Basant Das vs The State Of Jharkhand
2021 Latest Caselaw 4434 Jhar

                                         1        Cr. Appeal (SJ) No.1460 of 2003

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (SJ) No.1460 of 2003

       (Against the Judgment of Conviction and order of sentence dated 11.08.2003,
       passed by learned Additional District & Sessions Judge, V, Bokaro, in
       Sessions Trial No.257 of 1991)

               Basant Das                              ...      Appellant
                                        Versus
               The State of Jharkhand                  ...      Respondent
                              ---

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

---

           For the Appellant      : Mr. R.C.P. Sah, Advocate
           For the State          : Mrs. Priya Shrestha, A.P.P.

9/26.11.2021         This appeal is preferred against the Judgment of Conviction

and order of sentence dated 11.08.2003, passed by learned Additional District & Sessions Judge, V, Bokaro, in Sessions Trial No.257 of 1991, whereby and where under the appellant was convicted for the offences punishable under Sections 323 & 325 of the Penal Code and sentenced to undergo R.I. for two years under Section 325 IPC and no separate sentence was awarded for the offence under Section 323 of IPC.

2. The allegations in brief against the appellant arose in the wake of the fardbeyan dated 5.3.1988 (Ext-4) of PW - 2 Kamal Ravi Das who stated at about 10 hours at B.G.H. casualty ward that on 04.03.88 at about 3.30 pm, accused Suresh Das and one Sunil Das were quarrelling and his brother PW - 3 Batul Das standing there intervened as to why were they quarrelling amongst themselves and made them apart and Batul Das took the deceased accused- appellant Suresh Das to his house and while he was returning back to his house after leaving Suresh Das at his house, suddenly the deceased accused-appellant Suresh Das armed with tangi, Basant Das armed with lathi and one Seema Devi (Since dead) came and started assaulting Batul Das (PW-3). It has further been alleged that accused-appellant Suresh Das (since deceased) by means of tangi and accused Basant Das by means of lathi assaulted his brother Batul Das on his head causing serious injuries and as a result of which Batul Das fell down and become unconscious. It has further been alleged that injured brother Batul Das (PW - 3) 2 Cr. Appeal (SJ) No.1460 of 2003

was shifted to B.G.H with the help of village people where he was treated.

3. Heard learned counsel for the parties, perused the record of the case.

4. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the Judgment of conviction and order of sentence passed by the court below is bad in law and is contrary to facts and circumstances of the records and contrary to settled principal of law. It is contended that the learned trial court failed to appreciate the vital contradiction in the deposition of prosecution witnesses.

5. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly convicted and sentenced the sole accused-appellant under Section 325 of IPC and hence there is no merit in this appeal and it is fit to be dismissed.

6. Having heard the parties perused the record of the case including the lower court records. It is manifest that the accused- appellant no. 1 has expired and to that effect an affidavit has been filed on behalf of the State Of Jharkhand stating therein that the accused-appellant no.1 Suresh Das has died on 21.3.2004 and photo copy of the duly executed Death Certificate has been enclosed along with the affidavit. In view of this fact the learned defence counsel appearing on behalf of the appellants pointed out that let this appeal be abated with respect to the deceased appellant no.1 Suresh Das and the learned counsel for the appellants did not raise objection, hence this appeal gets abated with respect to the appellant no. 1 Suresh Das in the light of the fact that the appellant no. 1 has expired as far back as on 21.3.2004 and several 30 days have elapsed but no close relative on behalf of the deceased appellant has made an application to continue with this appeal and accordingly as per the submissions advanced on behalf of the appellants this appeal gets abated with respect to appellant no.1, consequently the name of appellant no. 1 has been deleted from the Cause Title.

3 Cr. Appeal (SJ) No.1460 of 2003

7. It is found from the fardbeyan that the surviving appellant Basant Das is the brother of the deceased appellant No.1 Suresh Das and the entire dispute arose due to intervention of the victim Batul Das, when the deceased appellant Suresh Das was quarrelling with one Sunil Das and thereafter the deceased appellant Suresh Das got anguished and assaulted the victim Batul Das along with this surviving appellant Basant Das. It is admitted case of the prosecution that it was the deceased appellant Suresh Das, who had assaulted by the back portion of tangi upon Batul Das and the surviving appellant Basant Das had assaulted by danda upon the victim. The learned trial court had framed charge against this surviving accused-appellant Basant Das along with the deceased accused-appellant Suresh Das for the offences punishable under sections 325 and 307/34 of IPC and further framed charge under section 323 of the penal code against one Seema Devi who died during the course of the trial and hence the trial was dropped against her. After the trial, the learned court below held guilty both the deceased appellant and surviving appellant for the offences punishable under sections 323 and 325 of the IPC and impugned judgement of conviction and order of sentence was passed.

8. PW-1 Sabur Das examined on behalf of the prosecution has been declared hostile and nothing has been brought on the record on behalf of the prosecution to support the charges levelled against accused appellant.

9. PW - 2 Kamal Ravidas, who is the informant in this case and full brother of victim Batul Das (P.W.3), who had stated in examination-in-chief that Basant Das had pelted stone upon the victim, whereas in the fardbeyan, it has been alleged that the Basant Das had assaulted by danda which is a major contradiction with respect to the means of alleged assault by the appellant Basant Das. Further, this witness PW - 2 is not the eye witness of the occurrence, as he had not seen that the appellant Basant Das had assaulted the victim PW-3 Batul Das, as evident from the paragraph-6 of the cross examination of this witness PW - 2, where he had stated that he does not see anybody assaulting the victim 4 Cr. Appeal (SJ) No.1460 of 2003

inside the house and therefore the charges levelled against this appellant is not substantiated by this PW-2 also.

10. PW-3 Batul Das (victim) examined on behalf of the prosecution is said to be the victim of the case who had sustained injuries by the alleged assault. It is found as per the fardbeyan that only three persons named as accused but in his deposition in paragraph-5 one more person has been added who had been assaulting upon him and there were four accused persons as he disclosed in his statement namely, the deceased appellant Suresh Das, present appellant Basant Das, Seema Devi and one Futu Das and thus this witness has improved his statement which is a major contradictions and not appearing trustworthy. Further this witness had also not corroborated the version which was stated, in the fardbeyan, that this appellant Basant Das had assaulted by lathi, rather he has stated in para-11 of his deposition that apart from the injury by the back portion of the tangi, he was inflicted injury by pelting of stone and bricks and therefore the specific charges levelled against the accused Appellant Basant Das that he had assaulted P.W.3 by lathi is not proved inasmuch as in the FIR it is alleged that the injured P.W.3 was assaulted by this appellant by lathi whereas before court P.W.3 candidly stated he was assaulted by lathi, tangi and stones as a sweeping statement which cannot be relied upon. Even P.W.2 clearly stated that the accused appellant had thrown stones upon the injured P.W.3 who is the full brother of P.W.2.

11. PW-4 Dr. Sachidanand Sharma, who had examined the injured PW-3 Batul Das had found the following injuries on his person:

"(i) 2 -1/4 inch long stitched wound on the right frontal parietal region and (ii) depressed fracture on the right parietal bone. He has also deposed that the injury No.1 was found simple in nature while the injury No.2 was grievous caused by hard blunt object."

And the aforesaid injuries as found by this doctor witness P.W.4 corroborated the case of the prosecution to the extent that the victim P.W.3 had sustained the injuries caused by hard and blunt 5 Cr. Appeal (SJ) No.1460 of 2003

substance and since P.W.2 (informant) candidly stated that the bother of deceased appellant no.1 i.e. the surviving appellant Basant Das had thrown stones upon the injured P.W.3 whereas P.W.3 (the injured witness) sweepingly stated in his deposition that he along with other person, namely, Seema Devi assaulted by lathi, thus this surviving accused-appellant Basant Das deserves to get benefit of doubt due to such major infirmities on the point of means of assault by the appellant upon the injured. Hence, the charges levelled against this surviving appellant Basant Das is not proved inasmuch as there are major inconsistencies in the testimonies of important witnesses examined on behalf of the prosecution i.e. P.W. 2 & P.W. 3 who are full brothers as P.W.2 explicitly stated that the appellant Basant Das had pelted stones whereas the victim P.W.3 Batul Das did not state specifically about the assault by this appellant Basant Das rather said he was assaulted by tangi, by the deceased appellant Suresh Das and by Lathi by two persons, namely, this surviving appellant and by one Seema Devi. Therefore the charges levelled against the surviving appellant Basant Das has not been substantiated on the point of assault by this surviving appellant Basant Das as the testimonies of P.W.2 or P.W.3 read with Doctor-PW - 4 are vague and cryptic and not reliable in this regard.

12. PW - 5 Amula Ratan Gorain is the advocate's clerk and he has formerly identified the hand writing and signature of the S.I. of the concerned police station Chas, where the formal FIR was instituted and the same has been marked as Ext. - 3. Since the I.O. in this case has not been examined and the case was tried for the offence punishable under Section 307 of IPC inter alia along with Sections 325, 323 /34 of IPC and therefore the trial is wholly vitiated for want of the examination of the I.O., by which the accused appellant could not get the opportunity to draw the attention of the Court about the contradictions and also the manner of occurrence, place, date and time has not been proved. Further the case of the prosecution is also weakened because, no independent witness has been examined, although, it is stated by 6 Cr. Appeal (SJ) No.1460 of 2003

the victim PW - 3 that several persons were present at the place of occurrence, as stated in para - 13 as Ghingu Das, Hari Das, Subar Das, Narku Das and Sunil Das, although Subar Das has been examined, but he has been declared hostile and therefore the case of the prosecution has also not been substantiated and corroborated by any of the impartial witnesses, although, it is stated that several witnesses were present at the place of occurrence and in this way, the non-examination of the I.O. has caused serious prejudice to the accused. In the present case, where there are conflicting depositions on the point of assault by the surviving appellant Basant Das on P.W.3 as the testimonies of P.W.2, P.W.3 and P.W4 are not in conformity with case made out in the FIR and also with medical evidence as discussed above, the non examination of the Investigating Officer is fatal for the prosecution as the surviving accused appellant was deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police and as such, the appellant had suffered serious prejudice in the present case when the witnesses P.W.2 and P.W.3 are highly interested witnesses as both are full brothers and there are no other witnesses. Further, the formal FIR, which has been identified and marked as Ext. - 3 and 4 is also not a legal evidence to be taken into account in view of the fact that it has been identified and marked by advocate's clerk P.W.5, who in the cross- examination, candidly stated that he had never have an opportunity to work with the officer-in-charge P.K. Biswas. P.W. 5 stated that he never identified any hand-writing and nor the signature was signed before him and therefore it is meaningless to record his deposition. This court is unable to understand that as to why the prosecution did not choose to examine any police personnel. It may be true that in spite of several steps taken, the prosecution could not procure the attendance of I.O. who investigated the case and submitted the Charge- Sheet. Thus the correctness of the statement of the witnesses examined during the course of the investigation and subsequently in the trial, 7 Cr. Appeal (SJ) No.1460 of 2003

particularly P.W.2 & P.W.3, upon which the learned trial court has relied upon, had not been tested by cross-examining the Investigating Officer and since the learned Trial Court has convicted the appellant Basant Das relying upon the statements of P.W.2 & P.W.4, the impugned judgment of conviction has occasioned great miscarriage of Justice for the sole surviving Accused-appellant Basant Das.

13. In view of the aforesaid discussions and evidences available on record, it is well founded that the charges levelled against this surviving appellant Basant Das is not proved at all and accordingly it is found that the learned trial court had not appreciated the legal evidences available on record in the right perspective and as such the judgment of conviction and order of sentence dated 11.08.2003, passed by learned Additional District & Sessions Judge, V, Bokaro, in Sessions Trial No.257 of 1991 passed against the surviving appellant Basant Das is bad in law. In the result, the impugned judgment of conviction and order of sentence passed against the surviving appellant Basant Das is set-aside and this appeal is allowed.

14. The appellant Basant Das is on bail and he is discharged from liability of bail bond.

15. Accordingly this appeal is allowed.

16. Let the Lower Court Record be sent back forthwith to the concerned court below.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 26.11.2021/NAFR R.Kumar/-