1 Cr. Appeal no. 114 of 2004(SJ) With Cr. Appeal no. 820 of 2004(SJ) ---- Against the judgment and order of conviction and sentence dated 19.11.2003, passed by Shri Ram Bachan Singh, learned 6th Additional Sessions Judge-, F.T.C. No. 3, Godda in Sessions Case No. 221 of 1993/78 of 2002. ------- Deven Yadav @ Devan Gope, Son of late Badri Yadav, Resident of Village-Tarkharwa ( Chandpur), P.S. Meharma, District-Godda. …..Appellant in Cr. Appeal No. 114/2004 Dinesh Yadav, Son of late Badri Yadav, Resident of Village-Tarkharwa ( Chandpur), P.S. Meharma, District-Godda. …..Appellant in Cr. Appeal No. 820/2004 (SJ) Versus The State of Jharkhand. ----- For the Appellant : Mr. J.P. Jha, Sr. Advocate For the State : Mr. T.N. Verma, APP ----- PRESENT HON’BLE MR JUSTICE RONGON MUKHOPADHYAY --- C.A.V. On 06.02.2015 Pronounced On 18/04/2016 R. Mukhopadhyay, These appeals are directed against the judgment and order of conviction and sentence dated 19.11.2003, passed by Shri Ram Bachan Singh, learned 6th Additional Sessions Judge-, F.T.C. No. 3, Godda in Sessions Case No. 221 of 1993/78 of 2002, by which the appellants have been convicted for the offence under section 307 of the Indian Penal Code, read with section 34 of the Indian Penal Code and has been sentenced to undergo R.I. for five years and also to pay a fine of Rs.1,000/- each and in default of payment of fine, the appellants had to undergo simple imprisonment for a further period of six months.
2. The prosecution case is that on the date of occurrence, the appellants as well as accused-Badri Yadav (since deceased) armed with Lathi, Gandasa had started making plantation of chilli adjoining to the house of the informant and when the informant had protested, Badri Yadav had given a lathi blow on his head whereas the accused- Dinesh Yadav had given a Gandasa blow causing injury in both the hands whereas the accused-Deven Yadav were extorting the other accused to commit assault. It is alleged that when the informant fell down, some of the villagers had assembled and thereafter he was 2 taken to Meharma Hospital, where he was treated by a doctor. According to the informant, the occurrence had taken place due to previous land dispute.
3. Based on the aforesaid allegations, Meharma P.S. Case No.62 of 1993 was instituted for the offence punishable under sections 324, 323 and 307/34 of the Indian Penal Code.
4. After conducting an investigation, chargesheet was submitted by the police on 7.7.1993 and pursuant to taking cognizance, the case was committed to the Court of Sessions, where charge was framed against the appellants for the offence punishable under sections 307/34 of the Indian Penal Code and trial proceeded.
5. In course of trial, four witnesses were examined out of six chargesheet witnesses. P.W-1-Nepal Mandal has deposed that while he was going to Sukhari Village he had seen the informant and Dinesh Yadav quarreling. It has been stated that subsequently Dinesh Yadav had come with a Gandasa whereas Badri Yadav had come with a lathi but the appellant Deven Yadav did not have any weapon in his hand. It has been deposed that Dinesh Yadav assaulted the informant with Gandasa, which was stopped by the informant by his hand and when the informant had sat down, accused Badri Yadav had assaulted him with a lathi on his head. He has further stated that Deven Yadav was instigating. This witness claims to have seen the occurrence from a distance of five yards. P.W-2-Manohar Yadav did not support the prosecution case and he was declared hostile. P.W-3-Dr.Pravesh Paswan had examined the informant and it was opined that the injury no. 1 was grievous in nature and all the injuries were caused by hard and blunt substance. P.W-4-Dilip Kumar Yadav had deposed that he was going to Sukhari village to attend some religious rituals and on the way he saw Dinesh Yadav assaulting the informant with Gandasa whereas Badri Yadav was assaulting him with a lathi. He has further deposed that the appellant-Deven Yadav, who is the elder brother of the appellant-Dinesh was standing.
6. The appellants were examined under sections 313 Cr.P.C. , in which they denied the allegations made against them.
7. Heard Mr. J.P. Jha, learned senior counsel for the appellants and 3 Mr. T.N. Verma, learned A.P.P. for the State.
8. It has been submitted by the learned senior counsel for the appellants that the entire criminal case suffers from inherent defects as neither the I.O. was examined nor was the informant examined. It has further been submitted that the genesis of occurrence had not been proved by the prosecution and the place of occurrence also could not be proved in absence of examination of I.O. It has also been submitted that the plot and jamabandi number, in which the occurrence is said to have taken place have not been brought on record. Learned senior counsel submits that conviction of the appellants is based on the statement of P.W-1 and P.W-4 who are the nephew of the informant and being related and highly interested witnesses their evidence should have been discarded by the learned trial court. He further submits that the acts of the appellants would not show that there was any intention to commit murder of the informant and therefore no case under section 307 of the IPC is made out against the appellants.
9. Mr. T.N. Verma, learned A.P.P., has submitted that non examination of the I.O. would not prejudice the case of the appellants as the factum of occurrence has duly been supported by P.W-1 and P.W-4. Learned counsel submits that the informant could not be examined as during pendency of the trial, he had died. It has been submitted that the evidence of P.W-1 and 4 inspires confidence and merely because they are related to the informant that by itself would not be a ground not to consider their evidence. It is the consistent case of the prosecution that there was a dispute between the accused and the informant with respect to plantation of chilli adjoining the house of the informant. It also appears from the evidence that prior to the incident, the accused Dinesh Yadav and Badri Yadav were already armed and therefore it cannot be said that the incident had taken place on the spur of moment . The intention to commit physical harm to the informant is apparent from the said fact and therefore a case under section 307 IPC is clearly made out. The informant could not be examined as during the course of trial he had already died. So far as non examination of I.O. is concerned, the same would not by itself be fatal to the prosecution as the place of occurrence has been established by the deposition of P.W-1 and P.W-4. The manner of 4 occurrence and the part played by each of the accused has also been disclosed by P.W-1 and P.W-4 as they are the eye witnesses to the occurrence. In such circumstances, therefore, it can be concluded that the genesis of occurrence had duly been proved by the evidence of witnesses as also the part played by each of the accused in committing the assault upon the informant in vital part of his body. P.W-3 is the doctor who had examined the informant and he had found the following injuries on the person:- (i) Lacerated wound on anterior surface of right forearm through which part of bone is protruding, size 2”x1”x”. It seems to be compound fracture of forearm. (ii) Lacerated wound on left arm ( lower posterior surface), size ½”x1/4”x1/4”. (iii) Lacerated wound on the left parietal region, size about 1”x1/4”x1/4”. The doctor had opined injury nos. 2 and 3 to be simple in nature and after receipt of x-ray report ( Ext-3), the injury no. 1 was found to be grievous in nature. Therefore, the injury report fully corroborates the assault made by accused Dinesh Yadav and Badri Yadav. In such circumstances, therefore, the prosecution having succeeded in establishing its case, which has been properly considered and appreciated by the learned trial court and there being no infirmity or illegality in the impugned judgment dated 19.11.2003, the appeal preferred by the appellant Dinesh Yadav (Cr. Appeal No. 820 of 2014) fails and the same is dismissed. So far as the appellant in Cr. Appeal No. 114 of 2004 is concerned, there appears to be some discrepancy with respect to the exact role played by this appellant, although in the FIR as well as in the evidence of P.W-1 and P.W-4, it has been consistently disclosed that this appellant was not armed with any object though P.W-1 has stated about the appellant instigating the assailants but the same has not been corroborated as P.W-4 has merely stated that the appellant being the elder brother of Dinesh Yadav was merely standing at the place of occurrence. Therefore, the question of convicting the appellant under section 307 of the IPC by taking resort to section 34 of the IPC does not get proved in absence of any corroborative evidence and the appellant therefore deserves the benefit of doubt. 5 In such circumstances, therefore, while allowing the Cr. Appeal No. 114 of 2004, the judgment and order of conviction and sentence dated 19.11.2003, passed by Shri Ram Bachan Singh, learned 6th Additional Sessions Judge-, F.T.C. No. 3, Godda in Sessions Case No. 221 of 1993/78 of 2002, whereby and whereunder this appellant was convicted for the offence under section 307/34 of the IPC and had been sentenced to undergo R.I. for five years, is set aside. The appellant in Cr. Appeal No. 114 of 2004 is discharged from the liability of his bail bond. To sum up, Cr. Appeal No. 114 of 2004 is allowed whereas Cr. Appeal No. 820 of 2004 is dismissed. Since the appellant Dinesh Yadav in Cr. Appeal No. 820 of 2004 is on bail, his bail bonds are cancelled and he is directed to surrender before the learned trial court to serve out the rest period of his sentence. (Rongon Mukhopadhyay,J) Jharkhand High Court, Ranchi Dated the 18th April, 2016 Rakesh/NAFR