ext.-1. In his cross- examination PW-2 stated that Rajesh did not cause hurt.

9. (i) PW-6, Dr. Swapan Kumar Singh had examined the injured PW-1 Jaishree Bhumij and found the following injuries on her perso:

1. Abrasion ¼ inch over right shoulder red in colour.

2. Swelling ½ inch in diameter over right elbow.

Doctor opined that hard and blunt object was used to cause injury to Jaishree Bhumij and nature of injury was simple. Doctor has proved prepared the injury report of Jaishree Bhumij which was marked as Ext.-3.

(ii) Doctor had further examined the injured PW-4 Pursottam [4]

Bhumij and found following injuries on the person of PW-4:

1. Lacerated wound 5 ½'' x ½'' x ½'' x bone deep over right eyebrow extending to tip of nose with bleeding.

2. Lacerated wound 2 ½'' x 1 ½'' x bone deep over left parital areas with bleeding.

Doctor on the basis of X-Ray report of skull found fracture of nosal bone and opined that injuries caused to Pursottam Bhumij were grievous in nature and caused by hard and blunt substance. Doctor has proved the injury report of PW-4 which was marked as Ext.-3/1.

10. PW-5, S.I. Arun Kumar Singh is the Investigating Officer of this case. PW-5 proved the fardbeyan of the informant Jaishree Bhumij which was marked as Ext.-2, an endorsement on the fardbayan in the pen of Ramanuj Verma, in-charge O/C which was marked as Exbt.-2/1 and formal FIR which was marked Ext.-2/2. In his cross-examination Investigating Officer deposed that in his statement Sidiu Bhumij (PW-2), stated before him that accused had assaulted Pursottam Bhumij.

ARGUMENTS ON BEHALF OF APPELLANT:-

11. Mr. Nisith Kumar Sahani, the learned Amicus Curiae has first and foremost taken this Court through the evidence of the different prosecution witnesses and pointed out from the evidence of PW-1 Jaishree Bhumij, who is the informant and submitted that in para-2 of her deposition it is revealed that her husband had fallen down and got injured and, therefore, started bleeding and hence, the injury was a result of falling down. He has also pointed out from para-3, that the appellant had chased her for assaulting. Learned counsel, therefore, says that she has only said that the appellant had only chased her and she has not made a reference of assault on her made by the appellant. Finally, from the evidence of PW-1, the learned Amicus Curiae submits that there was a subsisting land dispute between both the parties over land and hence, fault could therefore be very much lie on the part of the informant's side also.

12. From the evidence of PW-2, Sidiu Bhumij who is the brother of both Purusottam Bhumij as well as the appellant Rajesh Bhumij, the learned Amicus Curiae says that he has also in para-3 of his evidence, [5]

indicates that both the informant and her husband PW-4, who happens to be husband and wife always used to quarrel with each other and therefore, there existed a domestic dispute in the informant's family and there was no such enmity with the appellant and hence, fault lies on the informant's side. He has pointed out to para-4 of his evidence and submitted that PW-2 has deposed that Pursottam was talking nonsense. Learned counsel further submitted that in the examination-in-chief of PW-2, no assault is referred to by the appellant. In his cross-examination PW-2 deposed that Pursottam was injured due to falling on the door and appellant had not assaulted him. The learned Amicus Curiae has then referred to the evidence of PW-3 and pointed out that this witness is the brother-in-law of Pursottam Bhumij and his evidence is hearsay and is of not much value.

13. The learned Amicus Curiae has then taken this Court to the evidence of PW-4 Pursottam Bhumij, the alleged injured and pointed out that he has deposed in para-3 that he had fallen down and become unconscious. Learned counsel then, argued that if PW-4 was unconscious then how PW-4 knew that appellant had assaulted his wife with sabbal. Learned counsel, therefore, says that this statement seems to be false and, therefore, the evidentiary value of PW-4 is not of trustworthy or of a reliable witnesses. From para-6 of the evidence of PW-4, the learned Amicus Curiae submits that there is no evidence of bloodstained clothes and that no bloodstained clothes were given to the police and hence if blood stained clothes were not given to the police then there would be no corroboration of injuries, therefore, the guilt of the appellant under Sections 307 and 323 of the Indian Penal Code cannot be sustained. The learned Amicus Curiae has then referred to para-9 of the evidence of PW-4 and pointed out that it revealed from this part of the evidence that place of occurrence is a populated area but no independent witness was examined.

14. The learned Amicus Curiae has then taken this Court to the evidence of PW-5 Arun Kumar Singh, who is the Investigating Officer of this case and pointed out from his deposition in para-11 that the Investigating Officer had not seized any bloodstained clothes and hence due to non-seizure of any bloodstained clothes, injury or assault could not be corroborated and therefore, no offence under Section 307 of the Indian [6]

Penal Code can be proved. Investigating Officer has also submitted at para- 11 that he did not find any independent witness even though the village was densely populated and hence, non-examination of independent witnesses weakens the case of the prosecution.

15. Referring to the evidence of doctor, The learned Amicus Curiae says that though the injuries on PW-1 Jaishree Bhumij are indicated to be abrasion and swelling which are anyway simple injuries and she herself, has not mentioned about any assault by the appellant on her. Rather PW-1 has deposed that she was injured by falling on the ground. Learned counsel also says that from the evidence of the doctor also it is apparent that the injuries were caused by hard and blunt substance and there were no injuries by sharp cutting or pointed dangerous weapons, which would indicate the absence of deadly nature of the assault if any. Regarding the injury of PW-4 Pursottam Bhumij, the learned Amicus Curiae also points out that in his cross-examination, the doctor has revealed that there was no X-ray report to support the injuries.

16. At the end, the learned Amicus Curiae has argued that from the evidences so far it can be seen that the offence under Section 307 of the Indian Penal Code is surely not made out because the injuries on the PW-1 informant are simple and are merely abrasions and swelling and that too which can be said to be resulted by fall because she has herself not imputed any assault on the appellant. The younger brother of the injured PW-4, Pursottam Bhumiz is PW-2 Sidiu who has also deposed that there was no assault by the appellant, therefore, it can very well be said that the injury was the result of fall. Regarding the injury of PW-4 Pursottam, learned counsel says that doctor has deposed that report was not accompanied by X- Ray report and the doctor himself has stated that such injuries are possible by falling on stony places and doctor has also stated that such injuries were not dangerous to life. Learned counsel for the appellant submits that injuries due to fall is not dangerous to life and hence appellant deserves to be acquitted of the offence under Section 307 of the Indian Penal Code.

ARGUMENTS ON BEHALF OF STATE:-

17. Mrs. Lily Sahay, the learned counsel for the State, on the other [7]

hand, argue that the offence under Section 307 of the Indian Penal Code is definitely and surely made out. Learned counsel has argued that though there was a dispute subsisting between both the parties or the brothers but appellant cannot be absolved because dangerous weapon sabbal was used which is a heavy iron rod and during the course of dispute appellant had gone and took the sabbal which indicates that appellant was determined to commit grievous injuries to his own brother. Learned counsel also submits that the doctor has indicated that nose bone of PW-4 Pursottam Bhumij was fractured and hence injuries were of grievous in nature. Learned counsel has argued that only because of the opinion of the doctor that the injury may be a result of fall, prosecution case not be wholly thrown out because the other prosecution witnesses have supported the prosecution case including the injured witnesses PW-1 and PW-4.

18. Referring to the evidence of PW-4 Pursottam Bhumij, the learned counsel for the State has submitted that his evidence is consistent with the prosecution story. The evidence of land dispute though cutting both ways does not absolve the kind of attack which was made and on PW-4 Pursottam Bhumij, who happens to be the own brother of the assailant. Regarding no independent witnesses coming forward, learned counsel for the State submits that this is only but normal. No one wants to become a part of the police case, moreover, it was a family dispute, in which, people might not want to have become involved in. Hence, learned counsel for the state lastly, submitted that based on all these evidences impugned judgment of conviction and order of sentence passed by the learned court below shall be sustained and upheld by this court.

FINDINGS

19. Having heard both counsels, having gone through the records of the case and the evidences and from the facts and circumstances of the case, I find that the informant or PW-1 Jaishree Bhumij in her fardbayan stated that appellant Rajesh Bhumij assaulted her husband PW-4 Pursottam Bhumij over a dispute regarding the partition of the land. She stated that the appellant who is her bhaisur had abused and assaulted her husband because her husband went to call government amin in order to demarcate the land and when her husband returned, the appellant went inside his house and [8]

came with back with sabbal and started assaulting PW-4 with an intention to kill him. PW-1 in her deposition corroborated the injuries inflicted by the appellant on her husband. From the evidence, I find that informant PW-1 had also sustained simple injury during the occurrence which is supported by the medical evidence of the doctor viz. Ext.-3. Further, PW-4 in his deposition has deposed that when he returned home, the appellant herein assaulted him with sabbal due to which he sustained injury on his head and below his eyes. The doctor or PW-6 in his deposition describes two injuries on the person of P.W.4 - lacerated wound 5 ½'' x ½'' x ½'' x bone deep over right eyebrow extending to tip of nose with bleeding and lacerated wound 2 ½'' x 1 ½'' x bone deep over left parital areas with bleeding. Doctor opined that the injuries were grievous in nature and caused by hard and blunt substance. Hence, the ocular evidence of the injured PW-4 as to assault is corroborated by the medical evidence of the doctor. But, the doctor in court question has deposed that the injuries caused to the injured were not dangerous to life. As far as intention is concerned the appellant had assaulted his brother PW-4 because he wanted the land to be partitioned. In the deposition of PW-1 and PW-4 it has come that the injured or PW-4 had gone to call government amin for the measurement of the land and on this the appellant became aggravated and he assaulted the injured. If there had been the intention of the appellant to kill his own brother or PW-4, appellant would have definitely finished his brother as at the time of assault, appellant was armed with sabbal (iron rod) and even as per own deposition of injured PW-4 given at para-3, after the assault PW-4 had fallen down and become unconscious but appellant did not attack further. So, I find that there was no intention on the part of the appellant to kill the injured or PW-4.

20. Hence, charge under section 307 IPC could not be made out but, looking into the deposition of injured witnesses PW-1 and PW-4, which is corroborated by the medical evidence viz. Ext.-3 and Ext.-3/1 and injury caused to PW-4 being grievous in nature, appellant Rajesh Bhumij is now convicted under section 325 IPC for causing grievous hurt to PW-4.

21. Accordingly, so far as conviction of the appellant under section 307 of IPC is concerned, the impugned judgment of conviction dated 20.05.2009 passed by the learned Additional District & Sessions Judge-II, [9]

Chaibasa in Sessions Trial Case No. 173 of 2006 is set-aside and now conviction is modified to one under section 325 of IPC. The conviction of the appellant passed by the learned court below under section 323 of IPC is sustained and upheld. Regarding sentence, this Court is informed by the learned counsel for the State that the appellant has already undergone two years two months in custody and in this regard affidavit has been filled by the State documented with memo no. 87 dated 04-01-2021, issued by the Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi. In view of that, this Court thinks that period undergone by the appellant is considered as sentence sufficiently served and no new fresh sentence is being imposed for custodial sentence at this stage. However, the appellant is directed to pay compensation of Rs. 10,000/- to the injured PW-4 Pursottam Bhumij for causing him grievous injury to him within four months from the date of receipt of copy of this judgment and in default of which appellant will have to undergo SI of 6 (six) months. The compensation amount may be received by the injured PW-4 Pursottam Bhumij himself or by his wife PW1 Jaishree Bhumij or may be deposited in the learned court below. The appellant is on bail, he will be discharged from the liability of bail bond after payment of the aforesaid compensation amount. The concerned court below or the successor court shall take steps to carry out the order of this court.

22. This Court is thankful to Mr. Nisith Kumar Sahani, the learned Amicus Curiae for his assistance rendered to this Court. Member Secretary, JHALSA is directed to pay remuneration to Mr. Nisith Kumar Sahani, the learned Amicus Curiae as per rules.

23. Accordingly, this appeal is partly allowed.

(Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi, Dated 05th March, 2021 Madhav- NAFR