Jharkhand High Court
Shyam Lal Sah vs The State Of Jharkhand on 3 May, 2023
1 Cr. Appeal (S.J.) No. 4 of 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 4 of 2011
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(Against the judgement of conviction dated 18.12.2010 and order of sentence
dated 20.12.2010 passed by the Court of learned Sessions Judge, Godda in
Sessions Case No. 184 of 2008 in connection with Mahgama P.S. Case
No.41/2007 corresponding to G.R. Case No.216/2007 Godda, Jharkhand.)
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1. Shyam Lal Sah
2. Prakash Sah
3. Chhedi Sah
4. Hiraman Sah ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Aashish Kumar, Advocate
For the State : Mr. Bishambhar Shastri, A.P.P.
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rd
JUDGMENT-Dated: 3 May, 2023
1. This appeal is directed against the judgement of conviction dated 18.12.2010
and order of sentence dated 20.12.2010 passed by the Court of learned Sessions
Judge, Godda in Sessions Case No. 184 of 2008, whereby and where under
appellant No. 1, Shyam Lal Sah, appellant No. 2, Prakash Sah and appellant No. 4,
Hiraman Sah, have been convicted for the offence punishable under Section 307/
34 of the Indian Penal Code and appellant No. 3, Chhedi Sah, has been convicted
for the offence punishable under Section 307 of the Indian Penal Code and all the
appellants have been directed to undergo rigorous imprisonment for 5 years and to
pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo
simple imprisonment for one month and the period undergone during trial by the
appellants shall stand set off from the term of punishment.
2. Gist of the prosecution case in brief was that on 02.03.2007 the wife of
Hiraman Sah, the wife of Prakash Sah as also Prakash Sah told to remove the bean
(Sem) creepers to which the mother of the informant Birbal Sah P.W.1 asked as to
why the said creeper be removed. At this the wife of Hiraman Sah and the wife of
Prakash Sah as well as Prakash Sah abused and assaulted the mother of Birbal Sah
but at that time by the intervention of the villagers the quarrel was pacified. At
about 5:00 P. M. on that same day Hiraman Sah, Shyam Lal Sah and Prakash Sah
2 Cr. Appeal (S.J.) No. 4 of 2011
again quarrelled and abused the mother of Birbal Sah and the informant Birbal Sah
saw his mother being assaulted. In the meanwhile Chhedi Sah with an intention to
murder the mother of the informant assaulted the mother of the informant with a
sharp edged country side flat iron weapon, commonly known as Gainta by which
the head of the mother of the informant was ruptured and she became senseless
and when Birbal Sah came to rescue his mother, Shyam Lal Sah caught hold of the
waist of Birbal Sah and Hiraman Sah with Lathi and Prakash Sah with iron-garasa
assaulted on the head of the informant resulting in cut injury on the head of the
informant and when the villagers came running, Chhedi Sah leaving the Gainta at
the spot fled away with other accused persons from the spot. Police recorded the
fardbeyan of the informant accordingly and registered Mahgama P.S. Case No. 41
of 2007 dated 03.03.2007 and took up investigation of the case. After completion
of investigation police submitted charge sheet against the accused persons for the
offence punishable under Sections 341/ 323/324/ 307/34 of the Indian Penal Code
and vide order dated 05.04.2008 the learned C.J.M. Godda took cognizance of the
offence and the case was committed to the court of Sessions on 30.07.2008.
Learned Sessions Judge Godda framed charge on 11.05.2009 for the offence
punishable u/s 307/34,324 and 341 of IPC against accused persons Chhedi Sah,
Hiraman Sah, Prakash Sah and Shyamlal Sah and a separate charge u/s 307/34 was
also framed against the said accused/appellants. Against accused Meena Devi,
Prakash Sah and Sugawati Devi charge for the offence punishable u/s 323 IPC was
framed. The charges were read over and explained to the accused persons in Hindi
to which they pleaded not guilty and claimed to be tried.
3. The learned Trial Court after conducting the full-fledged trial passed the
impugned judgement of conviction and order of sentence which is under
challenge.
4. Heard learned counsel for the appellants and the learned counsel for the State.
Arguments advanced on behalf of the appellants.
5. Learned counsel appearing on behalf of the appellants has contended at the
outset that the learned Trial Court did not appreciate the depositions of the injured
witnesses namely; P.W.-1, Birbal Sah and P.W.-3, Masomat Kalawati, in view of
the fact that both of them have stated that the injuries inflicted upon them by the
sharp cutting weapon including Lohay Ka Gainta (Flat Iron Rod-a sharp cutting
weapon) and Garasa i.e. also a sharp cutting weapon and also by Lathi but the
3 Cr. Appeal (S.J.) No. 4 of 2011
doctor who has been examined as P.W.-11, Dr. Laxmi Narayan Sharma, found that
the injuries inflicted upon the injured persons; P.W.-1, Birbal Sah and P.W.-3,
Masomat Kalawati were simple in nature caused by hard and blunt substance and
no sharp cutting weapon has been used and therefore, the depositions of P.W.-1,
Birbal Sah and P.W.-3, Masomat Kalawati who are vital witnesses in order to
substantiate the case of the prosecution is not truthful and reliable in order to
substantiate the offence punishable under Section 307 of the Indian Penal Code
and utmost it is a case under Section 323 of the Indian Penal Code, in view of the
fact that the injuries are simple in nature and no repeated blow has been given by
anyone of the appellants which is the admitted case of the prosecution and that too
neither by Lohay Ka Gainta nor by Garasa as both were sharp cutting weapons
but the doctor P.W.11 did not find any kind of injury by sharp cutting weapons.
Further, it has also been submitted on behalf of the appellants that the I.O.
in this case has been examined as P.W.-10, (Babulal Choudhary) and he did not
find any weapon or any article or any incriminating material at the place of
occurrence while as a matter of fact from the F.I.R. itself it is evident that the said
Lohay Ka Gainta (Flat Iron Rod) and Garasa i.e. both sharp cutting weapons, both
the weapons were lying at the place of occurrence as disclosed by the informant in
the F.I.R. but neither any recovery of those weapons from the place of occurrence
nor any material exhibit has been brought on record and therefore, the appellant
have been debarred from their valuable rights in order to cross-examine the doctor
who had medically examined the injured persons i.e. P.W.-1, Birbal Sah and P.W.-
3, Masomat Kalawati in order to ascertain as to whether the injuries inflicted upon
the injured persons were caused by these weapons or not and thus the prosecution
has failed to substantiate the charges under Section 307 of the Indian Penal Code
under which these appellants have been convicted read with Section 34 of the
Indian Penal Code and therefore, it is urged on behalf of the appellants that the
impugned judgement of conviction and order of sentence is bad in law and fit to
be set aside.
Arguments advanced on behalf of the State-
6. On the other hand, the learned APP for the State opposed the contentions
raised on behalf of the appellants and submitted that it is true that the injuries
inflicted upon the injured persons i.e. P.W.-1, Birbal Sah and P.W.-3, Masomat
Kalawati have been found to be simple in nature by the doctor i.e. P.W.-11, Dr.
4 Cr. Appeal (S.J.) No. 4 of 2011
Laxmi Narayan Sharma and the said injury caused upon them has been opined by
the doctor as caused by hard and blunt substance and no sharp cutting weapon has
been used but the fact remains to take into consideration that both the injured
persons i.e. P.W.-1, Birbal Sah and P.W.-3, Masomat Kalawati have sustained
injuries and therefore, the learned Trial Court has rightly found the guilt of the
accused appellants and all the witnesses apart from P.W.-1 and P.W.-3 have
supported that there had been quarrel between the appellants and the injured
persons by which the injured persons i.e. P.W.-1, Birbal Sah and P.W.-3, Masomat
Kalawati had sustained the injuries and therefore there is no legal point to interfere
in the impugned judgment of conviction and order of sentence and this appeal is
fit to be dismissed being devoid of merit.
APPRAISAL AND FINDINGS
7. Having heard the parties, perused the records of this case including the
Lower Court Records.
8. In order to substantiate the evidence, it is found that the prosecution has
been able to examine 11 witnesses. P.W.-1, Birbal Sah, P.W.-2, Arjun Sah, P.W.-3,
Mosomat Kalawati, P.W.-4, Md. Nazeer, P.W.-5, Bijay Kumar Sao, P.W.-6, Satya
Narain, P.W.-7, Sarita Devi, P.W.-8, Bharat Singh, P.W.-9, Jai Narayan Bhagat,
P.W.-10, Babulal Choudhary and P.W.-11, Dr. Laxmi Narayan Sharma. Apart from
oral evidences some documents have also been proved on behalf of the prosecution
as under:- Exhibit-1, Fardbeyan of the informant, P.W.-1, Birbal Sah, Exhibit-
1/1, Endorsement on the registration of the case of the fardbeyan, Exhibit-2,
Formal F.I.R., Exhibit-3, Forwarding letter of the injured Birbal Sah for medical
treatment, Exhibit-3/1, Forwarding letter of the injured widow Kalawati Devi,
Exhibit-4 Injury report of the injured P.W.-1, Birbal Sah and Exhibit-4/1, Injury
report of another injured witness P.W.-3, Mosomat Kalawati Devi. No evidence
has been adduced on behalf of the defence.
9. P.W.-1, Birbal Sah, is the informant and victim of this case and he is said
to have been injured by the assault of the appellants. This injured witness P.W.-1,
Birbal Sah had stated in his deposition that his mother P.W.-3, Mosomat Kalawati
had sustained injury on her forehead by Lohay Ka Gainta (Flat Iron Rod) but the
doctor P.W.-11, has not found any injury of sharp cutting weapons either of Lohay
Ka Gainta (Flat Iron Rod) or garasa. Further, this witness has stated that he was
assaulted by Lathi on his hand and neck and further by Garasa on his head but the
5 Cr. Appeal (S.J.) No. 4 of 2011
doctor P.W.-11 has not found any injury on his head and thus the version of this
witness does not get substantiated with the injury report as found by the doctor i.e.
P.W.-11 who had medically examined this injured i.e. P.W.-1 and did not find any
injury on his head or any injury of sharp cutting weapon. But the fact remains to
take into consideration that the doctor P.W.-11 had found the injury upon both the
injured persons i.e. P.W.-1, Birbal Sah and P.W.-3, Masomat Kalawati, which are
simple in nature caused by hard and blunt substance and thus the assault by Lathi
is substantiated. In this view of the matter, the offence under Section 307 is not
corroborated rather the simple injury caused by Lathi is substantiated i.e. Section
323 of the Indian Penal Code in absence of any repeated blows even by lathi in
order to infer the knowledge or intention to commit murder in order to constitute
the offence for attempt to murder to sustain the offence punishable under section
307 of the IPC.
10. Another injured witness i.e. P.W.-3, Mosomat Kalawati Devi also stated
that she had sustained the injury by Lohay Ka Gainta (Flat Iron Rod) and P.W.-1,
Birbal Sah, had sustained the injury by Garasa i.e. also a sharp cutting weapon
and from the perusal of the injury report i.e. Exhibit-4 and Exhibit-4/1 and the
version of the doctor, P.W.-11, no injury of sharp cutting weapon has been found
and only the injuries of hard and blunt substance and that too simple in nature has
been found and thus the version of this injured witness i.e. P.W.-3, has also not
supported the case of the prosecution that the injured persons including P.W.-1 and
P.W.-3 had sustained the injuries by sharp cutting weapon in order to infer the
intention and knowledge of committing murder in order to prove the charge for
the offence punishable under Section 307 of the Indian Penal Code under which
the learned Trial Court has found all the appellants to be guilty.
11. In this view of the matter, from the version of the injured persons i.e.
P.W.-1 and P.W.-3, it is well founded that there had been a quarrel between the
appellants and P.W.-1 and P.W.-3 and in the said quarrel Lathi might have been
used by which both the injured persons i.e. P.W.-1 and P.W.-3, had sustained simple
injuries as evident from the version of P.W.-11 and Exhibit-4 and Exhibit-4/1.
12. P.W.-11 Dr. Laxmi Narayan Sharma, is the doctor who had stated in his
deposition that on 02.03.2007 on the basis of police requisition he had medically
examined P.W.-1, Birbal Sah and found (i) Lacerated wound on left side head 4
cm x 1/2 cm x scalp deep and further he stated that on the same day he also
6 Cr. Appeal (S.J.) No. 4 of 2011
examined Masomat Kalawati Devi and found the following: (ii) Lacerated wound
on frontal area of head on right side 7cm x 1/2 cm x scalp deep and stated that the
injuries of both the injured were simple in nature and was caused by hard and blunt
substance. The age of both the injuries were within two hours.
It has further been deposed that the two injury reports were prepared by him
and the same was in his handwriting and signature which he identifies and which
were marked as Exhibit-4 and Exhibit-4/1,
In the cross-examination it has been stated by the Dr. PW-11 that the injury of
Birbal Sah is not possible by assault with Garasa. The injury of Mosomat Kalawati
is not possible by assault with sharp edged Gainta. The injuries of both the victims
are possible by fall on hard and rough surface. He had not mentioned the colour of
injury but assessed the age of injury on the basis of clot of blood.
13. In the light of the aforesaid deposition and the testimonies of P.W.-1 and
P.W.-3 read with depositions of the doctor P.W.11, it is well founded that they have
sustained simple injuries and that too by hard and blunt substance and it is not
proved at all that any weapon Lohay Ka Gainta or Garasa as alleged in the F.I.R.
has been used in the commission of the offence.
14. The I.O. in this case has been examined as P.W.-10, Babulal Choudhary
and he categorically stated that he did not find anything worth making seizure from
the place of occurrence i.e. neither the Lohay Ka Gainta (Flat Iron Rod) nor the
Garasa i.e. sharp cutting weapon and it has been found in contravention of the
statement of P.W.-1 and P.W.-3 as stated in the FIR. He has proved two requisition
for medical examination reports which are marked as Ext.3 and Ext.3/1.
15. Further, other witnesses who have been examined on behalf of the
prosecution are P.W.-2, Arjun Sah, P.W.-4, Md. Nazeer, P.W.-6, Satya Narain and
P.W.-7, Sarita Devi.
16. P.W.-2 Arjun Sah being the brother of the informant stated that occurrence
took place on 02.03.2007 at 5.00 p.m. and Sugawati Devi and Meena Devi
assaulted his mother with rod and lathi, thereupon Chhedi Sah came and assaulted
the mother of PW-2 with Gaita on her head. The head of his mother was ruptured
and blood started oozing out then mother became senseless and when PW-1 came
to rescue the mother, Shyamlal Sah caught hold of the waist of PW-1 and Hiraman
Sah assaulted on his shoulder and other places of body with lathi and Prakash Sah
assaulted on the head of PW-1 with Garasa. The head of PW-1 was also ruptured
7 Cr. Appeal (S.J.) No. 4 of 2011
and he became senseless. As such the version of this witness also gets falsified in
the light of aforesaid appraisal of testimonies of P.W.1 and P.W.3.
17. PW-4 Md. Nazeer has stated that that 2 years prior to his deposing
Hiraman Sah assaulted the PW-1 and PW-1 sustained injury on his head. In the
cross-examination he had stated that his house is situated 4-5 houses after the
house of PW-1
18. PW-6 Satya Narain Sao is hearsay witness and had simply stated that he
had heard that there was exchange of assaults between the PW-1 and Hiraman Sah.
PW-1 and PW-3 had sustained injury on their head.
19. P.W.-7, Sarita Devi, stated that there had been quarrel between both the
parties in which the two persons had sustained injuries including P.W.-1 and P.W.-
3 and thus the case of the prosecution has been supported to that extent only that
by the assault of the appellants, P.W.-1 and P.W.-3, had sustained the injuries and
as discussed in the foregoing paragraphs, it is well founded that both the injuries
which were inflicted upon the injured persons i.e. P.W.-1 and P.W.-3, were simple
in nature and they were not of such nature in order to infer the intention and
knowledge of the appellants to commit their murder in order to substantiate the
charges under Section 307 of the Indian Penal Code under which they have been
found guilty by the learned Court below and therefore a patent error is found in
the appreciation of the evidence by the learned Court below as the offence under
Section 307 of the Indian Penal Code is not substantiated at all.
20. P.W.-5, Bijay Kumar Sao and P.W.-9, Jai Narayan Bhagat, have been
declared hostile as they have not supported the case of the prosecution.
21. P.W.-8, Bharat Singh, is the part I.O. who has submitted the charge-sheet
after taking of charge from the I.O. who is P.W.-10.
22. In view of the aforesaid discussions, it is manifest that the learned Trial
Court has committed error in holding the guilt of the accused appellants for the
offence punishable under Section 307/34 of the Indian Penal Code as it is a case
under Section 323/34 of the Indian Penal Code.
23. Accordingly, the impugned judgement of conviction dated 18.12.2010 and
order of sentence dated 20.12.2010 passed by the Court of learned Sessions Judge,
Godda in Sessions Case No. 184 of 2008, against the appellants in Mahgama P.S.
Case No. 41 of 2007, are set aside and these appellants are held guilty for the
offence punishable under Section 323 read with Section 34 of the Indian Penal
8 Cr. Appeal (S.J.) No. 4 of 2011
Code and accordingly the impugned conviction passed against the appellants are
altered and they are convicted for the offence punishable under Section 323 read
with Section 34 of the Indian Penal Code.
24. So far as the sentence is concerned, it is found from the record that the
appellant, Shyam Lal Sah has remained in jail for about 44 days, appellant Prakash
Sah has remained in jail for about 33 days, appellant Chhedi Sah has remained in
jail for about 33 days and appellant Hiraman Sah has remained in jail for about 38
days. Further, it is also found that the incident has taken place as far back as in the
year 2007 and all the appellants over a period of time have reached to their middle
age and they have been suffering the misery and trauma of criminal prosecution
for a long period of time and there is nothing on the record to show any criminal
incident, therefore no useful purpose would be served to send the appellants again
in jail and the purpose of justice would be meted out if they are sentenced to
imprisonment for the period already undergone by them and further a sentence of
fine may be imposed by way of compensation to the injured persons.
25. Accordingly, the appellants are sentenced to imprisonment for the period
already undergone by them and further sentence of fine is awarded to each of the
appellants with a direction to pay the fine of Rs.2,000/-(Rupees Two Thousand)
by each of the appellants in order to give it either to victim, P.W.-1 or P.W.-3.
26. Since the appellant are on bail and therefore, a time of four months is
given to the appellants to pay the aforesaid fine and in default of payment of fine
they are directed to undergo simple imprisonment for two years. The appellants
may deposit the fine amount through the Nazarat of the concerned Civil Court in
order to give it to the victims P.W.-1, Birbal Sah or P.W.-3, Mosomat Kalawati, by
way of compensation.
27. The learned trial court is directed to ensure that the said fine amount is
deposited within the stipulated period of time and if the same is not deposited by
the appellants, then they will serve the sentence as awarded in case of default of
payment of fine by taking all necessary measures as per the provisions of law to
ensure that the appellants serves the sentence of imprisonment in case of default
of payment of fine as awarded by this court.
28. The appellants have been allowed to deposit the said fine amount through
the Nazarat of the concerned Civil Court and at the moment the appellants deposit
the fine amount, the appellants shall be released and/ discharged from the liabilities
9 Cr. Appeal (S.J.) No. 4 of 2011
of bail bonds accordingly in this case. The learned court below is also directed that
on deposit of the said fine amount by the appellants, the notice will be sent to the
victim P.W.-1, Birbal Sah and P.W.-3, Mosomat Kalawati, who are the victims and
on their appearance the said fine amount, if so deposited by the appellants, shall
be disbursed to them. In case, if the said victims are not traceable or not available
or not found at the given address, or does not appear before the court, the same
shall be disbursed to the close or near relatives or kith and kin of the said victims,
as the concerned learned trial court may deem fit and proper, and in this regard the
court concerned may also involve the Para Legal Volunteer (PLV) of District Legal
services Authority (DLSA), Godda, if required.
29. This appeal is partly allowed as above.
30. Let the Lower Court Records and the copy of judgement be also
transmitted to the learned Court below for its compliance in letter and spirit.
D.S./J.Minj (Navneet Kumar, J.)
