Jharkhand High Court

Ghanshyam Pandey vs The State Of Jharkhand on 1 August, 2023

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. Revision No.492 of 2022
1.Ghanshyam Pandey
2.Vibhuti Kumar Pandey                          ..... ... Petitioners
                            Versus
1.The State of Jharkhand
2.Brajendra Kumar Pandey @ Brajendra Pandey
                                         .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioners : Mr. Sheo Kumar Singh, Advocate For the State : Mr. P.K. Chatterjee, Spl. P.P. For the O.P. No.2 : Mr. Rakesh Kumar, Advocate

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07/1 August, 2023 st

1. The present criminal revision has been preferred against the order

dated 26th April, 2022 passed by the learned Additional Sessions

Judge-V, Palamau at Daltonganj, whereby and whereunder the

discharge petition filed on behalf of the petitioners under Section

227 Cr.P.C. has been rejected and the order has been passed to

frame charges against the petitioners under Section

341/323/325/307/34 in connection with Haidarnagar P.S. Case

No.55 of 2017.

2. Learned counsel for the petitioners has submitted that as per

F.I.R. allegations his elder brother Ghanshyam Pandey, his nephew

Vibhuti Pandey and his Bhabhi Puspha Devi, all wanted to evict

him from his house and on 10th June, 2017 at 09:15 a.m. he

asked the reason of the same. On this, his nephew Vibhuti Pandey

assaulted with Tangi on his head, whereby he sustained injury and

the blood was oozing. Further his brother Ghanshyam Pandey and

his Bhabhi Puspha Devi also assaulted him with lathi and danda.

3. Learned counsel for the petitioners has further submitted that the

petitioners are innocent and have committed no offence as

alleged. So far as the nature of injury of O.P. No.2 Brajendra

Pandey is concerned, the same is simple in nature; while the

injury report of his wife - Kalinda Devi shows that her left

shoulder was fractured and for the same the learned trial court

has altered the offence into Section 325 IPC in place of Section

326 IPC. The petitioners are aggrieved only to this extent that the

learned trial court has not discharged the petitioners from the

charge under Section 307 IPC. Learned counsel for the petitioners

in support of his contention has relied upon a judgment of Gujarat

High Court rendered in the case of Rohit Babuji Thakor & Anr.

vs. State of Gujarat reported in 2010 (3) GCD 2091 (Guj).

4. Learned A.P.P. appearing for the State and learned counsel for the

Opposite Party No.2 vehemently opposed the contentions made by

the learned counsel for the petitioners and contended that the

learned trial court has passed the order in view of the allegations

made in the F.I.R. and also the statement of the witnesses

recorded under Section 161 Cr.P.C. as well as keeping in view the

medical report in regard to injuries of the injured persons. It is

further contended that even the injury which the informant had

sustained was simple in nature, yet the same was on vital part of

the body i.e., head.

5. Learned counsel for the informant in support of his contention has

relied upon a judgment of Hon'ble Apex Court rendered in the

case of State of Delhi vs. Gyan Devi & Ors. reported in 2000

(7) Supreme 201. It is further submitted that in view of the

testimony of the witnesses under Section 161 Cr.P.C., the

impugned order passed by the learned trial court needs no

interference.

6. From the perusal of the impugned order passed by the learned

trial court, it is found that the learned trial court has taken into

consideration the allegations made in the F.I.R., the statement of

the witnesses recorded by the I.O. under Section 161 Cr.P.C and

the medical evidence as well.

7. The witnesses, namely, Dilip Sao, Varun Pandey, Nathuni

Chandravanshi, Gajendra Vishwakarma and Ravi Ranjan Tiwari

whose statements have been recorded in paragraphs 8, 9, 10, 11

and 12 of the case-diary have stated that Vibhuti Pandey had

assaulted with Tangi on the forehead of informant and Ghanshyam

Pandey had assaulted with lathi. As per paragraphs 30 and 31 of

the case-diary, there was lacerated wound over the right parital

region of the scalp of Brajendra Pandey. Though the said injury

was simple in nature, yet caused by hard and blunt object. So far

as injury of Kalinda Devi is concerned, the same is grievous in

nature i.e., fracture on the right shoulder. It is the settled law that

intention can only be inferred from the conduct and act of the

accused persons and also the weapons with which they are

armed. In this case, the accused Vibhuti Pandey was armed with

Tangi while Ghanshyam Pandey and his wife were armed with lathi

and danda. The act of Vibhuti Pandey in inflicting injury with tangi

on the forehead of the informant shows his intention to commit

murder, though the injury was simple in nature but it was on vital

part. So far as the injury upon the wife of the informant is

concerned, the same was grievous in nature but the same was on

non-vital part caused by the hard and blunt object, therefore, the

learned trial court has rightly converted the offence under Section

326 IPC into 325 IPC. So far as the offence under Section 307 IPC

is concerned, the same is prima facie made out against the

petitioners and the order dated 26th April, 2022 passed by the

learned trial court needs no interference as the same bears no

infirmity and illegality.

8. The Hon'ble Apex Court in the case of State of M.P. v. Harjeet

Singh reported in (2019) 20 SCC 524 at paragraphs 5.6.2 and

5.6.4 has held as under :

"5.6.2. This Court in R. Prakash v. State of Karnataka [R. Prakash v. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408] , held that: (SCC p. 30, paras 8-9) "8. ... The first blow was on a vital part, that is, on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigour of Section 307 IPC. ...

9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was

done with the intention or knowledge and under circumstances mentioned in the section."

(emphasis supplied) "5.6.4. This Court in Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] held that: (SCC p. 370, para 12) "12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc."

(emphasis supplied)

9. In view of the aforesaid discussions and the settled legal

proposition, the impugned order dated 26th April, 2022 passed by

the learned Additional Sessions Judge-V, Palamau at Daltonganj

bears no infirmity and the same is hereby affirmed.