Jharkhand High Court
Pawan Kumar Sah S/O Sonalal Sah Resident ... vs The State Of Jharkhand on 14 November, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 459 of 2005
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Pawan Kumar Sah S/O Sonalal Sah Resident of Village-
Jabardaha, PS- Hiranpur, District- Pakur ......Appellant
Versus
1. The State of Jharkhand
2. Shiv Narayan Yadav S/o Late Mahavir Yadav Resident of Vill-
Jabardaha, PS-Hiranpur, District- Pakur .......Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. A.K. Kashyap, Senior Advocate
: Mr. Indu Shekhar Gupta, Advocate
For the State : Mr. Navin Kumar Ganjhu, A. P.P
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ORAL JUDGEMENT IN COURT
11/14.11.2024 It appears from the office note that notice has been
received by the son of the informant. It also appears from the
report of the Process Server that notice has been served upon the
son of the respondent no. 2 on 20.10.2024. However, when the
case is called out, none appears on behalf of the Respondent no. 2.
However this case is being heard and disposed of today.
2. This Criminal Appeal has been filed on behalf of the
appellant challenging the judgment of conviction dated
22.03.2005 and sentence dated 23.03.2005 passed in Sessions
Case No. 71/2004 by Shri Udai Narayan Singh, learned Sessions
Judge, Pakur by which the appellant has been convicted for the
offence under Section 307 and 341 of the Indian Penal Code and
to undergo S.I for four (04) years for the offence under Section
307 of the I.P.C. However, no separate sentence has been passed
for the offence under Section 341 of I.P.C.
However, learned Court below has acquitted three (03)
persons namely Nand Lal Sah, Shivjee Sah and Pramod Sah for
the offences under Section 307 and 341 of the I.P.C.
3. The prosecution case, in brief, is that on 07.03.2004 the
informant Shiv Narayan Yadav had gone to Hiranpur Hatia where
he met with the accused Pawan Sah who was having a lathi in his
hands. It is alleged that the other accused namely Pramod Sah,
Shivji Sah and Nand Lal Sah were also with the accused Pawan
Sah and all the accused persons surrounded him and abused and
assaulted him by fist and slaps. It is alleged that the accused
Pawan Sah with an intension to kill the informant had given lathi
blow on his head and legs as a result of which he became
senseless and fell into the ground.
4. Thereafter on 08.03.2004, the informant regained his
sense at Sadar Hospital, Pakur where his fardbeyan was recorded
by the Officer-In charge of Hiranpur Police Station and on the
basis of which Hiranpur P.S. Case No. 20/04 dated 08.03.2004
under Section 341, 323, 504 and 307/34 I.P.C was instituted.
5. Heard Mr. A.K. Kashyap, learned Senior Counsel assisted
by Mr. Indu Shekhar Gupta, learned counsel for the appellant and
Mr. Navin Kumar Ganjhu, leaned A.P.P. for the State.
6. Learned counsel for the appellant has submitted that the
impugned judgment of conviction and sentence is illegal, arbitrary
and not sustainable in the eye of law. It is submitted that the
allegations against the appellant are not correct and has been
exaggerated one. It is submitted that grievous injury has not been
found on the vital part of the body and as such, conviction of the
appellant under Section 307 of the I.P.C is not maintainable. It is
submitted that the Doctor had found simple injury on the head and
grievous injury has been found on the left leg of the informant. It
is submitted that although several prosecution witnesses have
supported the prosecution case, however, the learned Court below
has convicted only the appellant. It is submitted that even PW-9
i.e. the Doctor has stated in Para 5 and 6 of his evidence that
simple injury has been found on the head of the informant
whereas grievous injury was found on the legs of the informant. It
is submitted that there is no eye witness of the occurrence and as
such, PW-1 to PW-4 namely Sankar Bagti, Sushen Mandal,
Menka Devi, Md. Hussain respectively and PW-6 to PW-8 namely
Sachin Rajak, Digambar Sah, Prabhakar Prasad Sah @ Kalu Sah
respectively have been declared hostile by the prosecution and
even the informant was also declared hostile by the prosecution. It
is submitted that PW-10 is the I.O of this case, who has merely
corroborated the prosecution case, which is not believable as his
evidence is contradicted by the other prosecution witnesses and
hence, the appellant may be acquitted.
7. On the other hand, learned A.P.P has submitted that the
impugned judgment of conviction and sentence is fit and proper
and no interference is required from this Court. It is submitted that
the learned Court below has taken lenient view by sentencing the
appellant for a period of four (04) years only. It is submitted that
PW-5 is the Informant of this case, who has fully supported the
case against the appellant and had stated that the appellant had
assaulted him by lathi on his temple and due to which his left leg
was fractured and even his right leg was damaged and he had
remained in hospital. It is submitted that PW-9 is the Doctor of
this case who had also found five (05) injuries on the head of the
informant and even the supplementary injury report was received
in which he found grievous injury on the right leg and left leg of
the informant and the supplementary Injury Report has been
marked as Exhibit-2/A. It is further stated that Exhibit-2 is the
Injury Report of the Doctor, who has found five (5) Injuries on the
person of the informant and Exhibit-2/A is the supplementary
Injury Report in support of the prosecution case and injury of the
informant.
8. It is submitted that PW-1 Sankar Bagti, PW-2 Sushen
Mandal, PW-3 Menka Devi, PW-4 Mohammad Hussain, PW-6
Sachin Rajak, PW.-7 Digamber Sah and PW-8 Pravakar Prasad
Sah have been declared hostile but they have not denied the
occurrence. It is submitted that PW-10 is the I.O of this case who
had also supported and corroborated the prosecution case and
hence, no illegality has been committed by the learned Court
below and hence, this Criminal Appeal may be dismissed.
9. Perused the Lower Court Records and considered the
submissions of both the sides.
10. It transpires that the informant namely Shiv Narayan
Yadav had lodged the F.I.R against the appellant namely Pawan
Kumar Sah on 08.03.2004 under Sections 341/326/504/307 of the
I.P.C for the occurrence, which took place on 08.03.2004.
11. It transpires that the police, after investigation, had
submitted charge sheet against the appellant Pawan Kumar Sah.
and three other persons namely Shivjee Sah, Nand Lal Sah and
Pramod Sah for the offences under Sections 341/323/504/307 of
the I.P.C on 27.05.2004 before the learned C.J.M, Pakur.
Thereafter, the learned C.J.M had taken cognizance
against the said persons including the appellant on 27.05.2004
under Section 341/323/504/307 of the I.P.C.
12. After supplying the police papers to the appellant Pawan
Kumar Sah and three other namely Shivjee Sah, Nand Lal Sah and
Pramod Sah, the case was committed to the Court of Sessions.
13. Thereafter, the charges were framed against the appellant
Pawan Kumar Sah and three others namely Shivjee Sah, Nand Lal
Sah and Pramod Sah under Section 341/323/504/307/34 of I.P.C
on 18.08.2004 by Shri Roshan Lal Sharma, then learned Sessions
Judge, Pakur and to which they pleaded not guilty and claimed to
be tried.
14. During trial, the prosecution in support of its case, got
examined ten (10) witnesses who are as follows:-
(i) PW-1 is Sankar Bagti,
(ii) PW-2 is Sushen Mandal,
(iii) PW-3 is Menka Devi i.e. the Informant,
(iv) PW-4 is Mohammad Hussain,
(v) PW-5 is Shivnarayan Yadav,
(vi) PW-6 is Sachin Rajak,
(vii) PW-7 is Digambar Sah,
(viii) PW-8 is Prabhakar Prasad @ Kalu Sah,
(ix) PW-9 is Dr. Satish Chandra Singh i.e. the Medical
Officer, Primary Health Centre, Hiranpur,
(x) PW-10 is Anil Kumar Choudhary i.e. the I.O and
officer-in-charge of Maheshpur P.S.
15. The prosecution in support of its case had marked the
following document marked as Exhibits which are as follows:-
(i) Exhibit-1 is the signature of PW-5 Shiv Narayan Yadav,
(ii) Exhibit-2 is the Injury Report of informant,
(iii) Exhibit- 2/A is the supplementary Injury Report of Informant,
(iv) Exhibit-3 is the fardbeyan and
(v) Exhibit-4 is the formal F.I.R.
16. The prosecution has also got marked the Material Exhibits
which are as follows:-
(i) Material Exhibit-1, Exhibit-1/A, Exhibit-1/B and Exhibit-
1/C respectively are the X-Ray plates of Shiv Narayan Yadav.
17. Thereafter, the appellant namely Pawan Kumar Sah and
three others namely Shivjee Sah, Nand Lal Sah and Pramod Sah
were examined under Section 313 of Cr.P.C. on 09.02.2005 and to
which they denied the circumstances put forth before them.
18. Neither any defence witness has examined nor any
document has been marked as Exhibits on behalf of the defense (i.e.
the appellant).
19. However, the learned Court below has convicted the
appellant for the offence under Sections 307 and 341 of I.P.C and
sentenced him to undergo S.I for four (4) years under Section 307 of
the Indian Penal Code. However, no separate sentence has been
passed for the offence under Section 341 of the Indian Penal Code.
20. Now, this Court has to consider as to whether the judgment
and sentence passed by the learned Court below is proper or not?
21. It transpires that the learned Court below, after considering
the case of both the sides, has convicted appellant namely Pawan
Kumar Sah, however the learned Court below had acquitted three
others persons namely Shivjee Sah, Nand Lal Sah and Pramod Sah
as mentioned above.
21. It further transpires that the learned Court below has
convicted the appellant under Section 307 on the ground that there
was intention on the part of the appellant to commit such an overt
act.
22. So far as the evidence of prosecution witnesses is
concerned, PW-1 is Sankar Bagti who is the brother-in-law of the
informant and has been declared hostile by the prosecution and he
had merely stated that he learnt from the local people that the
appellant had assaulted the informant.
Thus the evidence of PW-1, Sankar Bagti is not reliable.
23. PW-2 is Sushen Mandal, who has denied the occurrence
and has also been declared hostile by the prosecution.
Thus, the evidence of PW-2 is not reliable.
24. PW-3 is Menka Devi i.e. the wife of the appellant, who is
a hearsay witness and stated that she learnt from her husband that
the appellant Pawan Kumar Sah had assaulted him. Thus, PW-3
has been declared hostile only on the point of other accused
persons namely Shivjee Sah, Nand Lal Sah and Pramod Sah
respectively.
Thus, PW-3 has supported the occurrence against the
appellant as the hearsay witness but she is not the eye witness of
the occurrence.
25. PW-4 is Mohammand Hussain who stated that he was not
aware of the occurrence and has been declared hostile by the
prosecution.
Hence, the evidence of PW-4 is not reliable.
26. Similarly, PW-6 Sachin Rajak, PW-7 Digamber Sah and
PW-8 Prabhakar Sah @ Kalu Sah have been declared hostile as
they have merely stated that they had seen the informant in the
injured condition. Hence, the evidence of PW-6 Sachin Rajak,
PW-7 Digamber Sah and PW-8 Prabhakar Sah @ Kalu Sah are
also not reliable.
27. So far as the evidence of PW-5 Shivnaryan Yadav i.e. the
informant is concerned, it reveals that he had supported the
prosecution case with effect that the appellant had assaulted him
by lathi on head due to which he fell down. Thereafter, the
appellant assaulted him and his left leg was fractured and even the
wall of right leg was fractured and he was hospitalized but the
appellant was alone and none had accompanied him. He had also
admitted that the appellant Pawan Kumar Sah and son of the
informant namely Vipin Yadav were in jail in one case, however,
the informant had denied the allegations against three persons
namely Shivjee Sah, Nand Lal Sah and Pramod Sah.
During cross-examination, he also admitted that he was
on visiting terms with the appellant prior to the occurrence,
Thus, on the question of assault the informant has
supported the case.
28. PW-9 is Dr. Satish Chandra Singh who is Medical Officer
at Primary Health Centre, Hiranpur and had found following
injury on his person which are as follows:-
(i) Lacerated wound 2" x 1/2" x scalp deep over the occipital
region of the head.
(ii) A swelling with tontusion almost of over the left side of the
face with haematoma 2" dia approximate below theleft lower eye-
lid and over the upper face clinically sign of fracture dislocation
of the left mandible over the mid region.
(iii) A contusion with swelling of size 3" approx over the mid
region left lower leg clinically a case of fracture of bones of the
left lower leg.
(iv) A contusion with swelling over the right medial malloeous of
the right foot.
(v) A contusion with swelling of 1" dia over the left medial aspect
of the right knne joint.
He has further proved the injury of the informant marked
as Exhibit-2. He has further proved the supplementary Injury
Report marked as Exhibit-2/A. He has further proved X-Ray
Report marked as Material Exhibit-1 to Exhibit-1/C respectively.
During cross-examination, he stated that he had examined
Shiv Naryan Yadav at 11.00 A.M. He is neither Orthopedic
Surgeon nor a Radiologist. He had given his first opinion on the
basis of clinical examination. On the same day, he referred the
injured to Sadar Hospital, Pakur. He further stated that there is no
separate report of Dr. A.K. Shrivastava save and accept his report
on the yellow cover of the X-Ray plate duly signed and dated by
him. He also stated that death could not be caused from the above
injuries. The above injuries can be possible by fall on hard stones.
Thus, from scrutinizing the evidence of PW-9, it would
appear that injury on the person i.e. on the head of the informant
was found to be simple in nature whereas the injuries on legs were
grievous in nature. It is further evident that injury has been caused
by lathi not by any lethal weapon.
Thus, there is no grievous injury on the vital part of the
body of the Informant.
29. PW-10 is Anil Kumar Choudhary who is the Officer-in-
Charge of Maheshpur P.S and also I.O. of this case, who stated
that on hearing the news of assault, he went to the Hiranpur Police
Station and had found that informant Shivnarayan Yadav was
being treated and was in unconscious condition and the Doctor has
referred the informant at Sadar Hospital, Pakur. Thereafter, he
recorded the fardbeyan of the informant on 08.03.2004 at Sadar
Hospital, Pakur and proved the fardbeyan marked as
Exhibit-3. He further proved the formal F.I.R marked as Exhibit-4.
Thereafter he had visited the place of occurrence and had recorded
the statements of the witnesses namely Sushen Mandal i.e. PW-2,
Sankar Bagti, Mohammad Hussain, Sachin Rajak, Digamber Sah,
Prabhakar Sah @ Kalu Sah who had supported the prosecution
case. However, he had not recorded the statements of the relatives
of the informant.
He also admitted to have not mentioned about hearing
rumors of assault in the case diary on 07.03.2004 but it was the
day of Holi. Thereafter, he had started the investigation on
08.03.2004 after recording the fardbeyan of the informant.
30. From appreciating the evidence of prosecution witnesses,
it is evident that the occurrence of assault had taken place and the
appellant had assaulted the informant by lathi on his head and
both the legs. However, PW-9 i.e. the Doctor had found simple
injuries on the head of the informant, although he stated that
injuries on the legs of the informant were grievous in nature.
31. Therefore, the learned Court below has committed error
by convicting the appellant under Section 307 of the I.P.C instead
of Section 324 Indian Penal Code. It is evident that the legs of the
informant was fractured and as such, at best this is case under
Section 324 of the I.P.C instead of 307 of the I.P.C.
32. Under the circumstances, the conviction of the appellant
is altered from Section 307 of the I.P.C to Section 324 of the I.P.C,
in view of the fact that the prosecution has proved the X-Ray
Report of the legs marked as Material Exhibit-1 to Material
Exhibit-1/C and supplementary Injury Report marked as Exhibit-2
to Exhibit-2/A. However, considering the fact that the occurrence
took place more than 20 years ago and both the parties were on
visiting terms and the appellant has remained in custody for about
45 days. However, the informant should also be compensated by
paying some compensation.
33. Under the circumstances, the sentence of the appellant is
modified to the extent that period undergone by the appellant in
custody shall be period of sentence subject to the condition that
the appellant shall pay Rs. 25,000/- by way of compensation to the
informant or his family members for causing injury on his person
by way of cash within a period of eight (8) weeks from today,
which may be deposited in the Nazarat in the Civil Court, Pakur.
The learned Trial Court below is directed to disburse the said
Rs. 25,000/- to the informant or his family members on filing of
necessary application and the learned Trial Court shall also
intimate the informant and his family members through DLSA,
Pakur to receive the compensation amount of Rs. 25,000/- and
upon which the DLSA, Pakur may send the Para Legal Volunteers
to the house of the informant.
34. Thus, this Criminal Appeal No. 459 of 2005 is allowed in
part with modification in sentence as mentioned above.
35. Let the Original Lower Court Records be sent to the
learned Court below at once by the Office.
(Sanjay Prasad, J.)
Kamlesh/
