Jharkhand High Court
Devid Kishku Son Of Sakal Kishku vs The State Of Jharkhand on 10 January, 2025
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.Appeal (SJ) No. 1186 of 2006
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1. Devid Kishku Son of Sakal Kishku.
2. Shiblal Kisku Son of Late Doman Kisku.
3. Manager Hembram Son of Late Satu Hembrom,
Both are residents of Bhenta Tola, P.S. Maheshpur, District-Pakur.
.... .... Appellant(s)
Versus
The State of Jharkhand ..... .... Respondent
With
Cr. Appeal (SJ) No.1165 of 2006
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1. Girish Hembrom, Son of late Satu Hembrom
2. Sushil Hembrom, Son of late Setu Hembrom.
.... .... Appellant(s)
Versus
The State of Jharkhand ..... .... Respondent
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For the Appellant(s) : Mr. Niraj Nayan Mishra, Amicus Curiae
(In both cases)
For the State : Mr. Prabir Kumar Chatterjee, A.P.P.
(In both cases)
PRESENT
Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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JUDGMENT
Date:- 10.01.2025
By Court:-
Heard Mr. Niraj Nayan Mishra, Amicus Curiae appearing for
the appellants as well as Mr. Prabir Kumar Chatterjee appearing for
the State.
2. Both criminal appeals are directed against the judgment and order
of conviction and sentence dated 01.08.2006 passed by learned
Sessions Judge, Pakur in Sessions Case No. 34 of 2002, whereby
and whereunder the appellants have been held guilty for the
offences under Sections 323 and 307/149 of the I.P.C. and all the
appellants were sentenced to undergo R.I. for 4 years under
Section 307/149 of the I.P.C., but no separate sentence was
awarded for the offence under Section 323 of the I.P.C. due to their
tribal status and poverty.
Factual Matrix
3. The factual matrix giving rise to these appeals that the case was
originated on the basis of the fardbeyan of the informant Hari
Hembram recorded by the police inter alia stating that the
informant had cut a branch of mango tree for the purpose of fire
wood. On 30.09.2001 at about 05:00 PM, the accused (Devit
Kishku) was removing some of the wood/branches, which was
protested by the daughters of the informant. Upon which the
accused (Devit Kishku) started abusing them. Hearing this, the
other co-accused assembled there and started assaulting the
daughter of the informant. The informant came at the place of
occurrence after hearing hue and cry of his daughters to rescue
them. It is further alleged by the informant that Manager
Hembrom with intention to kill him, had given lathi blow on his
head due to which, the informant fell down, and after falling down
they continue to assault the informant. After the occurrence, the
informant's son, wife and other co-villagers took him to the
hospital for treatment.
4. On the basis of the Fardbeyan of the informant, formal F.I.R. was
registered as Maheshpur P.S. Case No. 64 of 2001 dated 01st
October, 2022 for the offences under Sections 323, 341, 307, 504/34
of the Indian Penal Code.
5. After completion of investigation, charge-sheet under Sections 341,
323, 307, 504 read with Section 34 of the I.P.C. was submitted
against the accused persons.
6. After the cognizance, the case was committed to the Court of
Sessions where the charges under Section 323 and 307/34 I.P.C.
were framed against the accused persons to which they pleaded
not guilty and claimed to be tried. After conclusion of trial the
appellants were held guilty and sentenced as stated above.
7. Learned counsel for the appellants submits that learned trial court
has miserably failed to appreciate the evidence available on record.
The prosecution has failed to prove the case beyond reasonable
doubt to attract the ingredients of Section 307/34 of the Indian
Penal Code. The accused persons are innocent and have been
falsely implicated in this case due to previous enmity and further
alleged that firstly the informant had assaulted to the wife of
Sushil Hembrom (Appellant No.4) for which Maheshpur P.S. Case
No. 65/01 under Sections 341, 323 and 379 I.P.C. was registered
against the informant and other persons and this case is nothing
but a counter-blast case to that case The prosecution witnesses,
who have been examined, are not consistent with their statements
and suffer from material contradictions. Therefore, conviction and
sentence of appellants is liable to be set aside by allowing this
appeal.
8. In the alternative, it is submitted that appellants have undergone
the substantial period of imprisonment during the trial of the case
and have sufficiently been punished. Hence, their sentence may be
reduced for the period undergone, if these convictions are
sustained.
9. On the other hand, learned A.P.P. appearing for the State submitted
that there is no legal force in the points of arguments raised on
behalf of the appellants. The learned trial court has very wisely and
aptly appraised and evaluated the evidence available on record and
arrived at right conclusion. There are no merits in this appeal,
which is fit to be dismissed.
10. I have gone through the record of the case along with the
impugned judgment in the light of contentions of both side.
11. It appears that altogether ten witnesses were examined by the
prosecution to substantiate the charges leveled against the
accused/appellants:-
P.W.1:-Pushpalata Hembrom is the injured daughter of the
informant and in her evidence she has deposed that she and her
sister had went for grazing cattle where the accused (Devit
Kishku) without any reason came and started abusing and accused
(Manager Hembrom) hit on her head and Devid Kishku assaulted
on her back with Farsa and Shiblal Kishku assaulted her sister
with the iron rod and also assaulted with intention to kill her
father on his head with farsa. She has further deposed that they
have sold their mango tree, to which accused Devid Kishku was
removing and upon this she and her sister protested.
In her cross-examination, this witness admits that she had
not told the police that the accused persons had assaulted her
brother by fists and fats and also admits that Biti Murmu has
lodged the case on her father and others. She has refused that to
save their skin, her father has lodged this case against counter
case.
P.W. 2 Dr. Suresh Ch. Sharma is the medical officer who
has examined Hari Hembrom (informant) and found following
injuries: -
(i) A lacerated wound with blood clot dry on right frontal area of
head, 3.5 C.M. x 5 C.M. x bone deep.
(ii) A lacerated wound with dry blood clot on left frontal area of head
4.cm x 5 cm x bone deep.
(iii) A lacerated wound with blood clot on right parietal area of head
2.5 cm x 2 cm x bone deep.
(iv) Abrasion irregular with blood clot 4cm x 3 cm on the right side of
back over scapular area.
In his cross-examination, this witness admits that the
injuries caused by hard and blunt substance which are simple in
nature and the lacerated wound caused possibly by falling on hard
surface.
P.W.3 Dr. Shiv Kumar, is the medical officer who has examined
the daughter and son of the informant namely (Sukana Hembram)
and Subhash Tan and found following injuries in Sukana
Hembrom:-
(i) Linear swelling on back 5"x1"
(ii) Swelling and tenderness on third finger of right leg.
(iii) Tenderness on the neck.
On the same day at 11:00 PM, he has examined the Subash Tan
son of the informant and found several injuries: -
(i) Swelling and tenderness on right scapula 3"x 2".
(ii) Swelling and tenderness on right lateral of head 3"x 1 ½"
(iii) Tenderness on right wrist.
In his cross-examination, this witness admits that the injuries
caused to the injured persons are possibly caused by falling on hard
surface.
P.W.4 Hari Hembrom, is the informant and the most important
witness. In his evidence he has stated that when he was working in his
field, then his daughters and son were bringing back the cattle after
grazing. In the way, accused persons armed with weapons
surrounded them for assaulting and when he heard the commotion,
he rushed to rescue them where the informant and his children were
brutally assaulted by the accused persons.
In his cross-examination, he has admitted that there was a
land dispute between him and the accused persons.
12. I have given thoughtful consideration to every pros and cons of this
case and find that the prosecution has miserably failed to prove the
foundational facts for constituting the offence under Section 307 read
with Section 149 of the I.P.C. which has been reluctantly ignored by
the learned trial court without proper consideration.
I further find that the ingredients of offence under Section
323 of the I.P.C. attract in this case for which the accused persons have
already sufficiently been punished for their guilt during the trial of the
case. Hence, the conviction and sentence of the appellants for the
offence under Section 307/149 of the I.P.C. is hereby, set aside and
their conviction for the appellant under Section 323 is affirmed with
modification sentence to the period already undergone. Accordingly,
this appeal is partly allowed.
13. Appellants are on bail, as such they are discharged from the liability of
bail bond and sureties are also discharged.
14. Pending I.As, if any stands disposed of.
15. Let a copy of this judgment along with trial court record be sent to the
concerned court forthwith for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court at Ranchi
Date:10/01/2025
Amar/- N.A.F.R.
