Chiku Kalindi And Ors. Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (S.J.) No. 1133 of 2003

 (Against the judgment of conviction and order of sentence dated 30.7.2003
passed by the Additional District & Sessions Judge, Fast Track Court no.1,
Jamshedpur in connection with S.T. No. 418 of 1999 arising out of Golmuri
P.S. Case no.60 of 1999)

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1. Chiku Kalindi

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2. Subhas Kalindi

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3. Devanand Kalindi

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All S/o Late Prem Chand Kalindi

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4. Hari Ojha S/o Late Shiv Kumr Ojha

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All R/o Tuila Dungri, L.No.-4, R.No. 41A-Block P.S. Golmuri, Jamshedpur, district Singhbhum East …… Appellants -Versus-

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The State of Jharkhand ...... Respondent ------

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA -----For the Appellants : Mr. Amit Kumar Choubey, Advocate For the Respondent : Mr. Rajnish Vardhan,A.P.P. -------

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Dated 24^th September,2018 RATNAKER BHENGRA,J

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This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 30.7.2003 passed by the Additional District & Sessions Judge,Fast Track Court No.1, Jamshedpur in S.T. Case No. 418 of 1999 arising out of Golmuri P.S. Case no. 60 of 1999 whereby and whereunder appellants have been found guilty and sentenced to undergo R.I. for one year under Section 323 of the Indian Penal Code and to pay a fine of Rs. 1000/- each. In default of payment of fine amount they will have to undergo simple imprisonment for one month.

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2. The Prosecution case in brief, is that on 2.4.1999 at about
1:30 hrs. the informant Shila Kandulna gave her fardbeyan at Tata
Main hospital to A.S.I. D.N.Singh of Bistupur P.S. that the

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accused persons always tried to oust the informant and her family
members from her house and wanted to take forcible possession
over the entire house. With such evil intention on 1.4.1999 at
about 3 p.m. the aforesaid accused started abusing the informant
and they also started throwing away her belongings. When she
resisted they started beating the informant and her husband. The
accused Devanand who was armed with Kulhari inflicted a kulhari
blow on her head and also pressed her throat with an intention to
kill her. Other accused Subash Kalindi and Hari Ojha having lathi
in their hands used using filthy words against her and both of
them inflicted lathi blows on her and said that “Saali ko jaan
se maar dalo”. They also assaulted her husband and her son as a
result of which they sustained injuries on their person. As
stated in the fardbeyan the accused persons also assaulted her
sister-in-law Balamdina Kandulna and her brother-in-law Semon. It
has been further stated that the accused persons namely Devanand
Kalindi, Subhash Kalindi, Chiku Kalindi and Hari Ojha who are
said to be the tenants of the informant assaulted her with
kulhari and lathi and pressed her throat with an intention to
kill her and to take forcible possession of her house.

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3 . On the basis of aforesaid fardbeyan,a case was lodged as Golmuri P.S. Case No. 60 of 1999 U/s 448,341,323,324 and 307/34 IPC and on completion of investigation charge-sheet was submitted u/s 448,341,323,324 and 307/34 IPC. Cognizance of the offence was taken and the case was committed the court of Sessions. Charges were framed against the accused persons to which they pleaded not guilty.

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4 . Prosecution has examined altogether seven witnesses in support of its case.

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6. PW-1 Manonita Purti neither supported the prosecution version nor identified the accused persons hence she was declared hostile.

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7. PW-2 Shila Kandulna is the informant who has supported her version as stated in her fardbeyan and had also identified her signature over the same which had been marked as Ext.-1.During

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cross-examination she supported that appellants had thrown away
the belongings of her house on the road. She further deposed that
the place of occurrence, the house belongs to her father-in-law
Jeevan Gudia who had adopted her husband as his son. She further
deposed that she had no knowledge as to the fact that Pasan Gudia
happens to be the nephew of Jeevan Gudia. She further deposed
that all the last rites of Jeevan Gudia was performed by the
informant and her family members. The vehemently refused this
fact that the place of occurrence house stands registered in the
name of accused Subash Kumar and Asit Kumar which is said to
have taken place on 30.1.1997 which is alleged to be executed by
the nephew of Jeevan Gudia namely Pasan Gudia in favour of the
accused persons. She also refused that informant and her family
members were living in the said house illegally and she also
refused that on demand of rent by the accused person the
informant and her family members quarreled with them. She also
refuted that her son Amar Kandulna had attempted to inflict a
blow with iron bucket on Devanand Kalindi with a view to kill him
and when she intervened she sustained injuries.

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8.PW-3 Balamdina Kandulna is sister in law of the informant
who had supported the prosecution version in her examination-in-
chief and had stated that the accused persons started using
filthy languages threw away and the belongings of her house as
well as the informant and other family members. She further
deposed that accused Devanand had inflicted a kulhari blow on the
informant and had pressed her throat. She further deposed that
the accused Hari Ojha , Subash Kalindi and Chiku Kalindi had
assaulted Amar Kandulna, Prem Kandulna and Shila Kndulna with
lathi.In para-2 she deposed that accused persons wanted to grab
her house. During cross-examination she deposed that the
informant Shila Kandulna is her sister-in-law. She corroborated
the fact that during the scuffle she had also sustained injuries
on her chest and back but had not undergone any medical
treatment.

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9. PW-4 Illyani Kandulna had been tendered by the prosecution
who had deposed that the informant is her aunt and Amar Kandulna
is her brother and Prem Kandulna is her uncle.

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10. PW-5 Prem Manohar Kandulna is the husband of the informant
who had supported the prosecution version and deposed that reason
behind such incident was that the accused persons wanted to oust
them from the house. During his cross-examination he had admitted
this fact that in the record of TISCO his fathers’name was
recorded as Matish Kandulna.In para 5 he deposed that on 1.4.1999
he was at his house and then all the belongings of his house
including the food grains and utensils were thrown away and when
he resisted he was assaulted by the appellants. He further
deposed the persons standing nearby did not come to interfere.
He further deposed that he had undergone medical treatment at
M.G.M. hospital.

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11. P.W.-6 is Amar Kandulna is the son of informant who had
also supported the prosecution case.In his cross-examination he
deposed that the house which is the place of occurrence belongs
to his grandmother. He had very specifically stated that he did
not know how many persons were assembled there. He deposed that
his mother had sustained injuries on the left side of her head
and she was not able to speak while going to the hospital and was
in an unconscious state. He strongly denied that any case was
ever initiated against them by the sister of the accused bearing
G.R. case no. 600/1999. He denied this fact that they were living
in the aforesaid house as tenants of Asit Kumar @ Chiku Kalindi.
He also denied that when the brother of Chiku namely Devanand
went to them to collect rent he made an attempt to throw a
bucket on him and when his mother and father tried to intervene
they sustained injuries.

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12. PW-7 Dr. Subhash Chand Panda had examined the informant
Shila Kandulna on 1.4.1999 at about 5:20 p.m. and found that
injury no.1 to be contusion haemotoma with lacerated wound left
parietal region with length 3½”x ¼”x scalp deep. He also found

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injury no.2 to be contusion haemotoma right parietal temporal
region and he had disclosed the age of injury to be less than 6
hours and further as regards the nature of weapon used to inflict
such injury he claimed it to be hard and blunt. The injury was
found to be simple in nature. He had proved the injury report
marked as Ext.2.

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ARGUMENTS ON BEHALF OF APPELLANTS:

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13. Learned counsel for the appellants has first and foremost
argued out that there is a case and a counter case and it is
clear cut that the incidence arose in the same place. In fact he
has argued that the appellants’side were the owners and the
informant side is actually living on rent and they are merely
living as tenants. Therefore, one thing is certain that both
parties were residing at the same place or under the same roof,
even if otherwise, though not admitted, if it is accepted that
the appellants were tenants, therefore, it is argued that
whatever resulted was the result of argument between the
residents of the same place and whatever transpired was in the
heat of moment and therefore there was no intention whatsoever
of inflicting any injury. Counsel pointed out that initially
offences were for certain other offences including Section 307
/34 IPC. Finally conviction was u/s 323 IPC only and therefore
entire matter may also be viewed in that light. Counsel then
argued that it is seen that all the witnesses are the family
members of the informant. No other witnesses have been examined
even though from the evidences of witnesses it appears that many
persons apart from family members had also gathered at the place
of occurrence. All witnesses are interested. Apart from family
witnesses PW-7 Dr.Subhash Chand Panda had been examined. Even the
investigating officer had not been examined and in absence of
investigating officer the genesis of the occurrence had not been
concretely proved. Particularly, in this case occurrence had
taken place under the same roof hence, it is necessary to find
out as to who are the original assailants were because in that

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case the appellants had full right of self defence.If the
genesis is attributed to the informant side then whatever actions
were taken on the part of the appellants can be said to be
actions of self defence rather than of offence having unilateral
effect. Hence, manner of occurrence has also not been correctly
depicted as the investigating officer has not been examined in
this case.Counsel had argued that no weapon has been recovered.
Kulhari which was said to have been used in commission of crime
was not even exhibited. Allegation of using such a weapon is only
to aggravate the offence.Even no stick was seized or exhibited
which also casts doubt on the allegation against the other
appellants.

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14. Learned counsel for the appellants also argued that in the
fardbeyan along with evidences it is alleged that there are also
other injured persons such as the husband and son of the
informant but there is no medical evidence to that effect.
Learned counsel further submitted that in any case the evidence
as indicated in the deposition of Dr.Subhash Chand Panda PW-7 is
that it was a simple injury and caused by hard and blunt
substance, therefore, there is no case at all of a kulhari used
in commission of crime. Counsel has concluded that main assailant
Devanand Kalindi has died who is alleged to have used a kulhari.
So far as other appellants are concerned no lathi has been seized
or exhibited.

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15. Learned counsel further argued that appellant namely Chiku
Kalindi had already spent one month in jail and other two
appellants have spent more than two months in custody and
appellants have already undergone the rigour and vigour of the
very old case. Therefore if any conviction is made then it may be
restricted to period undergone or the court may pass any other
appropriate punishment towards the ends of justice.

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ARGUMENTS ON BEHALF OF STATE-APP

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16. Learned counsel for the State has argued that this is a clear cut case of a scuffle that had taken place between both

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sides.The place of occurrence is admitted. He had pointed out
there is reliable injured eye witnesses and there are four eye
witnesses to the occurrence . He has pointed out that PW-2
injured witness had received injuries on her head. Her injuries
had been supported by evidence of PWs. 3,5 and 6. The witnesses
are of same family.It has to be taken into consideration that the
place of occurrence is a house in which all family members are
residing and it is not expected that other people will also be
there inside the house. Other persons gathered but during the
assault did not come to intervene. Further he has said that there
has been reference to the other case i.e Golmuri P.S. case No.
61 of 1999 in which informant’s side were acquitted which means
that the appellants herein are definitely guilty of the offence.

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17. It is submitted by both counsel that one of the appellants
i.e. appellant no.3 Devanand Kalindi had passed away. Report from
officer in charge, Golmuri Police Station, Jamshedpur had also
been received to that effect. Therefore, appeal against Devanand
Kalindi stands abated.

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FINDINGS:

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18. As regards the appeal of appellant No.3, Devanand Kalindi,
his Death Certificate having no. B 187412 issued on 19.11.2008
has been received, hence appeal with regard to him stands abated.
19. Having heard counsels from both sides and gone through the
evidence and facts and circumstances of the case, this is a case
of assault which has been witnessed by at least four prosecution
witnesses, including the injured witnesses PW-2- Shila Kandulna.
The witnesses who have supported and are eye witnesses are PW-
3,Balamdina Kandulna PW-5 Prem Manohar Kandulna and PW-6 Amar
Kandulna. All these witnesses were in the home itself so they are
very much natural witnesses and being at home they could only
have become the first and foremost witness.

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20. The ocular evidence of the aforesaid witnesses has been
supported and corroborated by the evidence of PW-7 Dr. Subhash
Chand Panda. Therefore, ocular evidence is corroborated by

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medical evidence. While deciding the case, this court has taken
note of the mitigating circumstances pleaded for.

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21. The motive of the appellant was to grab the land of the
informant and because of this reason an assault was made on the
informant and her husband.

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22. Regarding remaining appellants, namely, Chiku Kalindi,
Subhas Kalindi and Hari Ojha, conviction is sustained under
Section 323 IPC, however, because of the mitigating circumstances
pleaded by counsel for the appellants, period undergone is
considered as sentence sufficiently served. It is directed that
fine of Rs. 1000/- will not be applicable to the remaining
appellants, however, they are directed to pay compensation of Rs.
2500/- each (2500 x 3/- i.e. consolidated amount of Rs. 7500/-)
to the informant Shila Kandulna or her family members within two
months from the date of receipt of copy of this judgment and,
thereafter, they shall be discharged from the liability of bail-
bonds. In default of payment of compensation amount, the
remaining appellants, named above, are further directed to
undergo S.I. for two months.

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22. Instant appeal is dismissed with modification in sentence.

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(Ratnaker Bhengra,J)

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KNR/-

Chiku Kalindi And Ors. v. State of Jharkhand

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Chiku Kalindi And Ors. v. State of Jharkhand

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