Jharkhand High Court
Raj Kumar Agarwal @ Raj Kumar Agarwal Son ... vs The State Of Jharkhand ... ... Opposite ... on 3 May, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 99 of 2019
1.Raj Kumar Agarwal @ Raj Kumar Agarwal son of Vishun Lal
Agrawal (Aged 57 years)
2. Kishore Kumar Agarwal @ Kishore Kumar @ Kishore Kumar
Agarwal son of Shambhu Prasad Agrawal, aged about 35 years
3. Rupesh Kumar Agarwal @ Rupesh Kumar @ Rupesh Kumar
Agarwal son of Shambhu Prasad Agrawal, aged about 28 years, all
residents of Budh Bazar, Chandwa, P.O. and P.S. Chandwa, District-
Latehar ... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite party
With
Cr. Revision No. 160 of 2019
1.Praveen Kumar Agrawal, aged 45 years
2. Vikash Kumar Agrawal aged about 42 years
3. Manoj Kumar Agrawal, Aged about 47 years, all sons of Late
Vishnu Lal Agrawal
4.Kunal Kumar Agrawal, aged about 35 years, son of Shambhu
Prasad Agrawal,
All residents of Budh Bazar, Chandwa, P.O. and
P.S. Chandwa, District-Latehar ... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite party
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Nilesh Kumar, Advocate
: Ms. Sonal Sodhani, Advocate
For the Informant : Mr. Chandan Kumar, Advocate
For the State : Mr. Subodh Kumar Dubey, A.P.P.
---
05/03.05.2024 Heard the learned counsel for the parties.
2. These two revision applications have been filed against the
judgment and order dated 15th December 2018 passed by the learned
Additional Sessions Judge-II, Latehar in Criminal Appeal No. 27/2017
by which the learned Appellate Court has dismissed the appeal
preferred by the petitioners, however, the conviction under section 504
IPC has been set aside.
3. The appellants were convicted for the offences under Sections
341/34, 323/34, 448/34 and 504/34 of the Indian Penal Code by the
learned Trial Court and they were sentenced to go simple
imprisonment for one month under each of the sections and it was
observed that all the sentences shall run concurrently.
4. The learned counsel for the petitioners has submitted that
though there are concurrent findings in connection with conviction of
the petitioners for the offence under sections 341/323/448 of the
Indian Penal Code and they have been convicted with the aid of
section 34 of IPC, but so far as injury is concerned, the injured namely
Mithilesh Kumar (P.W. 2- the informant of the case) suffered simple
injuries and there were seven accused in this case. The learned counsel
has submitted that no charge was framed by referring to section 34 of
Indian Penal Code, but the learned Trial Court found the basic element
of section 34 of the Indian Penal Code present in the occurrence and
convicted all the petitioners by referring to section 34 IPC. He has
also submitted that there is land dispute between the parties and there
is also a counter case arising out of the same incident which is still
pending and as per the counter case, the present petitioners suffered
more injuries than that of the informant. The learned counsel submits
that there being case and counter case between the parties on account
of admitted land dispute, it was a fit case where the learned court
ought to have exercise the power to grant the benefit of Probation of
Offenders Act. The learned counsel has further submitted that the
impugned judgment by which the conviction has been made by
referring to section 34 of Indian Penal Code without there being any
charge under the said section entitles the petitioners at least to the
benefit of Probation of Offenders Act.
5. Learned counsel appearing on behalf of the informant has
opposed the prayer and has submitted that there are concurrent
findings recorded by both the Courts after scrutinizing the materials
on record and merely because no charge was framed by referring to
Section 34 of Indian Penal Code, the same cannot be a ground to
interfere with the impugned judgments. He submits that the accused
were aware of the evidences being led before the learned Court and
non-framing of charge under section 34 of IPC is not fatal to the
prosecution case. The learned counsel has also submitted that there is
no scope for re-appreciation of materials on record and coming to a
different finding and the learned court has rightly refused to grant the
benefit of Probation of Offenders Act to the petitioners.
6. At this, the learned counsel for the petitioners has referred to
the judgment passed by the Hon'ble Supreme Court reported in (1988)
4 SCC 551 and has referred to paragraph 8 thereof to submit that in an
appropriate case, the Hon'ble Supreme Court has upheld the exercise
of the power by the High Court by referring to Section 360 of the Cr.
P.C. even when the initial charge was under section 307 IPC and the
conviction was ultimately upheld under section 325/149 of the Indian
Penal Code. The learned counsel has also relied upon the judgment
passed by the Hon'ble Supreme Court reported in (2006) 9 SCC 757
and has submitted that in an offence under section 323 IPC the
Hon'ble Supreme Court has exercised the power under Section 4 of
the Probation of Offenders Act.
7. Learned counsel for the petitioners has also submitted that
otherwise also so far as sentence is concerned, the petitioners have
faced the trial since 2011 and about 13 years have passed and in such
circumstances this Court may exercise power to impose punishment of
fine in all the sections under which the petitioners have been convicted
as there is a provision for imposition of fine or imprisonment. Learned
counsel has also submitted that any amount by way of victim
compensation may also be fixed, but considering the nature of injury,
the petitioners may not be sent to jail.
8. After hearing the learned counsel for the parties and
considering the facts and circumstances of this case this court finds
that the prosecution case is based on a written report of the informant
(an advocate) dated 22.03.2011 that at 10.00 A.M. in the morning on
22.03.2011, all the petitioners in furtherance of common intention
lashed with lathi and other arms entered into house of the informant
and started assaulting him. It was alleged that Raj Kumar Agarwal
was armed with rod and assaulted the informant and Manoj Kumar
attacked the informant with knife but the informant could save
himself. It was also alleged that Kunal Agarwal snatched Rs. 15,000/-
from the pocket of the informant and in the meantime the other
accused also assaulted the informant with lathi and danda due to
which the informant got serious injuries on his forehead and hand and
his shirt was also torn. The accused also assaulted his brother Amresh
Kumar Dhiraj who also got injury on his forehead and the accused
also broke the articles- tables and chairs kept in the house.
9. The F.I.R. was lodged and the case was numbered as Chandwa
P.S. Case No. 24 of 2011 registered under sections 147/ 148/ 149/
341/323/307/427/452/379 and 504 of IPC, however the charge sheet
was submitted u/s 341/323/448 and 504 IPC and cognizance was
taken under the aforesaid sections and the accused faced the trial for
offence under the aforesaid sections.
10. Altogether 8 witnesses were examined and the informant of the
case Mithilesh Kumar was examined as P.W. 2 and the doctor who
had examined Mithilesh Kumar has been examined as P.W. 3. The
Investigating Officer of the case has been examined as P.W. 7. P.W-5
and P.W-6 turned hostile. P.W-1 is an outsider and a friend of the
informant who had reached the place of occurrence after the incident
and had settled the quarrel as is recorded in the Appellate Court's
judgement. Following documents were exhibited.
Exhibit 1 was the written application
Exhibit 1/1 is the endorsement on the Fardbeyan
Exhibit 2 is the injury report
Exhibit-3 is the formal F.I.R.
11. So far as the injury report is concerned, the following injuries
were found on the body of the informant.
"1. Swelling and haematoma over right upper eyelid
extended to mid forehead 2"x2".
2. Abrasion over Rt. Palm 1/2"x1/2"
3. Epitomize
4. Conjunctival hemorrhage rt. Eye with blurring of
vision
5. Chest pain
age- less than six hours. Causing by hard and
blunt substance. This injury report is in his pen and
signature, marked Ext. 2".
12. There is no other injury report, however some of the witnesses
have stated they did not see the doctor although they sustained injury
as their injury was not very serious.
13. During the course of evidence, it has come to light that there is
land dispute between the parties and a Title Suit is going on. It has
also come on record that arising out of the same incident a counter
case has also been filed which was numbered as Chandwa P.S. Case
No. 33 of 2011. During the course of hearing, it transpired that the
said counter case is still pending before the learned Court. This Court
finds that in Chandwa P.S. Case No. 33 of 2011, final report was
submitted against which a protest petition was filed which was
numbered as Complaint Case No. 20 of 2013 and cognizance was
taken under Section 147/341/323/325 and 504 of the Indian Penal
Code. This aspect of the matter was brought on record from the side of
the accused in the present case by virtue of Exhibit-A.
14. The learned Trial Court recorded finding after considering the
materials on record that out of eight witnesses P.W. 5 and 6 have
turned hostile but they were not examined by the prosecution. Out of
remaining 6 witnesses the informant was P.W. 2 and P.W. 8 was his
brother namely Amaresh Kumar Dhiraj who was also the alleged
victim. The learned Trial Court recorded that the place, time and
manner of occurrence as alleged in the F.I.R. (Ext. 1) was duly proved
and P.W. 2 and P.W. 8 had deposed that at the time of occurrence the
accused were holding lathi, danda and entered into the house of P.W.
2 and P.W. 8 and assaulted them. The learned Trial Court also
recorded that the informant was assaulted on his forehead and hand
and his brother was assaulted on his forehead. It has also been found
by the learned Trial Court that P.W. 2 the doctor who had examined
the informant and found injuries as mentioned above. The Trial Court
recorded that the assault mentioned in the F.I.R. was corroborated by
the evidence of the doctor P.W. 3. The learned Court also recorded
that P.W. 1 and P.W. 4 namely Prabhat Oraon and Balram Oraon
respectively were the eye witness to the occurrence and upon seeing
the occurrence they had tried to intervene to resolve the dispute. P.W.
1 had deposed that he had seen the occurrence while he was going to
the market and P.W. 4 deposed that he was at his house which is
around 100-foot step away from the house of the informant and upon
hearing alarm, he reached the house of the informant and saw the
occurrence. The learned Trial Court recorded that both P.W. 1 and
P.W. 4 were the eye witnesses and had supported the prosecution case
to the extent that the accused had entered into the house of the
informant and had assaulted the informant and his brother. These
witnesses did not depose anything with regard to snatching of money
and P.W. 4 had specifically stated that the informant who was his
Advocate did not mention anything to him about snatching of money
and both these witnesses had deposed that they could identify the
accused persons. The learned Trial Court concluded that the accused
persons had entered into the house of the informant and assaulted him
with lathi and danda and the allegation was supported by eye
witnesses and during cross examination the accused could not elicited
material contradiction to create a doubt in the prosecution case. The
learned Trial Court also considered the defence evidence and was of
the view that the land dispute between the parties has come on record
and merely because there was a counter case out of the same incident
no benefit could be given to the accused persons on that count. The
learned Trial Court ultimately recorded that the prosecution has been
able to prove the case against the accused persons.
15. Further, the learned Trial Court observed that although no
charge was framed under section 34 of Indian Penal Code but during
the course of evidence the prosecution has been able to prove that
there was common intention of all the accused persons and all the
accused persons had entered into the house of the informant with
common intention and assaulted the informant and his brother. The
learned Trial Court also recorded that although under section 34 IPC
no specific charge was framed but the ingredients of Section 34 of
Indian Penal Code was present and was duly established by the
prosecution. The learned Trial Court also recorded that it is open to
the Court to convict a person by referring to Section 34 of the Indian
Penal Code in spite of absence of any charge under the said section
and after having said so, the learned Trial Court convicted all the
petitioners under section 341/323/448 and 504 IPC read with section
34 IPC. The learned Court ultimately imposed the punishment of one-
month simple imprisonment under each section for each of the
petitioners and the sentence was directed to run concurrently.
16. The learned Appellate Court also scrutinized the materials on
record and recorded its findings in paragraph 12 which is quoted as
under: -
"12. After scrutiny of the evidence on the record and
perusing the judgement and order of the conviction of
learned A.C.J.M., Latehar and submissions raised in
Memo of appeal by the learned lawyer for the appellants
and hearing the parties, I find that the informant ie. PW2
and PW8 have fully supported the case of the prosecution
in their evidence during trial. From the evidence, it is clear
that informant received injury on his face, back and eye.
This fact has also got supported by Medical evidence i.e.
Ext.2 and the same has been proved by doctor in his
evidence as PW3. From the evidence on record, it is also
clear that the accused persons caused the incident by
entering into the house in which Raj Kumar Agrawal,
Manoj, Praveen, Vikas, Kunal, Kishore and Rupesh lashed
with Harwe-Hathiar (lathi arms) were involved. Though
from the cross-examination of the informant, it is clear
that the reason behind the incident is the land dispute
between the parties yet there is nothing in the cross-
examination to disbelieve the evidence of the informant
regarding incident of assault to him by accused persons by
entering into the house. From the evidence of PW2 and
PW8, it is clear that assault was also caused to the brother
of the informant but injury caused was not of serious
nature. So, he did not get examined by the doctor. From
Ext. A, B and C, C/1, C/2, it is also clear that for the same
incident case was also filed by the appellants against the
informant and others. From para-5 of cross-examination
of PW-8, it is clear that the complaint case of appellants
has been stayed by the Hon'ble High Court, Ranchi. But
from the scrutiny of the evidence on the record, there
remains no doubt regarding the fact that the incident of
assault was caused by accused persons by entering into the
house of the informant.
This fact has also been supported by PW1 in his
evidence. there is nothing in the cross-examination of this
witness that he is friend of informant. So, I do not find any
force in the contention of the learned defence lawyer that
he is interested witness being friend of formant rather this
witness is an independent witness and at the time of
occurrence, this witness reached on the P.O. and settled the
quarrel. This witness has clearly denied that he did not see
the occurrence. The evidence of this witness inspired
confidence upon the court regarding the facts that incident
of assault was caused by the accused persons by entering
into the house lashed with rod, knife etc.
PW4 has also supported the case of the prosecution
but from his evidence, it is clear that his title suit is going
on in the civil court in which informant of this case is his
advocate. So, it appears that he is an interested witness. On
the other hand, PW5 and PW6 have not supported the case
of the prosecution.
From the above discussions, it is clear that there is
sufficient evidence on the judicial record (even if no
reliance is placed the evidence of PW4, PW5 and PW6) to
come to the conclusion that incident of assault was caused
altogether by accused persons by entering into the house of
the informant. The evidence of PW1, PW2 and PW8 are
consistent, cogent and reliable except some minor
contradictions which is possible as human being. I do not
find force in the submission of learned counsel for the
appellants that there is vital contradictions in the statement
of the witnesses. I also do not find force in the submission
of the learned counsel that why informant himself alone
went to the police station for complaining the incident
because the F.I.R. i.e. written report bears the signature of
informant as well as his brother. The fact that I.O. has not
seized any article and only for this reason, the whole
prosecution story cannot be said to be false. It is an
admitted fact that there is land dispute in between the
parties but only for this reason, it cannot be said that the
incident is not true as "enmity cuts both the sides" In the
present case, oral evidence, has also been supported by
medical evidence i.e. by PW3. 1.O. has also proved the
place and manner of occurrence in which incident was
caused.
No charge U/s 379 has been framed in this case, so,
there appears no need to consider the evidence on this
point.
From scrutiny of the evidence on the record, there
remains no doubt regarding the fact that prosecution has
been able to substantiate the charges of sections 323, 341,
448 IPC but there is no evidence on the record to
substantiate the charge of section 504 IPC against the
convicts persons/appellants. Hence, the conviction U/s 504
IPC is set aside."
17. The Appellate Court clearly recorded that there was sufficient
evidence on the judicial record even if no reliance was placed on the
evidence of P.W. 4, 5 and 6 to come to the conclusion that the incident
of assault was caused altogether by accused persons by entering into
the house of the informant and that the evidence of P.W. 1, 2 and 8
were consistent and reliable with minor contradictions. The learned
Appellate Court also recorded that Investigating Officer did not cease
any article but that itself cannot lead to disbelieve the prosecution
story. It was an admitted fact that there is land dispute between the
parties and oral evidence was also supported by the medical evidence
and since no charge was framed under section 379 IPC, no finding
with regard to stealing of Rs. 15,000/- from the pocket of the
informant was recorded.
The learned Appellate Court recorded that there was no doubt
regarding the fact that the prosecution was able to substantiate the
charges of section 323/341/448 of IPC but there was no evidence on
record to substantiate the charge of section 504 IPC against the
petitioners and hence the conviction under section 504 IPC was set
aside.
18. This court finds that the learned Appellate Court has not
recorded any finding in the judgement with regard to common
intention under section 34 of IPC and has not at all considered the fact
that the accused were convicted by the learned Trial Court also by
referring to section 34 of IPC although no charge was framed under
section 34 of IPC. However, while considering the sentence, the
learned Appellate Court refused to give benefit of Probation of
Offenders Act to the accused by observing that the incident had taken
place in a pre-planned manner although the learned Appellate Court
had convicted all the accused under section 323/341/448 of IPC
without referring or resorting to section 34 IPC and acquitted all the
accused under section 504 of IPC.
19. This Court finds that P.W. 1 claims to be the eye witness to the
occurrence who had supported the prosecution case. P.W. 2 is the
informant of the case who is also the victim. He has made specific
allegation against Raj Kumar Agarwal by stating that Raj Kumar
Agarwal had hit him on his back and has stated that he was hurt in his
eyes and face. He had also made specific allegation against Manoj
Kumar by stating that he was holding a knife. He has also stated that
Manoj Kumar tried to hit him by knife but did not succeed. P.W. 3 is
the Doctor who had examined the informant P.W. 2 and had found the
injuries as mentioned above. There is no other injury report of any
other victim. P.W. 4 also claims to be eye witness and he has also
supported the case but P.W. 2 (informant) was his advocate in a case.
So far as P.W. 5 and 6 are concerned, they were the eye witnesses to
the occurrence but they were declared hostile as they did not support
the prosecution case. P.W. 7 was the Investigating Officer of the case
who has described the place of occurrence and has supported the
prosecution case. So far as PW 8 is concerned, he is also one of the
victims and he supported the prosecution case. The learned Trial Court
has considered the evidences and has convicted all the accused
persons by referring to section 34 of the Indian Penal Code although
neither any charge was framed under section 34 IPC nor any question
or material was put to the accused by referring to any common
intention for the alleged occurrence under section 313 of Cr.P.C.
However, the Appellate Court has convicted the accused under section
323/341/448 of IPC without referring or resorting to section 34 IPC
and acquitted all the accused under section 504 of IPC. This Court is
of the considered view that the learned Appellate Court has rightly not
referred to section 34 of IPC while dismissing the appeal as neither
any charge was framed under section 34 IPC nor any question was put
to the accused with regard to common intention under section 34 of
IPC.
20. The Appellate Court has also considered the fact that though
P.W. 4 had supported the case of the prosecution but from his
evidence it was clear that title suit is going on in the Civil Court in
which informant of the case was his Advocate and therefore the
learned Appellate Court recorded that P.W. 4 is an interested witness
and on the other hand the P.W. 5 and P.W. 6 who were the other eye
witnesses had not supported the prosecution case. The learned
Appellate Court upon scrutiny of the evidences has recorded that the
informant received injury on face, back and eye which was supported
by medical evidence which was proved by the doctor in his evidence
as P.W. 3 and recorded that the accused persons caused incident by
entering into the house of the informant. The Appellate Court also
recorded that upon cross examination of the informant it was clear that
the reason behind the incident was the land dispute and from the
evidence of P.W. 2 and P.W. 8 it was clear that the assault was caused
to the brother of the informant but the injury caused was not of serious
nature so he did not get himself examined by the doctor. The
Appellate Court recorded that from the scrutiny of the evidences on
record there remained no doubt regarding the fact that the incident of
assault was caused by the accused persons by entering into the house
of the informant. This Court finds that the learned Appellate Court
was of the view that the prosecution was able to substantiate the
charge under Sections 323/341 and 448 of IPC but has acquitted the
petitioners for offence under Section 504 IPC. This Court further finds
that the learned Appellate Court has not referred to Section 34 IPC
which was taken into account by the learned Trial Court to convict all
the petitioners.
21. This Court further finds that there is specific allegation against
Raj Kumar Agarwal regarding assaulting the informant and so far as
other allegations are concerned, they are general and omnibus in
nature. So far as Manoj Kumar Agarwal is concerned, the allegation
was that he was armed with knife but there is no injury caused by
knife and the knife was also not recovered by the Investigating
Officer. There was also an allegation that Kunal Agarwal had snatched
Rs. 15000/- from the pocket of the informant but no charge was
framed under section 379 of IPC and therefore neither the Appellate
Court nor the Trial Court has considered the evidences in connection
with section 379 IPC.
22. However, considering the totality of facts and circumstances,
the conviction of the petitioners under section 323/341/448 of IPC as
upheld by the learned Appellate Court does not call for any
interference by this court in revisional jurisdiction as there is no
illegality or perversity or material irregularity with regard to the
conviction under the aforesaid sections.
23. So far as the sentence is concerned it has to be taken into
account that the incident is of the year 2011 and about 13 years have
already elapsed and it is also required to be considered that the
Appellate Court has not referred to section 34 of IPC to sustain the
conviction under section 323/341/448 of IPC.
24. This Court is of the view that under the aforesaid circumstances
all the petitioners except Raj Kumar Agarwal deserve the benefit of
Probation of Offenders Act, 1958 and accordingly, except Raj Kumar
Agarwal, each of them are directed to be released under Section 4 of
the Probation of the Offenders Act on furnishing bond assuring the
good conduct for a period of six months from the date of
communication of this judgement. The sentences of all the petitioners
except Raj Kumar Agarwal is accordingly modified.
25. So far as Raj Kumar Agarwal is concerned, he is 61 years of
age as on today and has faced the criminal case since the year 2011.
This Court is of the view that sentence of Raj Kumar Agarwal is
required to be modified to some extent. Accordingly, the sentence of
Raj Kumar Agarwal is reduced to a period of one week with a fine
amount of Rs. 1,000/- u/s 323 IPC, Rs.500/- u/s 341 and Rs. 1,000/-
under section 448 IPC and also subject to payment of victim
compensation by Raj Kumar Agarwal to the informant of the case
amounting to Rs. 15,000/-.
26. The fine amount and victim compensation should be deposited
by the petitioner Raj Kumar Agarwal within a period of two months
from today and the victim compensation amount be released to the
informant upon due identification. In case Raj Kumar Agarwal does
not deposit the fine amount and the victim compensation, he shall
undergo the punishment as awarded by the learned Appellate Court.
27. The sentences for each of the petitioners are accordingly
modified.
28. Both criminal revisions are disposed of without interfering with
the judgment of conviction under section 323/341/448 of IPC and with
modification of sentences of the petitioners in the aforesaid manner.
29. The learned Trial Court is directed to ensure compliance of this
judgement.
30. Pending I.A., if any, is closed.
31. Let this judgment be communicated to the court concerned
through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit
