Jharkhand High Court
Abhimanyu Baitha Son Of Shri ... vs The State Of Jharkhand on 30 November, 2021
1
Cr. Appeal (SJ) No. 834 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 834 of 2003
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(Against the judgment of conviction dated 16.6.2003 and order of
sentence dated 17.06.2003 passed by the learned Additional
Sessions Judge, Fast Track Court-III, Garhwa in S.T. Case No. 338
of 1994.)
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1.Abhimanyu Baitha son of Shri Jagdish Baitha
2.Vijay Baitha son of Shri Sahdeo Baitha
3.Parmeshwar Mali son of Shri Baijnath Mali
4.Subodh Kumar Baitha @ Subodh Baitha son of Shri Jagdish Baitha
5.Keso Mali son of Shri Baijnath Mali
6.Tetri Devi wife of Shri Jagdish Baitha ... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'B LE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. J.S. Tripathy, Advocate
For Respondents : Mr. Suraj Verma, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 20 : Dated 30th November, 2021
1. This appeal is directed against the judgment of conviction
dated 16.06.2003 and order of sentence dated 17.06.2003 passed by the
Additional Sessions Judge, Fast Track Court- III, Garhwa by which
the appellants Vijay Baitha, Parmeshwar Mali and Keso Mali (died
during the pendency of this appeal) have been sentenced to undergo
R.I. for one year under section 148 of IPC only and further the
appellant no. 5 Tetri Devi (died during the pendency of this appeal)
was convicted to sentenced to undergo R.I. for 3 years u/s 325/149
IPC. The appellant no. 1 Abhimanyu Baitha and appellant no. 4
Subodh Kumar Baitha have been convicted and sentenced to undergo
R.I. for five years u/s 325/149 IPC.
2. The prosecution case arose in the wake of fardbeyan of Chuttur
Baitha whose statement was recorded on 17.08.1993. The said
informant alleged that on 16.08.1993 at about 5.00 p.m., his nephews
Abhimanyu Baitha and Subodh Kumar Baitha came to his house and
Cr. Appeal (SJ) No. 834 of 2003
questioned him as to why he had tied the she buffalo at their place.
Out of fear, he immediately removed the she-buffalo and tied her
inside his house. Thereafter, they threatened him that today in the
evening when his son Nandu Baitha would return from Itwa
(Haidernagar) after teaching he would be beaten near the river. At the
time of return of his son Nandu, the informant went east of his
village to Koel river but his son did not turn up. Thereafter, he came
to know that his son would not return back today, then he proceeded
to return back then he saw that Subodh Kumar Baitha, Abhimanyu
Baitha, Tetri Devi, Vijay Baitha, Keso Mali and Parmeshwar Mali all
variously armed with different weapons were sitting on the bank of
the river and surrounded him and thereafter assaulted by lathi and
danda. Subodh Kumar Baitha hit him on his left leg under the knee
while Abhimanyu Baitha hit him near his right eye. Vijay Baitha hit
him on his waist and when he fell down due to the said assault,
Subodh Kumar Baitha tried to throttle him due to which he was
having pain around his neck, thereafter having heard halla, Bali Ram
Pandey, Triveni Pandey and Parmeshwar Upadhyay of village
Bhandaria, Mandari and Checharia respectively who were coming
from that way saved him from further assault. Thereafter, his co-
villagers arrived who first took him to his house. Later, he came to
Garhwa Sadar Hospital for treatment and thereafter his statement was
recorded by the police.
3. On the basis of the aforesaid fardbeyan of the informant Chuttur
Baitha, a formal FIR was drawn, the investigation of the case
commenced, after completion of the investigation, the charge sheet
was submitted and the case was committed to the Court of Session
for trial. Learned trial court framed the charges for the offences
punishable under sections 307,323/34,147,148,149 of IPC and after
concluding the trial the impugned judgment of conviction and order
of sentence was passed which is under challenge.
4. It appears from the record that during the pendency of this
appeal, appellant no. 5 Keso Mali and appellant no. 6 Tetri Devi had
Cr. Appeal (SJ) No. 834 of 2003
died as per the report received from the Superintendent of Police,
Garhwa and none of the close relatives of the said appellant nos. 5 &
6 have come forward to make an application to take leave of this
Court to continue this appeal and accordingly, learned counsel for
the appellants submitted that let this appeal be abated with respect to
the dead appellants namely appellant no.5 Keso Mali and appellant
no. 6 Tetri Devi and the learned defence counsel appearing on their
behalf did not raise objection. Hence, their name were deleted from
the Cause Title Of Memo Of Appeal.
5. Heard Mr. J.S. Tripathy, learned counsel for the appellants and
Mr. Suraj Verma, learned A.P.P. for the State.
Arguments on behalf of the appellants:-
6. Learned counsel for the appellants assailing the impugned
judgment of conviction dated 16.06.2003 and order of sentence dated
17.06.2003 contended that there is no legal evidence in this case to
support the case of the prosecution and the entire case of the
prosecution hinges on the so called statement of the interested
witnesses. The parties belong to the same family and the differences
and animosity between the parties are admitted. It has further been
pointed out that the dispute arose due to trivial matter which is
ought to have been resolved by the local panchayat, but, the learned
trial court has acted in haste in convicting and sentencing the
appellant as the appellants are not criminals. It has been pointed out
that P.W. 5 Ruby Kumari is not named in the FIR and thus her
statement cannot be accepted and the learned trial court himself have
had a doubt about the case of the prosecution and observed in para
15 of the judgment that the doctor has found only three injures
whereas the description of the six injuries were there and the injuries
found on the persons of the informant could have sustained by fall
also. It has been observed by the learned trial court that there was no
specific overt act attributed against any of the appellants.
Cr. Appeal (SJ) No. 834 of 2003
7. Further, it is argued on behalf the appellants that the learned
trial court did not exercise the provision of Probation of Offenders
Act and section 360 Cr.P.C. in awarding the sentence as the
appellants have no criminal antecedents. Further, it has been
contended on behalf of the appellants that the actual I.O. of this case
has not been examined or produced in this case which is fatal for the
prosecution in absence of any direct or circumstantial evidence
against the appellants. It has further been pointed out that actually
the informant party wanted to grab a portion of land of the
appellants which are in their exclusive possession and in order to
pressurized them this false case has been instituted and the learned
trial court did not appreciate these facts and without appreciating the
evidences, the impugned judgment of conviction and order of
sentence have been passed which is fit to be set aside.
Arguments on behalf of the State:-
8. On the other hand, learned A.P.P. has pointed out that there is
no illegality in the impugned judgment of conviction and order of
sentence and the learned trial court has rightly appreciated the
evidences adduced on behalf of the prosecution, inter-alia, P.W. 4
Parmeshwar Upadhyay, P.W. 5 Ruby Kumari and P.W. 6 Chuttur
Baitha (informant and victim) who are the eye witnesses. P.W. 11 Dr.
Ranjan Kumar Pandey has also been examined and he has proved the
injury report and, therefore, there is no valid reason to interfere in the
impugned judgment of conviction and order of sentence.
FINDINGS
9. Having heard the learned counsel for the parties and perused
the record of the case including the Lower court records.
10. Exhibit 1 is the Fardbyan which has been proved by P.W.1
Ganesh Prasad, who is the formal witness. P.W.2 is another Formal
Witness who has identified the handwriting and signature of
Mukund Singh, Officer-in-Charge, Majhion P.S. station on the formal
FIR which has been marked as Exhibit 2. PW 3 Lalita Devi is said to
Cr. Appeal (SJ) No. 834 of 2003
be a hearsay witness, but, she categorically stated in her examination
in chief that when she went to the place of occurrence after hearing
from the villagers she found that her father-in-law P.W. 6 was injured
and she found injuries on her body and he was taken to the hospital.
Thus, this witness P.W. 3 Lalita Devi has categorically supported the
case of the prosecution to the extent that the P.W. 6 was found
injured at the place of occurrence and the learned trial court has
rightly appreciated the evidences deposed by this witness P.W.3 who
had also stated that her father-in-law P.W. 6 had fallen after being
assaulted on the land which was in dispute, therefore, the assault by
the appellants upon the P.W.6 is corroborated by the version of this
witness. Further, it is found that the learned trial court have rightly
appreciated the evidences of P.W. 4 Parmeshwar Upadhayaya who is
an independent witness belonging to different village and had
supported the occurrence to the extent that the informant had
received certain injuries and thus, the version of this witness is also
falling in line with the allegations as set out in the FIR. The learned
trial court has also rightly appreciated the fact that P.W. 4 is an
independent witness and he did not name any one of the appellants
stood explained by the fact that all the accused persons were young
and one of them was a lady. The witnesses who has been declared
hostile by the prosecution are P.W. 7 Ramkaresh Sah, P.W.8 Rupdeo
Sah, P.W.9 Baliram Pandey and P.W. 10 Triveni Pandey who did not
damage the case of the prosecution in view of the evidences of P.W. 3
& P.W. 4 which is corroborated with the informant victim P.W. 6
and the eyewitness P.W. 5 Rubi Kumari.
11. P.W. 6 Chattur Baitha is the informant supporting the case of
the prosecution stated that the appellant no. 6 (since deceased)
instigated all the accused persons who were variously armed with
lathi and danda to assault him, upon which the appellant no. 1
Abhimanyu Baitha assaulted him near the right eye by danda and the
appellant no. 4 Subodh Kumar Baitha assaulted him on the right leg
Cr. Appeal (SJ) No. 834 of 2003
below the knee and thereby this witness P.W. 6 fell down and when
he fell down Subodh Kumar Baitha assaulted him by putting his knee
on his chest and tried to throttle him. P.W. 5 Ruby Kumari intervened
to save him. It has further been stated that teachers who were passing
through the passage asked the accused appellants not to assault him
and protected him. Then, his natini and daughter-in-law took him to
the house and thereafter he went to the Government Hospital
Garhwa for treatment and thereafter on the next day his fardbeyan
was recorded by the police which has been marked as Ext.3. The
doctor had treated him and the X-ray was also conducted of the right
ribs bones and right legs which were found fractured and the same
was plastered in the hospital. This witness has stated that all the
accused persons were closely related to him. In the cross examination
he has stated that the accused persons assaulted him one by one and
he has received three lathi injuries on his body, though he fell down
but still in self-conscious position, but, he could not say as to what
period the accused sat on his chest.
12. P.W. 11 Dr. Ranjan Kumar Pandey, the doctor who had
examined this witness P.W. 6 Chuttur Baitha had found the following
injuries:
a. Lacerated wound ½" x 1/4"x 1/4" on right cheek
prominence with defuse and tender swelling around it.
b. Lacerated wound 3"x1/2"x bone deep on middle of the front
of left leg.
c. Diffuse and tender swelling of upper part of left buttock.
d. Pain and tenderness the lower part of right side of front of
chest.
e. Complain of pain in upper outer part of left arm.
f. Contusion 4"x1" on upper part of middle of back. Weapon
used by hard and blunt substance and it may be caused by
Lathi and Danda and the age of injury was assessed between
12 to 24 hours. With regard to nature opinion was reserved
with regard to injury no. 2 & 4 whereas all the injuries were
Cr. Appeal (SJ) No. 834 of 2003
found to be simple. This injury report was marked as
Exhibit 4. Supplementary injury report after receiving all the
X-ray plates has been marked as "Exhibit 4/A" mentions
that the opinion of injury nos. 2 & 4 which had been kept
reserved are grievous in nature as x-ray chest A-P view
shows fracture of right 4th and 5th ribs at posterior ends and
x-ray of leg shows lineal vertical crack of the left fibula.
13. From the aforesaid version of P.W. 6 Chuttur Baitha read with
the version of the Doctor and the injuries reports as Ext. 4 & 4/A, it is
established that the prosecution had fully proved its case inasmuch
as this witness P.W. 6 is the informant victim and his injuries has
been fully supported by the doctor P.W.11 as discussed above.
Further no inconsistency has been found in his own statement as
given in the fardbeyan. Further, the same version of assaults by the
appellants upon the P.W.6 has been corroborated by the P.W. 5 Ruby
Kumari who is another eye witness to the occurrence. As a matter of
fact the P.W. 5, Ruby Kumari, who is the granddaughter of the
informant and her name did not appear in the FIR and only on this
ground her deposition cannot be brushed aside. It is well settled that
the FIR is not encyclopedia of the entire occurrence as has been
rightly appreciated by the learned Trial Court. Further, her
testimonies stood the test of cross-examination and she candidly
deposed about the occurrence and P.W.6 had stated that P.W.5- Rubi
Kumari was present at the place of occurrence and persuading the
accused persons in order to protect her grandfather (victim-
informant). P.W. 5- Ruby Kumari has further stated categorically that
when she was coming back after study she had seen that all the
appellant persons armed with lathi and danda had been assaulting
and the Subodh Kumar Baitha and Abhimanyu Baitha had assaulted
her grandfather P.W. 6 by which her grandfather was inflicted with
injuries and on hulla the teachers Baliram Pandey, Triveni Pandey
and Parmeshwar Upadhyay had come and saved him and thus the
version of the P.W. 5- Ruby Kumari falling in line of P.W. 6. In the
Cr. Appeal (SJ) No. 834 of 2003
cross examination nothing could be taken out in order to contradict
the version of the prosecution.
14. Recapitulating the elaborate discussions of evidences in the
forgoing paragraphs, it is well founded that the informant P.W. 6
whose deposition has fully corroborated the case of the prosecution
and the contentions raised on behalf of the appellants by the learned
defense counsel that since the name of the P.W.5 Ruby Kumari has
not appeared in the fardbeyan so her statement could not be said to
have corroborated the case of the prosecution, does not hold good
and is not tenable in the eyes of law. It is well settled that the
fardbeyan is just an earliest and generally the most truthful version of
the occurrence and has rightly appreciated by the learned trial court.
The learned trial court has rightly appreciated her version and found
she stood to the test of the cross examination and thus P.W.5 Ruby
Kumari was the competent eye witness. It has also been rightly
explained by the learned trial court that the doctor has found as
many as six injuries on the person of the injured informant P.W. 6
because in such types of incessant assaults, the pains and injuries
described by P.W. 6 can be regarded as coherent and cohesive and
there cannot be any inconsistency in the injuries as stated by the
injured P.W. 6 and thus, the injury report prepared by the doctor
P.W. 11, who had medically examined the P.W. 6 victim, does not
contain flaws to disbelieve the version of the doctor P.W.11. Further,
it is found that the learned trial court has rightly appreciated the
actual assault upon the informant by all the appellants in absence of
specific role of some of the appellants. But, it is well founded from
the testimonies of the witnesses, the accused-appellants, namely,
Vijay Baitha, Parmeshwar Mali and Kesho Mali (now deceased) were
the members of the unlawful assembly constituted for the purpose of
rioting and they had armed with the lathi/weapons for committing
the offence and thus they have been rightly held for the offence
punishable u/s 148 of IPC and the rest of the appellants namely
Abhimanyu Baitha and Subodh Kumar Baitha and Tetri Devi (Since
Cr. Appeal (SJ) No. 834 of 2003
deceased) have been held guilty for the offences punishable u/s 325
r/w 149 IPC.
15. In the light of the aforesaid discussion, this Court upholds the
appellants no.2 & 3 Vijay Baitha and Parmeshwar Mali (since the
appellant no.5 Keso Mali died during the pending of this appeal and
this appeal has abated with respect to the said Appellant no.5) guilty
for the offence punishable u/s 148 IPC and the appellant nos.1 and 4
Abhimanyu Baitha and Subodh Kumar Baitha (since the appellant
no.6 Tetri Devi died during the pending of this appeal and this
appeal has abated with respect to appellant no.6 also) guilty for the
offence punishable u/s 325/149 of IPC.
16. On the point of the sentence considering the submissions of the
parties, it is found that it is an admitted case of the prosecution that
both the parties are close relatives to each other and there is a dispute
of the landed properties. There is nothing on record to show about
their criminal antecedents. The occurrence is said to have taken place
as far as back on 16.08.1993 and thus, the appellants have been
suffering from trauma and agony of criminal prosecution for more
than 25 years and therefore, no useful purpose would be served to
send them jail again. and, therefore, it is just and fair to award
sentence of fine by way of compensation to be paid to the victim
P.W.6 Chuttur Baitha instead of imposing sentence of imprisonment
and thus the appellants no. 1 Abhimanyu Baitha, appellant no.2 Vijay
Baitha ,appellant no.3 Parmeshwar Mali and appellant no.4 Subodh
Kumar Baitha @Subhodh Baitha are imposed with the sentence of
fine of Rs 5000.00 collectively to be paid to the victim-informant
Chuttur Baitha (P.W.6) by way of compensation under their
respective counts convicted for the offences punishable under
sections 148 and 325/149 of the IPC in a composite manner and in
case of default of payment of fine, all the said appellants shall go
imprisonment for a period of six months.
Cr. Appeal (SJ) No. 834 of 2003
17. Since all the appellants are on bail, they are directed to make
the said payment of fine as imposed by way of compensation to be
paid to the victim-informant Chuttur Baitha (P.W.6) within three
months from the date of this judgment, failing which sentence of
imprisonment as imposed in case of default of fine will come into
operation and the concerned trial court shall do needful in this
regard.
18. In the result, this appeal is dismissed with a modification in
order of sentence as stated above.
19. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgement. The
concerned court below is directed to ensure that the appellants
awarded with sentence of fine by way of compensation, if paid, shall
be given to the victim-informant Chuttur Baitha (P.W.6) and in case
of default of payment of fine by of compensation, the concerned trial
court shall ensure that the appellants serve the sentence as awarded
in default of payment of fine.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 30.11.2021/NAFR
MM/-
