Jharkhand High Court
Lobind Puri @ Lobin Bharti vs The State Of Jharkhand on 13 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 735 of 2023
Lobind Puri @ Lobin Bharti, aged about 40 years, son of Khiyali
Puri, resident of village Balia Chowki, Surangi, P.O. Tapoban, P.S.
Kunda, Sub-Division and District-Deoghar
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Suraj Singh, Advocate
: Mr. Akshay Kumar, Advocate
For the State : Mr. V.S. Sahay, A.P.P.
Order No.04/ Dated 13th September, 2023
I.A. No. 7673 of 2023 has been filed under Section 389(1) of the
Cr. P.C. seeking suspension of sentence of the appellant in connection
with judgment and order of sentence dated 25.04.2023 passed in
Sessions Trial 182 of 2017 with Sessions Trial 271 of 2018 with
Sessions Trial 36 of 2018 by the court of learned Sessions Judge,
Deoghar whereby and whereunder the appellant has been convicted for
the offence punishable under Section 148 and 302/34 of the I.P.C and has
been sentenced to undergo R.I. for 3 years under Section 148 IPC and
imprisonment for life with a fine of Rs.10,000/- and a default sentence
under Section 302/34 of the IPC.
2. Learned counsel for the appellant has submitted that it is a case
where the prosecution has miserably failed to prove the charge beyond
all shadow of reasonable doubts. Such submission has been made, based
upon the fact that the informant P.W.9 has become hostile who happens
to be the brother of the deceased.
3. Another ground has been taken that description of the injury, as
has been disclosed by the prosecution witness, has not been corroborated
from the medical evidence, since, the witnesses have disclosed the
injuries, which have been inflicted upon the deceased on three part of his
body i.e., head, chest and abdomen, but, as would appear from the
testimony of the Doctor P.W.6 that he has found two injuries in the
medical examination. Hence, the ocular evidence has not been
corroborated from the medical evidence and hence it cannot be said that
prosecution has been able to prove the charge beyond all shadow of
reasonable doubt.
4. The learned counsel for the appellant, in that view of the matter,
has submitted that it is a case where sentence may be suspended.
5. While on the other hand, learned A.P.P. appearing for the
respondent State has vehemently opposed the prayer for suspension of
sentence. It has been contended that the case related to land dispute.
Although the informant P.W.9, brother of the deceased, has turned
hostile but the testimony of P.W.1 and P.W.2 cannot be discarded,
amongst whom P.W.1 also happens to be the brother of the deceased and
P.W.2 is the independent witness from the locality. Both P.W.1 and P.W.2
have supported the prosecution version. It has also been contended that
P.W.1 has also sustained injury and has corroborated the prosecution
version by disclosing the name of three persons namely Rinku Puri,
Basant Puri and Lobin Puri (appellant herein).
6. Learned State counsel has further submitted that even if there is
any contradiction in the medical evidence, the same cannot wipe out the
testimony of the eye witnesses and hence it is not correct on the part of
the appellant to submit that prosecution has failed to prove the charge
beyond all reasonable doubts. Therefore, it is not a fit case where
sentence is to be suspended.
7. We have heard learned counsel for the parties, gone through the
finding recorded by the learned Trial Court in the impugned judgment as
also the lower court record, which has been called for vide order dated
02.08.2023.
8. It is evident from the testimony of P.W.1, who in specific word
has corroborated the prosecution version by disclosing the name of the
appellant, who has assaulted the deceased by a knife along with accused
Rinku Puri and Basant Puri. The deceased sustained serious injuries over
his head, chest and abdomen and succumbed to the said injuries. P.W.2
has also corroborated the prosecution version. However, P.W.9,
informant has turned hostile. The doctor has been examined as P.W.6,
who has found both external and internal injuries as under:
i. "External Findings: There were multiple reddish abrasions of
various shapes and sizes on the various parts of body (like both
feet right leg, both elbows). One lacerated would on the right
side of forehead (size 3 cm x 1 cm x Deep upto bone). One
sharp cut would on the left chest, infero-lateral to the left
nipple with size 2.5 cm x ½ cm x cavity deep). There was dry
and soft blood clot in and around the wounds.
ii. Internal Findings: Head-Skull and meninges- intact, Brain
Pale. Neck NAD. Chest- there was subcutaneous haematoma
underneath around the sharp cut wound externally on the left
chest. The left pleural cavity was full of blood and blood clot
with that external sharp cut wound (on the left chest) was
extended deep into the left chamber of heart passing through
left anterior chest wall, pleura (left), left lungs and left
ventricle including pericardium. The size of the punctured
wound on the outer surface of heart was about 1.5 cm in length
x 1/3 cm x cavity deep. Both sides of heat were empty. Right
lung intact. Abdomen-stomach was empty. Small intestine
contained gas, Liver, Spleen, Kidneys- Pale and Intact.
iii. Cause of death- Shock and hemorrhage caused by sharp
cutting object leading to Cardio respiratory arrest related to
above mentioned fatal chest injury, ante-mortem in nature."
9. The question has been raised on behalf of the appellant that since
the informant has been declared hostile, therefore, the entire prosecution
version is said to be vitiated.
10. However, we are not prima facie in agreement with the said
submission, otherwise, the question will be raised that what will happen
to the testimony of P.W.1 and P.W.2. The presence at the place of
occurrence is not in dispute, since, the P.W.1 has also sustained injury in
course of the fight. There is no question to that effect also, as would
appear from cross examination of P.W.1 on the question of his presence
at the place of occurrence.
11. So far as contradiction in the medical evidence is concerned, we,
after going through the injuries as per the medical report are of the view
that injuries have been found on the right side of the forehead. Injury
was also found on the left chest, which was extended deep into the left
chamber of heart passing through left anterior chest wall, pleura (left),
left lungs and left ventricle including pericardium. Therefore, the
medical evidence is also in support of the prosecution.
12. This Court, therefore, is of the prima facie view that it is not a fit
case where sentence is to be suspended.
13. Accordingly, the prayer for suspension of sentence made through
I.A. No. 7673 of 2023 is rejected.
14. However, any observation made herein above will not prejudice
the case of the parties, since the appeal is pending for its consideration
under the heading for hearing.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
A.Mohanty
