Jharkhand High Court
Krishnadeo Prasad vs The State Of Jharkhand on 31 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (SJ) No. 1100 of 2004
-----
1.Krishnadeo Prasad
2.Satish Prasad
3.Pramod Prasad @ Munna .... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
WITH
Criminal Appeal (SJ) No. 1104 of 2004
-----
1.Baijnath Prasad
2.Surajdeo Prasad
3.Santosh Prasad .... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
------
CORAM : SRI ANANDA SEN, J.
------
For the Appellant(s) : Mr. A.K. Kashyap, Advocate. (In both cases)
For the State : Mr. Prabhu Dayal Agrawal, Spl. P.P. (in Cr.A. No.1100/2004)
Mrs. Nehala Sharmin, A.P.P. (in Cr.A. No.1104/2004)
.........
08/ 31.08.2023: Heard, learned counsel for the parties.
2. Be noted that Baijnath Prasad, appellant No.1 in Criminal
Appeal (SJ) No.1104 of 2004 has died on 26.11.2013. His name was
struck off vide order dated 04.09.2019.
3. This instant cases arises out of FIR being Garu P.S. Case No.14 of
1999, which was initially registered under Sections 147, 148, 149, 379,
426 and 323 of IPC. The police investigated, and thereafter filed
chargesheet No.3 of 2000 dated 31.01.2000 under Sections 147, 148, 149,
379, 426, 323 and 307 of IPC.
4. The prosecution case is that the informant, Magan Ram at about
9.00 A.M. on 12.11.1999 was arranging his shop with his son and at
that point Krishnadeo Prasad, Baijnath Prasad, Suraj Prasad, Santosh
Prasad, Pramod Prasad @ Munna and Satish Prasad by forming an
unlawful assembly, armed with weapon like stick (lathi) bhala (spear)
and gandasa (sharp cutting weapon) attacked the informant. The
informant sustained injuries. His son came to save the informant, who
was also assaulted and items of the shop were taken from the shop and
some were broken by them. It is also alleged that they have taken
Rs.1000/- from pocket of the informant and snatched a wrist watch
from his son.
5. The police investigated the case and filed chargesheet. To prove
the case, the prosecution has examined eight witnesses. On behalf of
the defence two witnesses were also examined. The defence has also
exhibited FIR of Garu P.S. Case No.15 of 1999 (the counter case) and
the written report and final form of that case.
6. The son of informant is P.W.-1 stated that on the date of
occurrence he and his father were arranging their shop when all the
accused persons armed with deadly weapons i.e. lathi, bhala and
gadasa came there, entered the shop and by forming an unlawful
assembly started assaulting his father. His father sustained injuries on
the neck, forehead and knee and blood started oozing out from the
said injuries. This witness went to save his father but he was also
assaulted. He also sustained injury on the upper lip, on his teeth and
other part of the body. He stated that accused persons damaged all the
articles in the shop and had taken away Rs.1000/- from the pocket of
his father and also snatched his watch. He submits that there were
several persons who witnessed the said occurrence and came
thereafter to save them. He admits that there is a counter case against
them, which was lodged on the same date.
7. P.W.-2 and P.W.-3 are independent witnesses, who supported
the version of the informant and stated that informant and his son
were assaulted by lathi, bhala and gadasa and they have seen the
occurrence. They have also supported the fact that the materials of the
shop were damaged by the accused persons. They also stated that 30
to 40 persons gathered at the place of occurrence when the informants
were being assaulted. Further they stated that due to fear they did not
intervene.
8. P.W.-4 is a tendered witness and P.W.-5 is hostile.
9. P.W.-6 is Doctor, Deepak Kumar Sharma. He has examined both
the informant and his son on 12.11.1999. The injuries upon Magan Ram
were as follows:-
i)Incised wound overhead 4" x ¼" x bone deep.
ii)Swelling of bone over right wrist.
iii)Abraison 1" x ½" over right knee.
iv) Abraison ½" x ½" over left knee.
v)Bruises three in number 4" x 1" over back.
On the same day Dr. Deepak Kumar Sharma, examined
Ramanand Kumar, S/o Magan Ram and found the following injuries:-
i)Lacerated injuries above left eye ½" x ½" skin deep.
ii)Lacerated wound over middle of upper lip ½" x ½" x ¼".
iii)Swelling with bone over right wrist.
iv)Bruise of size 2" x 1" over right side of forehead.
v)Bruise over chest of size 5" x1".
vi) 5 bruises of size 4" x 1" over back.
vii)Injury No.7, injuries to right incisor teeth.
He opined that Magan Ram sustained incised wound injury on
the head i.e. 4" x ½" bone deep, which is caused by sharp cutting
weapon and the nature of this injuries is dangerous to life and the rest
of injuries caused by hard and blunt substance are simple in nature.
So far as injured, Ramanand Kumar is concerned, Doctor opined
that all the injuries are simple. But the doctor in his cross-examination
stated that this injury was not dangerous to life.
10. P.W.7 is the informant, Magan Ram, who stated that he was
present in the shop along with his son when all the accused persons
arrived, forming an unlawful assembly and in furtherance of common
object and with intentions to cause their death, started assaulting the
informant including his son. He further stated that wrist watch of his
son was snatched by them and some cash was also taken. He stated
that while they were proceeding to the police station, they were again
assaulted by Munna Prasad. He proved the written report and in
cross-examination he further stated that there is land dispute going on
between the parties in relation to Khata No.14, Plot No.218. He also
admitted that there, is a case and counter case regarding the said land.
11. P.W.-8 is the Investigating Officer, he stated that he found
broken articles in the shop of the informant along with brick pieces
lying there and the cash box was also broken. He referred the
informant and his son to the hospital and thereafter a written report
was prepared. He proved the endorsement of the written report as
Exhibit-2/1 of the formal F.I.R. He admitted that he has not prepared
any seizure list of the scattered broken articles lying in the shop as well
as of the cash box. He stated that a counter case was also filed being
Garu P.S. Case No.15 of 1999 by Surajdeo Prasad. He also stated that
in respect of the aforesaid case requisition were also made regarding
the injured and they also referred Surajdeo Prasad, Santosh Prasad and
Krishna Deo Prasad to Referral Hospital, Garu for treatment. This
witness has proved the injuries reports as Exhibits-A and A/1.
12. Two witnesses were examined on behalf of the defence.
13. D.W.-1, Nasim Ahmed has proved the formal F.I.R. of Garu P.S.
Case No.15 of 1999 and the final form of the said case and in the said
case, the informant of this case has been chargesheeted, which is
exhibited as Exhibit-D 1/2.
14. D.W.-2 was Surajdeo Prasad, who is also an accused in this case.
He stated that when he was repairing his shop when the informant of
this case i.e. Magan Ram, Arun Prasad and Anand Prasad, objected
and an altercation took place between them and in that course he was
assaulted by them. He was threatened to vacate the shop or otherwise
be ready to face dire consequences. In cross-examination, he has
admitted that one eviction suit being Eviction Suit No.1 of 1996 was
pending in the court of Munsif, Latehar, in which the order was passed
against them. Further, he stated that there are several litigations
between the parties.
15. From the aforesaid evidence adduced, now it has to be seen
whether the prosecution has successfully proved the case against these
appellants beyond all reasonable doubt or not? The conviction of these
appellants is under Sections 148, 307/149, 323/149 and 426 of IPC. The
accused, Santosh Prasad and Surajdeo Prasad are found guilty under
Section 379 of IPC also.
16. Section 307 of IPC provides of punishment for attempt to
murder. It is necessary to quote Section 307 of IPC, which is
hereunder:-
"307. Attempt to murder:- Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that act caused death, he would be
guilty of murder, shall be punished with imprisonment of either description of a term which
may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to [imprisonment for life] or to such
punishment as is hereinbefore mentioned."
17. From bare reading of Section 307 of IPC it is quite clear that there
has to be intention or knowledge of the act which has to be committed,
and by that act death must have been caused. Thus the intention or
knowledge is paramount to sustain conviction under Section 307 of
IPC.
18. When I go through the evidence led by the prosecution, I find
that both the essential ingredients are missing. Though there was
assault upon the informant, but there was only one blow given on the
head of the informant by a sharp cutting weapon. The rest of the
assault was on the body, which may be caused by hard and blunt
substance. The Doctor in his opinion has clearly stated that the injury
No.1 is dangerous to life, but there is no evidence that the same was
inflected with intention or the knowledge for committing murder.
19. So far as the injury to son of the informant is concerned, the
Doctor has clearly stated that the injuries are caused by hard and blunt
substance, but they are simple in nature and also not dangerous to life.
Further, I find that there is a contradiction about the nature of injury
as stated by the Doctor himself. Thus, I find that there is no material to
convict the appellants under Section 307 of IPC.
20. So far as Section 323 of IPC is concerned, I find that the witnesses
have categorically stated that the informant and his son were assaulted
by these appellants. Though this is a general allegation, but the same
is against all. The eye witnesses, who are independent witnesses have
also stated that appellants have assaulted the informant and his son.
The injury report also corroborate the prosecution case that they were
assaulted by the appellants. Thus, I have no any hesitation to hold that
the prosecution has able to prove that the appellants have committed
offence of voluntary causing hurt. Thus their conviction under Section
323 read with Section 149 of IPC, needs no interference.
21. The appellants have also been convicted and punished under
Section 426 of IPC. Section 426 of IPC is the punishment for mischief.
The mischief is defined under Section 425 of the IPC, which reads as
follows:-
425. Mischief- Whoever with intent to cause, or knowing that he is likely to cause,
wrongful loss or damage to the public or to any person, causes the destruction of any
property, or any such change in any property or in the situation thereof as destroys or
diminishes its value or utility, or affects it injuriously, commits "mischief".
22. In this case, all the witnesses have stated that materials of the
shop which belong to the informant were damaged and broken by the
appellants. The witnesses including the I.O. have stated that they have
seen all the damaged and broken materials at the place of occurrence.
However, the I.O. has admitted that they have not seized any material
and nor even the broken pieces of any of the material were seized. The
witnesses have stated that bucket, glass etc., were damaged in the
occurrence. There is nothing on record to disbelieve the aforesaid
statement of the witnesses. Thus, so far as commission of mischief is
concerned, I hold that conviction of the appellants under Section 426
of IPC can also be sustained.
23. So far as Section 379 of IPC is concerned, the informant and his
son only stated that appellants have taken 1000/- rupees and some
money from the cash box and one watch. The other witnesses have not
stated about the commission of theft. Further from the impugned
judgment, I find that it is only Santosh Prasad and Surajdeo Prasad,
who were convicted under Section 379 of IPC. The informant and his
son has made the aforesaid statement in court while deposing. This
incriminating circumstances which has come during evidence against
Surajdeo Prasad and Santosh Prasad was not put forth by the court to
them while they were examined under Section 313 of Cr.P.C. It is well
settled principle of law that all the circumstances, which are against
the accused persons which is collected during evidence must be put to
the accused while recording the statement under Section 313 of Cr.P.C.
When I go through the statement recorded under Section 313 of Cr.P.C.
of Surajdeo Prasad and Santosh Prasad, I find that they were only
asked about the circumstances of assault and committing mischief by
destroying materials in the shop, but the statement of the witnesses
which suggest that these two persons have committed theft of cash
and watch, has not been put to them. Thus, this evidence of theft
cannot be used against them. Thus, I hold that conviction of these two
appellants under Section 379 of IPC cannot be sustained.
24. From what has been held above, I find that conviction of these
appellants under Sections 149 and 323 of IPC and under Section 426 of
IPC is sustainable. Thus, their conviction under the aforesaid Section
of IPC is upheld.
25. So far as conviction of all appellants under Sections 147, 148 and
307 of IPC and conviction of Santosh Prasad and Surajdeo Prasad
under Section 379 of IPC is concerned, the same is set aside.
26. It has been informed that the appellants have remained in
custody for one month and sixteen days. Thus, the sentence is modify
to the extent of period that they have already undergone, but the fine
amount of Rs.1000/- each is not been interfered with.
27. Thus, both these Criminal Appeals are partly allowed. The
judgment and sentence passed in Sessions Trial Case No.300 of 2001
by the learned 1st Additional District and Sessions Judge, Latehar is
modified only to the aforesaid extent.
28. The appellants, who are on bail, are discharged from liability of
their bail bonds.
(ANANDA SEN, J.)
R.S./
