Jharkhand High Court
Sita Ram Banra vs The State Of Jharkhand on 22 November, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 505 of 2010
(Against the judgment of conviction dated 15.02.2010 and the order of sentence dated
18.02.2010, passed by the learned Sessions Judge, West Singhbhum, Chaibasa in
Sessions Trial No. 03 of 2009)
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Sita Ram Banra, son of Late Damu Banra, R/o Village Garha Raja Basa,
P.O.- Chaibasa, P.S.- Muffasil (Pandrasali), District-West Singhbhum
... ... Appellant
Versus
The State of Jharkhand ... .... Respondent
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mrs. Bakshi Vibha, Amicus Curiae
For the State : Mr. Tapas Roy, APP
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By Court:
Heard Mrs. Bakshi Vibha, the learned Amicus Curiae and
Mr. Tapas Roy, the learned APP.
2. The present criminal appeal is preferred against the judgment of
conviction dated 15.02.2010 and the order of sentence dated 18.02.2010,
passed by the learned Sessions Judge, West Singhbhum at Chaibasa in
Sessions Trial No. 03 of 2009, whereby and where under, the appellant was
convicted under section 307 of the Indian Penal Code and sentenced to
undergo RI for five years with a fine of Rs.1000/- and in default of payment
of fine, appellant was to further undergo RI for three months.
3. The case of the prosecution, in brief, as per the fardbeyan dated
03.09.2008 of the informant PW-1 Sheela Banra recorded at Sadar hospital,
Chaibasa on 03.09.2008 at 06:30 pm by S.I. of Pandrasali O.P. is that her
husband was posted at Darbhanga in Bihar Military Police and she was
living in her house alone. On 03.09.2008, at about 1:30 pm, she had gone to
take bath in a nala behind the house of Omin Sidiu Banra (PW-6). At about
2:00 pm, appellant Sita Ram Banra, who happens to be the uncle of her
pattidar, came there having a sword in his hand and said that she had killed
his grandson by administering poison and threatened to kill her. Informant
declined the allegation, then, Sita Ram Banra assaulted on her head, left
hand and right hand with sword. Informant further stated that she in an
injured condition went to the house of Manki, but, the accused chased her
with sword in his hand. She further stated that the villagers snatched the
sword from the hands of Sita Ram Banra and villagers brought her to Sadar
Hospital for treatment.
4. On the basis of fardbeyan, Muffasil (Pandrasali O.P.) PS Case
No. 70 of 2008 dated 03.09.2008 was registered under sections 324, 326 and
307 of the Indian Penal Code. After the investigation, the charge sheet was
submitted against the appellant under sections 324, 326 and 307 of IPC and
cognizance of the offences were taken and the case was committed to court
of Sessions. Charge was framed under section 307 of the Indian Penal Code
and trial was held. At the conclusion of the trial the appellant was convicted
and sentenced as aforesaid. Hence, this appeal.
5. Prosecution has altogether examined nine witnesses out of
whom PW-1 Sheela Banra is the informant of this case; PW-2 Yudhisthir
Tanti and PW-4 Sajawal Banra are the seizure list witnesses; PW-3 is Jogari
Banra; PW-5 is Gandhi Banra; PW-6 is Omin Sidiu Banra; PW-7 Gajendra
Banra, is hearsay witness; PW-8 Krishnadeo Prasad, who is the
investigating officer of this case and PW-9 Dr. Ramjee Bhagat, who had
examined the injured informant.
6. PW-1 Sheela Banra, is the informant of this case. Informant has
stated in her evidence that on 03.09.2008 at 2:00 pm, she was taking bath in
a nala situated in her village. In the meantime Sita Ram Banra, who happens
to be her uncle-in-law, came there armed with sword and said that she had
killed his grandson by administering poison and also threatened to kill her.
Thereafter, accused Sita Ram Banra assaulted her with sword on her head,
left hand and right hand with an intention to kill her. PW-1 further stated
that she in an injured condition escaped from there and reached the house of
Manki of the village and informed about the occurrence to the villagers
including Yudhishthir Tanti (PW-2) and Sajawal Banra (PW-4). In the
meantime Sita Ram Banra reached there armed with sword, with an
intention to kill her, but, Yudhishthir Tanti and Sajawal Banra snatched the
sword from his hand. Informant further stated that the villagers took her to
Sadar hospital, Chaibasa for treatment and during treatment her X-ray was
also taken and four X-ray plates were produced in court, which were marked
as Material Exts. I to I/III. Informant has recognised her signature and
signature of Yudhisthir Tanti on fardbeyan which were marked as Ext.-1 and
Ext.-1/1 respectively. In her cross-examination, she deposed that on her
alarm Omin Sidiu Banra came there. She further stated that she had not
handed over the x-ray plates to the police rather the same has been produced
in Court today.
7. PW-2 Yudhisthir Tanti and PW-4 Sajawal Banra are the seizure list
witnesses to the seizure of sword. PW-2 stated that on halla he went to the
home of Manki and there he saw injuries on the body of the informant. PW-
2 further stated that informant had sustained injuries on her head and left
hand. PW-4 stated in his evidence that on halla, he went to the nala and
there he saw informant in an injured condition and informant was running
towards the house of one Manki Rajendra Banra and accused was chasing
her armed with sword. Thereafter, he snatched the sword from the hands of
the accused Sita Ram Banra and handed the sword to Yudhistir Tanti. PW-2
has recognised his signature and signature of PW-4 Sajawal Banra on the
seizure list of sword which were marked as Ext.-1/2 and Ext.-1/3
respectively.
8. PW-3 is Jogari Banra and PW-6 is Omin Sidiu Banra and both have
stated in their evidence that on hearing halla they went to the place of
occurrence and saw that accused Sita Ram Banra was assaulting the
informant with sword. Both PW-3 and PW-6 have further stated that the
informant had sustained injuries on her head and hand and blood oozed out.
Both these witnesses further stated that informant ran away and accused
chased her with sword.
9. PW-8 Krishnadeo Prasad, is the Investigating Officer of this
case. Investigating Officer has stated in his evidence that on 03.09.2008 he
was posted as in-charge Sub-Inspector of Pandrasali Outpost and he had
recorded the fardbayan of the injured informant at Sadar hospital, Chaibasa.
Investigating Officer has proved the fardbayan and endorsement on the
fardbayan which were marked as Ext.-2 and Ext.-2/1 respectively and
further proved the formal FIR which was marked as Ext.-3. Investigating
Officer further stated that he had issued the injury requisition of the
informant which was marked as Ext.-4. Investigating officer further stated
that Sajawal Banra, Yudhisthir Tanti and villagers had produced the sword
before him, snatched from the accused and in presence of Sajawal Banra
and Yudhishthir Tanti, the production-cum-seizure list of sword was
prepared. Investigating Officer has proved the production-cum-seizure list
which was marked as Ext.-5.
10. PW-9 is Ramjee Bhagat, who had examined the injured
informant PW-1 Sheela Banra and found the following injuries on her
person:-
(i) Incised wound with bleeding - 4"x1/2" x deep to bone over left
palm- advised x-ray of left hand
(ii) Incised wound - 1" x ¼" x muscle deep dorsou of left hand
(iii) Incised wound - 1 ½"x1/4"x muscle deep left thenar iminence
(iv) Incised wound - 1 ½" x 1/4"x muscle deep left forearm
(v) Incised wound - 1"x1/4"x muscle deep over left arm
(vi) Incised wound - 3''x1/4" x scalp deep mid vertex transversally -
X-ray of scull advised.
Doctor opined that injuries no. (ii) to (v) were simple in nature
caused by sharp cutting weapon. PW-9 had reserved his opinion with respect
to injury no. (i) and (vi) till X-ray report, which was also caused by sharp
cutting weapon. Doctor further stated that injury no. (vi) would have been
fatal in absence of medical facilities. PW-9 further stated that injuries no. (I)
and (vi) were simple in nature. PW-9 doctor has proved the injury report
which was marked as Ext.-6.
ARGUMENTS ON BEHALF OF APPELLANT
11. Mrs. Bakshi Vibha, learned amicus curiae, has argued that in
this case informant PW-1 Sheela Banra is the sole witness or eyewitness to
the occurrence apart from PW-9 Dr. Ramjee Bhagat and PW-8 Investigating
Officer. Learned counsel says that to convict the appellant on the basis of
sole testimony of a single witness would vitiate the judicial process. Amicus
has pointed out from the evidence of the PW-1 informant and argued that
she had not initially raised alarm and only when she was assaulted, then she
raised alarm. Amicus submitted that on alarm of the informant, PW-3 and
PW-6 had come there and, therefore, they are not witnesses to the assault
and, hence, no other witness can say anything about the actual assault that
occurred in the manner in which it was portrayed. Amicus further argued
that in the light of the above, PW-2 to PW-7 are hearsay witnesses and they
have not seen the occurrence at all and, therefore, no independent witness
was examined who could be relied upon to make out a substantial case
against the appellant.
12. Learned amicus also argued that in the light of the doctor's
opinion that all the injuries are simple in nature, the offence under section
307 of the Indian Penal Code cannot be made out rather at the most it would
fall under Section 323 of the Indian Penal Code. Amicus has further argued
that even the injury that could be significant and alleged to be made on the
vital part of the body such as head is simple in nature. Amicus further
argued that X-ray report was available, but, the doctor has not given any
opinion about the same.
13. Regarding the alleged weapon of assault, amicus submitted that
the sword which is said to have been the weapon of assault, was neither
produced in the Court nor it was sent to the Forensic Science Laboratory for
examination. Further, amicus pointed out para-15 of cross-examination of
PW-8 and submitted that after the arrest of the appellant, nothing was
recovered from the house of the appellant. Seizure-list witnesses i.e. PW-2
and PW4 have not given any description of the alleged assault. Learned
amicus has also argued that the police had not recorded the re-statement of
the victim. Amicus has further argued that the offence cannot be placed
under Section 307 of the Indian Penal Code, because, all the injuries are
simple in nature and it is demonstrated so because if the appellant really
wanted to kill the victim then the six assaults would definitely have been
fatal. But, the fact is that in spite of six assaults, all the injuries are of simple
in nature, and hence, conviction of appellant under section 307 of the Indian
Penal Code cannot be sustained.
14. Amicus apart from the grounds on merit also submitted about
mitigating circumstances that apparently there was communal or community
differences between the parties, and the occurrence is of the year 2008 and
at the time of occurrence as well as judgment itself the appellant was an
aged person. At the time of judgment appellant was 65 years old and now he
is about 76 years old and appellant has already undergone custodial period
of 1 year and 11 months and, therefore, he has already been punished. To
buttress her arguments, Mrs. Bakshi Vibha, the learned amicus curiae has
relied upon a judgment passed by this Court in the case of Bhunu Turi &
Ors. Vs. the State of Jharkhand reported in [2017 (4) East Cr C 476 (Jhr)],
and submits that in the light of aforesaid judgment reduction of sentence
may be considered in the given facts of this case.
ARGUMENTS ON BEHALF OF STATE
15. Mr. Tapas Roy, the learned APP, has on the other hand,
submitted that the case against the appellant is fully made out and the
injured witness is a primary witness and the weight of the injured witness
carries more weight than an ordinary witness. Injured conditions of the
informant were seen by other witnesses, such as, PW-3 and PW-6. PW2 and
PW-4 had seen the victim immediately after the assault and, therefore, their
evidence cannot be disregarded and their evidences proves or corroborates
the evidence of PW-3 and PW-6 who had seen the occurrence.
16. Learned APP further referred to the evidence of PW-9, Dr.
Ramjee Bhagat, who had examined the injured informant and pointed out
that there are six incised injuries, which indicates repeated blows and injury
No. 6, which was on the scalp, which corroborates the allegation of assault
being made on the head of the informant. Learned APP has also pointed out
to the evidences of PW2 and PW4 who were the seizure-list witnesses and
the evidence of PW-8, Krishnadeo Prasad, who is the Investigating Officer
of this case and from the evidence of these three witnesses it is apparent that
PW-2 and PW-4 had snatched the sword from the appellant and
subsequently, had given to the police and therefore, if it was not produced in
court, it was the failure on the part of the investigating authorities and not a
fault on the part of the informant.
17. Learned APP has further submitted that on the basis of the
evidence of the injured informant along with the evidence of PW-3 and PW-
6, who were also an eyewitnesses to the occurrence and also from the
evidence of PW-2 and PW-4 who had subsequently seen the injuries on the
body of the informant and also seized the sword from the hands of the
appellant and the evidence of the doctor corroborates the prosecution case.
Learned APP also submitted that the evidence of the Investigating Officer is
also supportive of the other witnesses and Investigation Officer had taken
the statements of witnesses under section 161 of the Code of Criminal
Procedure and also corroborated regarding the production of the sword from
PW-2 and PW-4. Hence, conviction of the appellant under section 307 of
IPC and the sentence is fully made out.
FINDINGS
18. Having heard the learned counsels for the parties, having gone
through the records of the case and evidences, this is a case in which
appellant was convicted under section 307 of the Indian Penal Code.
19. From the fardbayan and the deposition of PW-1 informant
Sheela Banra, I find that when informant was taking bath in nala situated in
her village, in the meantime, the appellant came there and assaulted the
informant with sword on her head, left hand and right hand, with an
intention to kill her and due to assault informant sustained injuries. The
evidence of PW-3 and PW-6, are very relevant in the case in hand as both
are eye-witnesses to the occurrence of assault on the informant. On halla
both PW-3 and PW-6 had rushed to the place of occurrence, where they saw
that appellant was assaulting the informant PW-1 with sword and had seen
the injuries sustained by the informant. Further, informant herself and PW-3
and PW-6 have stated in their deposition that when informant ran to the
house of Manki of their village then accused chased the informant with
sword in order to kill her. PW-2 Yudhisthir Tanti and PW-4 Sajawal Banra
have also in their deposition deposed that they had seen the injuries
sustained by the PW-1 informant. In the evidence of PW-2 and PW-4 it has
also come that they had snatched the sword from the hands of the appellant
and later on handed it over to the police. PW-8, who is the Investigating
Officer of the case has also deposed that PW-2 and PW-4 had handed over
the sword to him and seizure list of the sword was prepared which was
marked as Ext.-5. Further, Investigating Officer has deposed that he had
issued the injury requisition report of the informant PW-1 which was
marked as Ext.-4.
20. PW-9, the doctor, who had examined the injured informant,
opined that informant had received as many as six injuries and all the
injuries were simple in nature and caused by sharp cutting weapon. On
perusal of injury report of the informant, I find that injury no. (vi) which is
incised wound - measuring 3''x1/4" x scalp deep mid vertex transversally, is
on the scalp which is a vital part of the body. Apart from the injury no. (vi)
appellant had inflicted as many as five other injuries on the person of the
informant viz. (i) Incised wound with bleeding - 4"x1/2" x deep to bone
over left palm- advised x-ray of left hand; (ii) Incised wound - 1" x ¼" x
muscle deep dorsou of left hand; (iii) Incised wound - 1 ½"x1/4"x muscle
deep left thenar iminence; (iv) Incised wound - 1 ½" x 1/4"x muscle deep
left forearm; (v) Incised wound - 1"x1/4"x muscle deep over left arm.
Therefore, the ocular evidences of the witnesses regarding
injuries sustained by the PW-1 informant is corroborated by the medical
evidence of the doctor. From the injury report Ext.-6 of the injured
informant and the ocular evidence of injured informant and other witnesses,
I find that informant was brutally assaulted by the appellant with sword with
intention to kill her which is reflected by the six incised injuries sustained
by the informant. Hence, prosecution has proved the charge under section
307 of IPC against the appellant Sita Ram Banra beyond reasonable doubt.
21. Accordingly the impugned judgment of conviction dated
15.02.2010, passed by the learned Sessions Judge, West Singhbhum,
Chaibasa in Sessions Trial No. 03/2009 is sustained and upheld. Regarding
sentence of the appellant, I find that at the time, when the judgment was
pronounced by the learned trial court, appellant was 65 years of age and
now after the passage of about eleven years appellant would be 76 years of
age. Further, custody certificate has been issued by Superintendent, Mandal
Kara, Chaibasa, West Singhbhum vide Memo No. 3683 dated 22.12.2020,
wherein it is indicated that appellant Sita Ram Banra has undergone 01 year
11 months and 1 day in custody and hence, now, at this stage sentence of the
appellant Sita Ram Banra is modified to 3 months S.I. In the result appellant
will serve a modified sentence of 3 months S.I. and the appellant shall
deposit the fine amount as imposed by the learned trial court and in default
of payment of fine amount, default clause as ordered by the learned trail
court shall apply. The bail bonds of the appellant stands cancelled.
22. This Court is thankful to Mrs. Bakshi Vibha, Amicus Curiae for
her assistance rendered to this Court. Member Secretary, JHALSA is
directed to pay remuneration to Mrs. Bakshi Vibha, Amicus Curiae as per
rules.
23. Accordingly, criminal appeal is dismissed with modification in
sentence.
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
nd
Dated: 22 November, 2021
Madhav-NAFR
