Jharkhand High Court
Shrawan Paswan vs The State Of Jharkhand on 8 February, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 594 of 2012
[Against the judgment of conviction and order of sentence dated 24.04.2012
passed by learned Additional Sessions Judge-II, Garhwa in Sessions Trial No.94
of 2004]
1. Shrawan Paswan
2. Vijay Yadav
3. Lakhan Sao .... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant
: Mr. Pravin Kumar Pandey, Advocate
For the State: Ms. Priya Shrestha, Special P.P.
-----
PRESENT : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
1. The judgment of conviction and sentence under Sections 323, 324, 325/34
of the Indian Penal Code is under challenge in this appeal.
2. As per the prosecution case, on 12.03.2003 in the evening at 8.00 p.m.
informant Ashok Sao along with his brother Rinku Sao were looking after the
agricultural field, when the appellants variously armed with Lathi came and
conjointly assaulted both of them. On alarm being raised, their father came to his
rescue and he was also assaulted. The genesis of the offence is stated that the
agricultural field of the informant is adjacent to that of Shrawan Paswan and in the
event of damage to crop, fight took place. Meral P.S. Case No.17/2003 was
registered under Sections 341, 323, 504/34 of the Indian Penal Code was
registered. The police on investigation submitted charge sheet under Sections 341,
323, 504, 307, 324, 325/34 of the Indian Penal Code. The accused persons were
conjointly put on trial.
3. Altogether seven witnesses were examined on behalf of prosecution
including the Doctor, who proved the injury report. The defence is of innocence,
but no specific defence has been pleaded.
4. The learned trial Court held that the charge under Section 307 of the IPC
was not proved and convicted under Sections 323, 324, 325/34 of the Indian Penal
Code.
5. The judgment of conviction and sentence has been assailed on the ground
that I.O. has not been examined and therefore, the place of occurrence has not
been established, the blood stained cloth was not seized. The oral evidence is not
corroborated by the medical evidence. It is further submitted that there was no
mark of identification in the injury report. The Doctor had not conducted X-Ray
and the nature of injury has not been stated in the cross-examination.
It is argued that in the FIR, the date of occurrence has been stated to be
March, 2003 whereas the informant (P.W. 6) states in para 1 that the said
incidence took place in August. Further, in the FIR, weapon of offence has been
stated to be Lathi whereas in para 3 of the examination-in-chief, he has stated that
the weapon of offence to be Farsa. With regard to nature of injury, the Doctor
(P.W. 7) has deposed in para 1 that it was grievous in nature however, it has been
stated that he has not applied magnifying glass to give opinion about the surface
of injury.
6. Learned A.P.P. has defended the judgment of conviction and sentence.
7. There are certain consecrated principles of evidence which guide a Court in
appreciation of evidence. Some of the fundamental cannons of it are
exaggerations per say do not render the evidence fragile, but it can be one of the
factors to test the veracity of the prosecution version. Discrepancy has to be
distinguished from contradiction. It has been held in Abdul Sayeed Vs State of
MP, SC 2010(4) East Cr. C 150 that where a witness to the occurrence has
himself been injured in the incident, the testimony of such a witness is generally
considered to be very reliable as he is a witness that comes with a built in
guarantee of his presence at the scene of the crime and is unlikely to spare the
actual assailants in order to falsely implicate someone. Convincing evidence is
required to discredit an injured witness.
8. In the present case, the incidence took place on 12.03.2003 and the FIR is
lodged without any delay on the next date on 13.03.2003. As per the testimony of
the Doctor (PW-7), injured Ashok was examined on the very day of incidence on
12.03.2003 and noted sharp cut injury 3''x1/4"x1/4" which was grievous in nature
which can be caused by Farsa. Other injuries were also found on his person which
were simple in nature. Others who were injured viz Lakhan Sao and Rinku Sao
were also examined on the same day. Lakhan Sao was also found to have
sustained fracture of right upper arm which was grievous in nature caused by hard
and blunt substance. Rinku Sao sustained simple injury. Promptness in institution
of the FIR and examination of the injured lends credence to the prosecution case.
9. All the injured witnesses have been examined and they have given
consistent account of the incidence in which the Appellants conjointly assaulted
them by deadly weapon resulting in serious injuries.
10. It is true that in the FIR, the weapon of offence has been stated to be lathi,
whereas in the testimony it has been stated that Farsa was also used. From the
perusal of the evidence it is apparent that the attention of the informant has not
been drawn to the FIR, afford him an opportunity to explain the inconsistency
appearing in the deposition vis-à-vis the FIR. Unless and until attention is drawn
of a witness to his earlier statement contradiction cannot be taken in terms of
Section 145 of the Evidence Act. Furthermore, from the sequence of events it is
apparent that the injured was immediately taken for treatment to the doctor, and
one of the injured thereafter lodged the FIR.
11. The evidence is to be read in its totality and one inaccurate mentioning of
the date of occurrence will not completely dislodge the prosecution case.
12. Prosecution has proved its case beyond the shadow of all reasonable and
probable doubt, the judgment of conviction is accordingly affirmed.
13. Considering the genesis of offence, the absence of any criminal antecedents
of the appellants, instead of sentencing the appellants to any sentence for the
present, the appellants are directed to be released under Section 4 of the Probation
of offenders Act, on executing probation bond of Rs.50,000/- with two sureties of
like amount for a period of one year to satisfaction of the learned Court below.
With this modification in sentence, the appeal is dismissed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated, 8th February, 2024
NAFR/Anit
