Jharkhand High Court
Ramani Sarkar vs The State Of Jharkhand on 10 October, 2022
1 Cr. Appeal (SJ) No. 1606 of 2006
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1606 of 2006
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(Against the judgment of conviction dated 21.11.2006 and order of
sentence dated 22.11.2006 passed by the learned 1st Additional
Sessions Judge, Rajmahal in Sessions Case No. 39 of 2002
corresponding Sessions Trial No. 223 of 2002 arising out of
Rajmahal P.S. Case No. 164 of 2000, Rajmahal in the district of
Sahibganj, Jharkhand.)
Ramani Sarkar ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Deen Dayal Saha, Advocate
For the Respondent : Mr. Shailesh Kr. Sinha, Addl. P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
Judgment: Dated: 10th October, 2022
1. This appeal is directed against the judgment of conviction dat-
ed 21.11.2006 and order of sentence dated 22.11.2006 passed by the
learned 1st Additional Sessions Judge, Rajmahal in Sessions Case
No. 39 of 2002 corresponding Sessions Trial No. 223 of 2002 arising
out of Rajmahal P.S. Case No. 164 of 2000, Rajmahal in the district of
Sahibganj, Jharkhand whereby and whereunder the appellant has
been convicted for the offence punishable u/s 148, 323/149, 326/149
and 307/149 of IPC and further the learned trial court directed the
appellant to undergo RI for two years u/s 148 IPC and RI for 6
months u/s 323/149 and RI for 6 years u/s 326/149 of IPC with a
fine of Rs. 2000/- (Rupees two thousand) and RI for 6 years u/s
307/149 of IPC with a fine of Rs. 2000/- (Rupees two thousand). In
default of payment of fine he was further directed to undergo RI for
three months. All the sentences were directed to run concurrently.
2 Cr. Appeal (SJ) No. 1606 of 2006
2. Briefly stating the prosecution case as unfolded in the fard-
beyan of P.W. 3 Kalpana Devi(mother of injured Ajit Barai) recorded
by ASI Nandan Chaudhary of Rajmahal P.S. on 24.09.2000 at 17.30
hours at referral hospital Rajmahal is as under:
It has been alleged by the informant that on 24.9.2000 at about
3.30 P.M. her son Ajit came from the haat (village market) after sell-
ing rice. In the meantime he saw the accused Mantu Pd. Saha asked
him as to why did he get his name struck out from list of distribu-
tion of wheat for relief. Thereupon an altercation took place between
them. Then the accused Ramani Sarkar came there and took away
Mantu Pd. Saha to haat. After some time all the accused persons
(Mantu Prasad Saha, Ramani Sarkar, Vishwjeet Sarkar, Sanju Sarkar,
Kalachand, Bilkhan Mandal, Bijay Sarkar, and Sunil Basu) came to
the house of informant armed with farsa, lathi, hasua and gupti and
abused Ajit Barai. The accused Ramani Sarkar ordered to assault
and Ramani Sarkar assaulted Ajit by farsa on his head. As a result,
Ajit fell down and the other accused persons assaulted him with la-
thi and hasua. The injured sustained injuries on the various parts of
his body. Ajit was brought to Rajmahal hospital for treatment.
The police after recording the fardbeyan of the informant reg-
istered a case under sections 147, 148, 149, 323, 324, 504 and 307
I.P.C. against the eight accused persons and after investigation sub-
mitted charge sheet against all accused persons under sections 147,
148, 149, 323, 324, 326, 307 and 504 of I.P.C. The learned A.C.J.M.,
Rajmahal took cognizance of the offence accordingly and after com-
plying with the provisions u/s 207 Cr.P.C. committed the case to the
court of Sessions. Learned IInd Addl. Sessions Judge, Rajmahal had
framed charge under sections 148, 323/149, 325/149, 326/149,
307/149 of IPC on 20th June 2003.
3 Cr. Appeal (SJ) No. 1606 of 2006
Learned trail court after conducting the full-fledged trail
passed the impugned judgment of conviction and order of sentence
which is under challenge in this appeal.
3. Heard Mr. Deen Dayaal Saha, learned counsel for the appel-
lant and Mr. Shailesh Kr. Sinha, leanred Addl. P.P. for the State.
Arguments advanced on behalf of the appellant
4. Learned counsel appearing for the appellant submitted that
the impugned judgment of conviction and order of sentence passed
by the learned trial court is bad in law as well as on facts of this case
and further submitted that IO in this case has not been examined
and it caused serious prejudice to the defence of the appellant. Fur-
ther it has been pointed out that medical evidence on record does
not support the prosecution case and it has also been contended on
behalf of the appellant that three independent witnesses P.W.1, P.W.
4 and P.W. 5 have been declared hostile. It has further been con-
tended on behalf of the appellant that the injured P.W. 7- Ajit Barai
was an accused in a case of the murder and the enmity between the
parties were admitted by the prosecution and in absence of any glar-
ing evidence the learned trial court has failed to appreciate the false
implication of this appellant in the commission of the offence and,
therefore, the impugned judgment of conviction and order of the
sentence is bad in law and fit to the set aside.
Arguments advanced on behalf of the State
5. On the other hand learned Addl. P.P. appearing for the State
opposed the contentions raised on behalf of the appellant and sub-
mitted that although no specific role has been stated either by P.W. 3
the informant or the injured P.W. 7 but the learned trial court has
rightly convicted the appellant and passed the impugned judgment
of the conviction and order of sentence with the aid of section 149 of
4 Cr. Appeal (SJ) No. 1606 of 2006
IPC. Further, it has also been pointed out that the doctor P.W. 6 has
been examined and he has proved the injury report Ext. 1 by which
it appears that the one of the injuries i.e. injury no. ii was grievous in
nature and therefore there is no legal point to interfere in the im-
pugned judgment of conviction and order of sentence and this ap-
peal is fit to be dismissed being devoid of merit.
Appraisal & Findings
6. Having heard the learned counsel for the parties, perused the
record of the case including the Lower Court Records.
7. It is admitted case of the prosecution that both the parties (the
informant and the appellant) are neighbours and the enmities are
admitted. It has also come into the evidence that the injured P.W. 7
Ajit Barai was an accused and he had been in jail in a case of mur-
der, with this background of the case this Court proceeds to ap-
praise the evidences adduced on behalf of the prosecution very cau-
tiously, carefully and prudently.
8. In order to substantiate the case, the prosecution has been able
to examine altogether seven witnesses, which are as under:
PW-1, Suren Berman, PW- 2 [email protected] Mona Devi, PW - 3 Kal-
pana devi @ Kalpana Barai (informant and mother of injured), PW -
4 Dhiren Biswas, PW - 5 Tarak Barman @ Tares Barman, PW - 6 Dr.
Niranjan Kumar Jha, PW - 7 Ajit Barai (injured).
Besides the above oral evidence the prosecution has adduced
some documentary evidence also which are- Ext. 1 injury report of
injured Ajit Barai, Ext. 1/A Supplementary injury report of injured
Ajit Barai.
On the other hand a few documentary evidence had also been
adduced on behalf of defence which were- Ext. A- certified copy of
chargesheet no. 25 dated 10.03.2003, Ext. A/1- certified copy of
charge sheet no. 61 dated 17.06.2003, Ext. B- certified copy of charge
5 Cr. Appeal (SJ) No. 1606 of 2006
sheet No.119/99 dated 29/07/1999, Ext. C- certified copy of F.I.R. of
Rajmahal P.S. Case No. 150 dated 19.11.2002, Ext. D- certified copy
of F.I.R. of Rajmahal P.S. Case No. 132 dated 07.07.1999.
9. P.W. 1 - Suren Berman stated in his examination in chief that
there had been an altercation between the appellant and Ajit Barai,
but he flatly denied the case of the prosecution that there had been a
marpit (assault) between them. This witness categorically stated that
he was not examined by the police during the course of the investi-
gation and thereafter this witness has been declared hostile and the
prosecution was allowed to cross examine the witness. It is manifest
from the deposition of this witness that when he started speaking
truth about the role of the appellant in the commission of the of-
fence, the learned trial court has allowed the prosecution to get him
declared hostile and allowed the prosecution to cross examine this
witness P.W1. This witness categorically stated that he had not seen
the appellant Ramani Sarkar assaulting the injured P.W. 7 and his
version has been fully supported and corroborated by the versions
of P.W. 7 also. P.W. 7 in his examination in chief pointedly stated
that it was the Vishwajit Sarkar and Sanju Sarkar who had assaulted
him by Farsa and Hasua and there was not even a whisper at all
about the assault by any kind of means by this appellant upon
P.W.7. Therefore, the offence u/s 307, 148 and 326 of IPC has not
been corroborated and only it has been supported that he was pre-
sent at the place of occurrence when the altercation was taken place
between the appellant and the injured P.W. 7 and, therefore, the of-
fence only u/s 323 / 149 of IPC is substantiated against the appel-
lant. It has further been corroborated by the doctor P.W. 6 Dr. Niran-
jan Kumar Jha who had examined the injured and found that out of
5 injuries only one injury i.e. injury no. ii was grievous in nature and
rest of the injuries were simple in nature. And there is a specific ver-
sion of the injured P.W. 7 that there was no assault by the appellant
6 Cr. Appeal (SJ) No. 1606 of 2006
and hence, even if one of the injuries was grievous in nature, the
role of the appellant could not be substantiated even with the aid of
section 149 of IPC for the offence punishable u/s 307 or 326 or 148 of
IPC in absence of any tinge of evidence that the appellant was one of
the members of unlawful assembly.
10. The Doctor P.W. 6- Dr. Niranjan Kumar Jha stated in his evi-
dence that on 24.09.2000 at about 4.30 p.m. he examined Ajit Barai
the injured and found the following injuries on his person:
i. One sharp cut injury over parietal scalp measuring 3
1/2" x 1/4" profuse bleeding from the wound.
ii. One sharp cut injury over alee of nose measuring 1/2" x
1/8" x 1/8".
iii. One sharp cut injury over left palm measuring 1 ½ "x
¼ "x 1/8".
iv. One abrasion over right elbow measuring ½ "x ½"
v. Swelling and tenderness over both upper and lower ex-
tremity.
The doctor P.W. 6 proved the injury report which has been
marked as Ext. 1 and supplementary injury report Ext. 1/A. From
the perusal of the Ext. 1 and Ext. 1/A, it is found that most of the in-
juries are simple in nature except the injury no. ii.
11. P.W. 3 Kalpana Barai was the informant and the mother of in-
jured P.W. 7 and she has also not supported the involvement of this
appellant categorically and specifically in order to constitute the of-
fence punishable either under sections 148, 326 or u/s 307 of IPC. In
her examination in chief she has simply stated that he (appellant)
had given the order to assault to P.W. 7. She did not mention any
kind of specific role of the appellant in assaulting the P.W. 7. In para
14 she has stated that Ajit Barai was in jail in a murder case and
there had been a dispute between the appellant and the injured P.W.
7 Ajit Barai, therefore, from the evidences as emanating from the
testimonies of the witnesses particularly P.W. 7 and P.W. 3 it is
7 Cr. Appeal (SJ) No. 1606 of 2006
found that the possibility of false implication of the appellant cannot
be ruled out in this case inasmuch as there is no specific role of the
appellant when there is no specific testimony about the assault or
any kind of overt act by this appellant upon the injured P.W. 7 Ajit
Barai.
12. P.W. 2 Moril @ Mona Devi examined on behalf of the prose-
cution and is a hearsay witness as evident from para 1 of his deposi-
tion and she has totally falsified the case of the prosecution. This
witness has not been declared hostile by the prosecution. She stated
that there had been a dispute and quarrel but she did not remember
as to amongst whom the dispute had taken place. She categorically
denied her earlier version before the police. But, since the I.O. in this
case has not been examined and therefore the veracity and truthful-
ness of her earlier version before the police could not be appreciat-
ed. The version of P.W. 2 has not supported the case of the prosecu-
tion with respect to the role of the appellant in the commission of
the offence.
13. P.W. 4 Dhiren Biswas has been declared hostile and he has
not supported the case of the prosecution. Although he has been de-
clared hostile but in para 2 he has stated that he had given statement
before police and police had gone to place of occurrence. He further
stated that he had not seen that who had assaulted to Ajit Barai ex-
cept Ramani Sarkar.
14. Similarly P.W. 5 Tarak Barman @ Tares Barman has also de-
clared hostile. And he stated that he had not been examined and he
had never given his statement before the police.
15. P.W.-7 Ajit Barai was injured and victim in this case. He stat-
ed in his evidence that he returned from haat and was sitting on a
cot at his house then Mantu Saha came. He had talked with him
then Mantu Saha went away and thereafter the accused Ramani
Sarkar and his son Sanju and Biswajit Sarkar came there, abused
8 Cr. Appeal (SJ) No. 1606 of 2006
him and ordered to assault him. The accused Sanju Sarkar assaulted
him with Hasua on his nose and the accused Biswajit Sarkar assault-
ed him with farsa on his head. Thus he had not stated a single word
about the assault by appellant Ramani Sarkar. In para 5 he had stat-
ed that he had gone in jail in a murder case but that case is disposed
of.
16. On the other hand it is found that although no defence witness
has been examined but certain documents has been brought on rec-
ord, which are - Ext. A- certified copy of the charge sheet of Rajma-
hal P.S. Case No.150 dated 19.11.02 u/ss 302, 201 and 120-B of the
I.P.C., Ext. A/1-C.C. of the supplementary charge sheet of the same
case, Ext-B -certified copy of the charge sheet of Rajmahal P.S. Case
No.132 dated 7.7.99 u/ss 323, 341, 342, 504 and 359/34 I.P.C., Ext-C -
C.C. of F.I.R. of Rajmahal P.S. case No.150 dated 19.11.02, and Ext-
D- C.C. of F.I.R. of Rajmahal P.S. Case No.132 dated 7.7.99. All these
documents have been filed by the defence to show that the injured
Ajit Barai was an accused in a murder case and there was an ill feel-
ing between both the parties including the appellant and the injured
P.W.7. Ext-B shows that accused Ramani Sarkar had filed a case in
which Ajit Barai was an accused. From the perusal of these docu-
ments it is found that defence wanted to defend his case that the in-
jured Ajit Barai was an accused in several cases and the appellant
had also filed the cases against injured Ajit Barai and therefore, in
the present case where there was no even iota of evidence against
the appellant in the commission of the offence about any kind of as-
sault and the evidences establish the fact that he was simply present
at the place of occurrence. Even the fact that the appellant was order
giver to assault the P.W.7 has not been substantiated from the ver-
sion of the P.W.7 himself who did not utter a single word pointedly
against the appellant.
9 Cr. Appeal (SJ) No. 1606 of 2006
17. Recapitulating the testimonies of the witnesses examined on
behalf of the prosecution and other evidences adduced on behalf of
the parties it is well founded that the only charge against the appel-
lant is substantiated that he was present at the time of the occur-
rence and there had been a marpit between the appellant and the in-
jured P.W. 7 and no any assault either by any weapon or by any
means have been substantiated by any one of the witnesses exam-
ined on behalf of the prosecution as discussed elaborately in the
foregoing paragraphs against this appellant and, therefore, it is
found that the impugned judgment of conviction and order of sen-
tence does not hold good against the appellant Ramani Sarkar and
only offence which is substantiated against the appellant is u/s 323
r/w section 149 of IPC.
18. Accordingly the judgment of conviction dated 21.11.2006 and
order of sentence dated 22.11.2006 passed against the appellant Ra-
mani Sarkar by the learned 1st Additional Sessions Judge, Rajmahal
in Sessions Case No. 39 of 2002 corresponding Sessions Trial No. 223
of 2002 arising out of Rajmahal P.S. Case No. 164 of 2000, Rajmahal
in the district of Sahibganj, Jharkhand is set aside and this court up-
holds the conviction only for the offence punishable u/s 323 /149 of
IPC by altering the same.
19. Insomuch as the sentence is concerned it is found that the oc-
currence had taken place in the year 2000 and the at the time of the
trial the appellant was about 60 years old and over the efflux of time
this appellant has become about 80 years old. Further, this appellant
has been suffering from the trauma and misery of criminal prosecu-
tion more than last 20 years and in view of such mitigating factors, it
is manifest just and fair that the ends of justice would be meted out
if the accused appellant is sentenced for the period already under-
gone by him, as no useful purpose would be served to impose the
further sentence of imprisonment. Accordingly, the order of sen-
10 Cr. Appeal (SJ) No. 1606 of 2006
tence dated 22.11.2006 passed by the learned 1st Additional Sessions
Judge, Rajmahal in Sessions Case No. 39 of 2002 corresponding Ses-
sions Trial No. 223 of 2002 arising out of Rajmahal P.S. Case No. 164
of 2000, Rajmahal in the district of Sahibganj, Jharkhand against the
appellant Ramani Sarkar is set aside and the appellant is sentenced
to the imprisonment for a term of the period already undergone by
him.
20. In the result this appeal is partly allowed as above.
21. Since the appellant is on bail, he is discharged from the liabili-
ties of the bail bonds.
22. Let the copy of the judgment be sent to the learned court be-
low along with Lower Court Records.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 10.10.2022/NAFR
MM/-
