Jharkhand High Court

Kishun Turi vs The State Of Jharkhand on 6 October, 2023

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. Appeal (S.J.) No.249 of 2011
 (Against the Judgment of Conviction and Order of sentence dated 24th
February, 2011 passed by the Additional Sessions Judge-cum-F.T.C. VII,
Giridih in Sessions Trial Case No.44 of 2000)
Kishun Turi                             ....          Appellant
                             Versus
The State of Jharkhand                    .....       Respondent
                             PRESENT
            HON'BLE MR. JUSTICE SUBHASH CHAND
                               .....

For the Appellants : Mr. Kumar Saurav, Amicus Curiae For the State : Mr. V.S. Sahay, A.P.P.

.....

C.A.V. 29.08.2023 Pronounced on 06.10.2023

1. Heard learned Amicus Curiae for the appellant and learned

A.P.P. for the State.

2. The instant criminal appeal is preferred on behalf of the

appellant against impugned Judgment of Conviction and Order

of Sentence dated 24th February, 2011 passed by the learned

Additional Sessions Judge-cum-F.T.C., Giridih in Sessions Trial

Case No.44 of 2000, whereby, the appellant has been convicted

for the offence under Sections 323/34, 341/34, 325/34, 427/34

and 307 of the Indian Penal Code and has been sentenced to

undergo simple imprisonment for one year under Section

323/34 of the I.P.C., simple imprisonment for one month under

Section 341/34 of the I.P.C., rigorous imprisonment for three

years under Section 325/34 of the I.P.C. and rigorous

imprisonment for two years under Section 427/34 of the I.P.C.

Further he was directed to undergo rigorous imprisonment for 5

years along with fine of Rs.5,000/- for the offence under Section

307 of the I.P.C. and in default of payment of fine he was

Cr. Appeal (S.J.) No.249 of 2011

directed to undergo simple imprisonment for three months. All

the sentences were directed to run concurrently.

3. The prosecution case in brief is that informant Jitan Rajak gave

the written information with these allegations that on 17th

March, 1999 at 10 o' clock of day time, the bullocks, goat and

swine of Kishun Turi were grazing the potato and wheat crop of

the informant and had damaged the same. He raised alarm

whose cattle were those. The wife of Kishun Turi came and

began to drive out those cattle. The informant stated that her

cattle had damaged his crop and the wife of Kishun Turi hurled

abuse to him. In the meantime the son of the informant

Ramdeo Rajak began to drive out the cattle with lathi. Kishun

Turi, Mahendra Turi, Mohan Turi all armed with lathi and sword

came there and began to assault to the son of the informant.

Kishun Turi assaulted with sword, whereby the informant's son

became injured. Mahendra Turi and Mohan Turi assaulted with

lathi to his daughter-in-law. The wife of informant's son,

namely, Geeta Devi and his grandson, namely, Shankar Kumar

Rajak came to rescue. The wife of Kishun Turi, namely, Manju

Devi also assaulted them with lathi and danda. On this written

information, the Case Crime No.27 of 1999 was registered with

the police station Jamua under Sections 341, 323, 324, 506/34

of the I.P.C. against the accused Kishun Turi, Mahendra Turi,

Mohan Turi and wife of Kishun Turi.

Cr. Appeal (S.J.) No.249 of 2011

4. The Investigating Officer after having concluded the

investigation filed charge-sheet against Kishun Turi, Mahendra

Turi, Mohan Turi, Bichhautiya Devi and Manju Devi for the

offence under Sections 341, 323, 325, 337, 307, 427 and 506

read with 34 of the I.P.C. and the Magistrate concerned after

having taken the cognizance thereon had committed the case

for trial to the court of Sessions Judge.

5. The trial court framed the charge against Kishun Turi, Mahendra

Turi, Mohan Turi, Bichhautiya Devi and Manju Devi for the

offence under Sections 323/34, 341/34, 325/34 427/34. The

charge-sheet under Section 307 of the I.P.C. was filed

separately against accused Kishun Turi. The charge was read

over to all the accused, who denied the charge and claimed for

trial.

6. On behalf of the prosecution to prove the charge against the

accused persons in oral evidence examined P.W.1-Jitan Rajak,

P.W.2-Ramdeo Rajak, P.W.3- Hari Narayan Singh (the I.O.),

P.W.4- Dr. Imran Sikol and P.W.5- Dr. Chandra Bhusan Sahai.

7. On behalf of the prosecution in documentary evidence adduced

formal F.I.R. Ext.1, forwarding on fard beyan Ext.2, Injury

report of Ramdeo Rajak Ext.3, second injury report of Ramdeo

Rajak Ext.4.

8. The statement of accused persons under Section 313 of the

Cr.P.C. was also recorded, wherein the accused persons denied

Cr. Appeal (S.J.) No.249 of 2011

the incriminating circumstances against them and no defence

evidence was adduced.

9. The learned trial court after hearing the learned counsel for the

parties passed the judgment of conviction and order of sentence

against all the accused persons/appellants as aforesaid. The

convicts, namely, Mahendra Turi, Mohan Turi, Bichautiya Devi

and Manju were released on probation of good conduct on their

entering into the bond of three years with one surety of

Rs.5000/- only to appear and receive sentence when called

upon during three years and in the meantime they were

directed to keep the peace and be of good behavior.

10. The convict/appellant - Kishun Turi being aggrieved with the

judgment of conviction and order of sentence preferred the

present criminal appeal on the grounds that the impugned

judgment of conviction and sentence is bad in the eyes of law.

The court below has not appreciated the evidence on record in

proper perspective. The appellant was convicted and sentenced

for the offence under Section 307 of the I.P.C. while neither the

weapon i.e., sword was recovered nor the nature of injury is

proved from the evidence on record. The ocular evidence is not

corroborated with the medical evidence. The appellant was also

convicted for the offence under Sections 323, 341, 325, 427

read with 34 of the I.P.C. but no ingredient of the alleged

charge is made out from the evidence on record. The learned

trial court released other co-convicts on probation for good

Cr. Appeal (S.J.) No.249 of 2011

conduct for the offence under Sections 323, 341, 325 and 427

read with 34 of the I.P.C. while the appellant - Kishun Turi was

sentenced separately for each of the offence without recording

any reasons for the same. The impugned judgment of conviction

is based on conjectures and surmises. The evidence was not

properly explained to the appellant while recording his

statement under Section 313 of the Cr.P.C. by the learned court

below.

11. Heard learned Amicus Curiae for the appellant and learned

A.P.P. for the State of Jharkhand and perused the materials

available on record.

12. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed against the

appellant, the evidence adduced on behalf of the prosecution is

to be re-appreciated herein.

13. P.W.-1 Jitan Rajak, in his examination-in-chief says that the

occurrence is of four years ago and the time was 10:00 a.m.

The swine and goats of Kishun Turi had damaged the potato

and wheat crop of him. He was driving them out of the

agricultural field. Hearing his sound his son Ramdeo came out of

the house and he was surrounded by Kishun Turi, Mahendra

Turi, Mohan Turi, daughter of Kishun Turi and wife of Kishun

Turi as well. All began to assault him. Kishun Turi assaulted with

sword with intent to kill him and also exhorted to other accused

to kill him. The other co-accused assaulted him with lathi. He

Cr. Appeal (S.J.) No.249 of 2011

went to police station concerned where the Daroga ji took them

to Giridih Sadar hospital and from there his son was referred to

Bariatu Hospital in Ranchi where his son was treated for one

month. They identified Kishun Turi, Mahendra Turi who were

present in the dock.

In cross-examination this witness says that he does not

recollect the day, date and year of the occurrence. He did not

sustain any injury. No other member from his side sustained

injury. He gave information at 10 o' clock in day time. He does

not recollect whether he gave reference of the bullock in his re-

statement or not. He could not tell the khata number, plot

number, area and boundary of the land of which the crop was

damaged. He has mentioned in his fard beyan that the assault

with sword was given on the head of his son.

14. P.W.-2 Ramdeo Rajak (the injured) in his examination-in-

chief says that the occurrence was of 10 o' clock of day time of

17th March, 1999. At the time of occurrence he was at his

house. The swine and the bullock of Kishun Turi had damaged

the potato crop of his agricultural field. His father Jitan Rajak

were driving them out of the agricultural field. The wife of

Kishun Turi hurled abuse to him. He reached there at the same

time, Kishun Turi, Mohan Turi, Chotu Rana and wife of Chotu

Turi, total six persons surrounded him and Kishun Turi assaulted

with sword on his head. The rest of the accused assaulted him

with lathi. His wife Geeta Devi and his nephew Shankar Rajak

Cr. Appeal (S.J.) No.249 of 2011

came to rescue and they were also assaulted by the accused

persons. He was taken for treatment to Jamua hospital from

there he was referred to Ranchi Medical College, where he

remained admitted for one month.

In cross-examination, this witness says that he could not

say that who had come at the time of occurrence when he was

assaulted by the accused persons. The maar peet took place for

ten minutes. He was in senses and he had given his statement

to the police. He was treated in Bariatu Hospital, Ranchi and he

does not recollect the date of admission and discharge from the

hospital. The place of occurrence was at the distance of 50 feet

from his house.

15. P.W.-3 Hari Narayan Singh in his examination-in-chief says

that on 17th March, 1999 he was posted as A.S.I. in Jamua

police station Giridih. The informant Jitan Rajak had given the

written information and on the basis of the same the

investigation of Jamua P.S. Case No.27 of 1999 was handed

over to him by the Officer-in-Charge of the police station. He

recorded the re-statement of the informant and also recorded

the statement of the injured Shankar Rajak and Geeta Devi. He

also inspected the place of occurrence at the pointing of

informant. In the agricultural field the crop of wheat and potato

was found damaged. There was mark of the legs of cattle. No

blood mark was found at the place of occurrence. The formal

F.I.R. was prepared by Naresh Sinha. He identified his signature

Cr. Appeal (S.J.) No.249 of 2011

and writing which was marked Ext.1. The endorsement of the

written information was also identified by this witness and

marked Ext.2. He did not recorded the khata and plot number of

the agricultural field on which the crop was damaged. The

occurrence of maar peet took place near the Kacchi Sadak.

16. P.W.-4 Dr. Imran Sikoh in his examination-in-chief stated

that on 17th March, 1999 he was posted at Sadar Hospital,

Giridih as C.A.S. and on that day at 2:05 p.m. he examined

Ramdeo Rajak of village Pargodih, P.S. Jamua District Giridih.

The patient was referred by the Medical Officer, P.H.C., Jamua

to Sadar Hospital, Giridih. He found the following injuries on his

person :

i. Lacerated wound 3" x ¼" x skin and scalp muscle deep on the scalp.

ii. Nature of injury - opinion reserved as the patient was hospitalized and the hospitalization and x-ray of the patient is referred to RMCH Ranchi.

iii. Age of injury is within 24 hours.

This injury report was prepared by him and bears his

signature which was marked Ext.3. This witness was cross-

examined and in cross-examination he stated that such injury

was not possible by fall.

17. P.W.-5 Dr. Chandra Bhusan Sahai in his examination-in-

chief stated that on 18th March, 1999 he was posted as Resident

Surgical Officer in R.M.C.H., Ranchi. The patient Ramdeo

Rajak was admitted vide registration no. E.R.N.S./173

on bed no.13 Department of Neurosurgery R.M.C.H.,

Cr. Appeal (S.J.) No.249 of 2011

Ranchi for the treatment of multiple injuries and head

injury. The patient was referred from District Hospital Giridih

vide no.687 dated 17th March, 1999. Details of injuries are :

i. Three inch long stitched wound on right side front parital region near mid line. ii. 2" x 2" abrasion and bruise on upper part of occipital region in mid line.

iii. Tenderness left side lateral and lower of chest.

C.T. scan of the brain and skull - Linear fracture of right

temporal bone extra dural haemotoua in right front temporal

region. None haemorrhagic contusion in right frontal tube.

Compression of right lateral ventricle. In x-ray the fracture

of right temporal and frontal bones were shown. The

nature of weapon was hard blunt weapon for the wound no.2

and 3. For wound no.1 opinion should be taken from the

hospital where the stitching was done. The injury no.2 was

simple; while injury nos.1 and 3 were grievous. He

prepared the injury report and same is in his signature

which was marked Ext.4. In cross-examination, this witness

says that such type of injury cannot be caused due to fall.

18. Prior to analyze the evidence on record it would relevant herein

to give the certain statutory provisions which read as under :

Section 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 for 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 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.

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Section 319. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 320. Grievous hurt.

The following kinds of hurt only are designated as "grievous":-- First.--Emasculation.

Secondly.--Permanent privation of the sight of either eye. Thirdly.--Permanent privation of the hearing of either ear. Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.

Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth. Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

Section 321. Voluntarily causing hurt.

Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

Section 322. Voluntarily causing grievous hurt. Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.

Section 323. Punishment for voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 325. Punishment for voluntarily causing grievous hurt. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 339. Wrongful restraint.

Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.

Section 341. Punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Section 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".

Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or

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knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.

Section 427. Mischief causing damage to the amount of fifty rupees.

Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

19. As per matrix of the prosecution case the occurrence took place

on damaging the potato and wheat crop of the informant by the

cattle of Kishun Turi. The witness P.W.-1 Jitan Rajak, who

is informant himself and also the eye-witness of the

occurrence, P.W.-2 Ramdev Rajak is also the eye-

witness and victim of the occurrence. Both these two

witnesses have stated that swine and goat of Kishun Turi have

damaged the potato and wheat crop of their agricultural field

and it also came in evidence that while informant Jitan Rajak

was driving them out from the agricultural field, the wife of

Kishun Turi also drived out the cattle from the agricultural field.

20. On behalf of the prosecution to attract the provision of Section

425 I.P.C. which is punishable under Section 427 I.P.C., there

is no evidence in regard to voluntarily causing the cattle

to remove the crop in the agricultural field of the

informant. The word "voluntarily" has been defined under

Section 39 of the I.P.C. which reads as under :

Section 39. ''Voluntarily''.

A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.

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Cr. Appeal (S.J.) No.249 of 2011

21. From the evidence adduced on behalf of the prosecution, there

is no evidence in regard to the intention on the part of

accused Kishun Turi causing the cattle to damage the

crop of the informant. There is no such evidence that

while leaving the cattle, the informant had knowledge

that this cattle would enter in the agricultural field of

the informant and would cause damage to the crop of

the informant. As such, there is no evidence in regard to

voluntarily causing damage to the crop of the informant by the

appellant/convict. Therefore, no offence under Section 425

which is punishable under Section 427 I.P.C. is made out

against him.

22. So far as the offence under Sections 323, 325 and 341 of the

I.P.C. is concerned, it came in evidence that all the

accused persons had surrounded the son of the

informant armed with weapon and began to assault him

obstructing him to proceed in any direction in which he

has right to proceed. The P.W.-1 and P.W.-2 have given

statements to this effect. So far as the offence under

Sections 323 and 325 of the I.P.C. are concerned, the P.W.-1

Jitan Rajak and P.W.-2 Ramdeo Rajak have stated that it was

Kishun Turi, who exhorted to all the accused to kill the

son of the informant. Though he himself assaulted with

sword on the head of son of informant, yet exhortation

given by him to other accused, who had assaulted with

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Cr. Appeal (S.J.) No.249 of 2011

lathi to the injured persons shows sharing of common

intention along with other accused in assaulting injured

with lathi and sword. Both these witnesses i.e., P.W.-1 and 2

have stated that Ramdeo Rajak while in injured condition was

taken to District Hospital, Giridih and from there his injuries

were examined and thereafter he was referred to R.M.C.H.,

Ranchi where he was admitted for one month. P.W.-3 Hari

Narayan Singh (the I.O.) in his statement stated that he had

recorded the statement of informant and also recorded the

statement of injured Ramdeo Rajak and other witnesses,

namely, Shankar Rajak and Gita Devi as well. He also inspected

the place of occurrence. During cross-examination no

contrary conclusion was drawn on behalf of the defence

in regard to the statement given by the witness P.W.-1

and P.W.-2 before the trial court and their statement

given to the I.O. under Section 161 Cr.P.C.

23. This ocular evidence is sought to be corroborated on

behalf of the prosecution by the medical evidence.

P.W.-4 Dr. Imran Sikoh has proved the injury report of

injured Ramdeo Rajak. He has shown the lacerated

wound of 3" x ¼" x skin and scalp muscle deep on the

scalp. The opinion in regard to nature of injury was reserved

since the patient was hospitalized and was also referred for x-

ray and hospitalization to R.M.C.H. Ranchi.

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24. P.W.-5 Dr. Chandra Bhusan Sahai has stated that on 18th

March, 1999, the patient Ramdeo Rajak was admitted

vide registration no. E.R.N.S./173 on bed no.13

Department of Neurosurgery R.M.C.H., Ranchi for

treatment of multiple injury and head injury. He also

opined that as per C.T. scan and x-ray there was linear

fracture of right temporal bone. There was also fracture

on the 8th ribs of the chest in view of x-ray report. The

injury no.2 was simple while injury nos.1 and 3 were

grievous. The injury no.1 was on the temporal region

while injury no.3 was on the chest of the injured.

25. In the injury report prepared by P.W.-4 Dr. Imran Sikoh in

Sadar Hospital, Giridih injury on the temporal region is

shown to be lacerated wound.

26. Learned Amicus Curiae has submitted that as per ocular

evidence, the head injury was caused by sword which is sharp

edged weapon and no lacerated wound can be caused. As such

there is contradiction in the ocular evidence and the medical

evidence. But this plea raised by the learned amicus curiae is

not found sustainable. As per ocular evidence, the assault with

sword was caused by the appellant Kishun Turi on the head

which is such body part on which if the assault given by any

sharp edged weapon, the lacerated wound is likely to be

caused.

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27. The Hon'ble Apex Court in the case of The State Of

Rajasthan Versus Gurbachan Singh & Others reported in

2022 Livelaw (SC) 1028 at paragraph 11 has held as under :

"11. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a coperpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention."

28. The Hon'ble Apex Court in the case of Krishnamurthy @

Gunodu And Others Versus State Of Karnataka reported in

2022 Livelaw (SC) 220 at paragraph 18 has held as under :

"18. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or pre- arranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence 11 normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co- participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the coassailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or

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main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other coparticipants. Further, the expression/term "criminal act" in Section 34 IPC refers to the physical act, which has been done by the co-

perpetrators/participants as distinct from the effect, result or consequence. In other words, expression "criminal act" referred to in Section 34 IPC is different from "offence". For example, if A and B strike Lathi at X, the criminal act is of striking lathis, whereas the offence committed may be of murder, culpable homicide or simple or grievous injuries. The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the IPC. Intention may be an ingredient of an offence and this is a personal matter. For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 IPC can be invoked for the said offence also [refer Afrahim Sheikh and Ors. (supra)]. Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory."

29. Some relevant text of Modi's Medical Jurisprudence and

Toxicology 22nd Edition reads as under :-

"The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor etc. and may show signs of contusion. However, while dealing with incised looking wound occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow etc."

30. Therefore keeping in view the seat of the injury which is on the

scalp of the injured and since none of the two doctors who

were the expert could give the opinion in regard to the weapon

by which the injury could have been caused, this cannot be

accepted keeping in view the above texts as mentioned in

regard to medical jurisprudence that such lacerated wound on

the scalp cannot be caused by the sword. Moreover, it is the

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settled law that ocular evidence would prevail over

medical evidence unless and until the medical evidence

totally over rules the ocular evidence.

31. The Hon'ble Apex in the case of Bhajan Singh alias

Harbhajan Singh and Ors v. State of Haryana reported in

AIR 2011 SC 2552 at paragraph 23 has held as under :

"23.Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

32. Therefore the ocular evidence is also corroborated with medical

evidence in the case in hand. So far as the plea of non-

recovery of the weapon raised by the learned amicus

curiae is concerned, the same cannot be said to be fatal

to the prosecution case. The prosecution case is based

on direct evidence. The presence at the place of occurrence

of the injured victim himself and the eye-witness (the father of

the victim) cannot be doubted in view of the evidence adduced

on behalf of the prosecution.

33. The Hon'ble Apex Court in the case of Md. Jamiluddin Nasir

v. State of West Bengal reported in AIR 2014 SC 2587 at

paragraph 48 has held as under :

"48.As far as the contention made on behalf of the Appellant that non-production of the weapon used in the attack is fatal to the case of the prosecution is concerned, the reliance placed upon by the learned Additional Solicitor General to the decision reported in Ram Singh v. State of Rajasthan (2012) 12 SCC 339 would meet the said contention. In paragraphs 8 and 10, this Court has also held that the non-production of the weapon used in the

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attack is neither fatal to the prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is also rejected."

34. In view of the above discussions and careful analysis of

the evidence on record, the offence under Sections 323,

325 and 341 of the I.P.C. is made out against the

appellant/convict.

35. So far as the offence under Section 307 I.P.C. is concerned, the

blow given with sword by the appellant Kishun Turi on

the head of the injured Ramdeo Rajak shows his

intention and knowledge that giving blow with the

sword on the vital part of the body i.e., head would

cause death of the injured. Therefore, the offence under

Section 307 of the I.P.C. is made out against the

appellant Kishun Turi.

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

Kashiram & Ors. reported in (2009) 4 SCC 26 at paragraphs

12 and 13 has held as under :

"12. To justify a conviction under this section, 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 an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

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13. 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. 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. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

37. After analysis of the evidence on record, this Court is of the

considered view that the prosecution has been successful to

prove the charge under Sections 307/323/341/325 read with 34

of the I.P.C. against the appellant. The appellant is acquitted for

the charge under Section 427 of the I.P.C. but the conviction of

the appellant under Sections 307/323/341/325 read with 34 of

the I.P.C. is, hereby, affirmed. Accordingly, this criminal appeal

is partly allowed.

38. The appellant is on bail his bail bonds are cancelled and he is

directed to surrender before the learned court below. The

learned court below is directed to issue non-bailable warrant

against him in order to ensure his presence and to send him jail

to serve out the sentence inflicted for the charge under Sections

307/323/341/325 read with 34 of the I.P.C.