Partly allowed

Arvind Sao And Ors. v. State of Jharkhand

Jharkhand HC4 Sept 2018Cr.A(SJ)/1366/2004

Case brief

AI extract

What is this about?

A criminal appeal against conviction for assault and unlawful assembly. The High Court upheld the conviction despite absence of investigating officer and treating doctor as witnesses, deeming prosecution evidence sufficient. Conviction was affirmed, but sentence was modified to a fine instead of imprisonment, and bail bonds were cancelled.

What did the court decide?

Conviction upheld; sentence modified to fine of Rs. 5,000 per appellant; bail bonds cancelled; conditional imprisonment for non-payment after eight weeks.

Arvind Sao And Ors. Vs State of Jharkhand — Bail and Remand | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (SJ) No.1366 of 2004

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(Against the Judgment of conviction and order of sentence, both dated 27.07.2004, passed by learned Additional Sessions Judge, Fast Track Court No.3, Daltonganj, in Sessions Trial No. 35 of 2002).

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Arvind Sao, son of Basant Sao.

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Bagendra Sao, son of Gyanchand Sao.

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Aditya Sao, son of Late Parmeshwar Sao.

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Nand Kumar Sao, son of Late Nandeo Sao.

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Basant Sao, son of Late Nanddeo Sao.

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Gyanchand Sao, son of Late Nandeo Sao.

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All are resident of village- Dhangerdih, P. S.- Patan, District - Palamau … Appellants Versus

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The State of Jharkhand … Respondent(s)

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P R E S E N T

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HON’BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellants : Mr. C. S. Pandey, Advocate Mrs. Bina Pandey Advocate. For the State : Mr. Pankaj Kumar, Additional Public Prosecutor.

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By Court:- Heard, learned counsels for the appellants, Mr. C. S. Pandey assisted by Mrs.

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Bina Pandey and Mr. Pankaj Kumar, learned Additional Public Prosecutor, appearing for

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the State.

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2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 27.07.2004, passed by the learned Additional Sessions Judge, Fast Track Court No.3, Daltonganj, in Sessions Trial No. 35 of 2002, whereby, the appellants/accused persons have been convicted for the offence committed and punishable under Sections 148 and 323 of the Indian Penal Code and awarded simple imprisonment for one year for the offence committed and punishable under Section 148 of the Indian Penal Code to each convicts and simple imprisonment for one year for the offence committed and punishable under Section 323 of the Indian Penal Code to each convicts. Both the sentences are directed to run concurrently.

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3. The prosecution case, is based upon, written report, submitted by informant Rajendra Sao (P.W.4) before the officer in-charge, Patan Police Station on 06.06.2001, wherein, the informant has alleged, that the accused persons have constructed 'ota'(place for siting) on the land of the informant. The informant has requested the accused persons several times to remove the 'ota', but they have not

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removed the same, and as such, on 06.06.2001, at about 4.00P.M., in the evening, the informant was removing the 'ota' , when the appellant, Gyanchand Sao came and asked the informant not to do so. Thereupon, the informant said that, illegal construction has been made on his land, upon which, Gyanchand Sao (appellant No.6) gave threatening to the informant and called other members namely, Basant Sao, Nand Kumar Sao, Bagendra Sao, Arvind Sao and Aditya Sao, who came with deadly weapons such as tangi, lathi and danda. The accused persons caught hold of informant and Gyanchand Sao (appellant no.6) and Basant Sao (appellant no.5) assaulted the informant, with intention to kill, by means of tangi, through the sharp end on the head of informant causing bleeding injury. On brawl raised by the informant, father of the informant Mahabir Sao alongwith neighbours namely Julum Sao, Lallu Sao, Nagendra Ram had came and pacified the matter. But father of the informant was assaulted by means of lathi, danda and sabbal by accused persons while rescuing the informant.

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4. On the basis of the written report of the informant, the Police instituted First Information Report bearing Patan P.S. Case No. 72 of 2001, dated 06.06.2001, under Sections 147, 148, 341, 342, 323, 324, 307 and 504 of the Indian Penal Code.

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5. After investigation, the police submitted charge sheet vide charge sheet no. 95 of 2001, dated 30.06.2001, under Sections 147, 148, 149, 341, 342, 323, 504, 324, 325 and 307 of the Indian Penal Code against all the six accused persons.

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6. The cognizance of the offence has been taken vide order dated 08.08.2001and the case has been committed to the Court of Sessions vide order dated 13.02.2002.

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7. The learned trial Court has framed charge against all the six accused persons, on 25.08.2003, under Sections 147, 148 and read with 149 and 307 of the Indian Penal Code, to which the appellants/accused persons have pleaded their innocence and thus, they were put under trial.

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8. The prosecution, in order to prove its case, has examined altogether five witnesses and also exhibited documentary evidence.

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Awadesh Kumar has been examined as P.W.1, and has been declared hostile by the prosecution, Julan Rihai Sao has been examined as P.W.2, Mahabir Sao

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(father of the informant and injured witness) has been examined as P.W.3, Rajendra Sao (informant of the case) has been examined as P.W.4, Ashok Tiwari (advocate clerk being formal witness) has been examined as P.W.5, who has proved the formal First Information Report, in the handwriting and signature of officer in-charge, D. K. Rana, and the same has been marked as exhibit-2.

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The prosecution has proved written report submitted by the informant and the same has been marked as exhibit-1, formal First Information Report, in hand writing and signature of officer in-charge has been proved and marked as exhibit-2 and duplicate copies of injury reports of Rajendra Sao and Mahabir Sao issued by Dr. T.P. Singh have been proved and marked as exhibits 3 and 3/1 respectively.

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9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C., on 05.06.2004, to which they have pleaded their innocence and false implication in the present case.

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10. After hearing learned counsel for the parties and on the basis of material available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellants before this Hon’ble Court , assailing the impugned judgment of conviction and order of sentence.

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11. Heard, learned counsels for the appellants, Mr. C. S. Pandey assisted by Mrs. Bina Pandey.

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Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as the doctor and the Investigating Officer have not been examined in this case and in absence of proof of injury by competent witness, the appellants cannot be convicted under Section 323 of the Indian Penal Code.

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Learned counsel for the appellants has further submitted, that there was no mens rea on the part of the appellants to commit an offence. It is on the spur of the moment, the occurrence took place in which the allegation was made that, these appellants have assaulted the

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informant and his father, but the injuries which were found on the persons of the victims are not corresponding to the allegation made in the prosecution case.

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Rajendra Sao has sustained four injuries:-

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1. Incised wound 1 ½” x ¼” x up to bone on right side parietal bone, nature of injury

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simple, caused by sharp cutting weapon.

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2. Swelling-left shoulder joint- simple in nature, caused by hard and blunt substance.

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3. Bruise -3”x1” on the left thigh simple in nature, caused by hard and blunt substance.

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4. Bruise -2”x1” on the right thigh simple in nature, caused by hard and blunt substance.

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Learned counsel for the appellants has further submitted, that the Mahabir Sao, father of the informant has also sustained injuries, four in numbers:-

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1. swelling with bruise on the left shoulder joint, opinion was reserved and x- ray was advised.

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2. Bruise of 2”x1” on the left arm-simple in nature, caused by hard and blunt substance.

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3. swelling on right leg-simple in nature, caused by hard and blunt substance. 4. Bruise 5”x 1” on right side back lower portion-simple in nature, caused by hard and blunt substance.

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Subsequently, doctor has given finding with respect to injury no. 1 as grievous, as there is fracture of lateral 1/3^rd of left clavicle.

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Learned counsel for the appellants has further submitted, that doctor, Dr. T. P. Singh, who has issued injury reports, has not been examined in this case nor any competent witness of the hospital, who has worked with the doctor has been examined in this case rather on the basis of proving the same through the advocate clerk, a formal witness, the learned trial Court has committed error in exhibiting injury reports as exhibits 3 and 3/1 respectively.

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Learned counsel for the appellants has further submitted, that the occurrence took place in the year 2001, judgment of conviction passed in the year 2004, and now after 18 years, if these appellants are to be held guilty and sent to jail, then the social harmony, which is prevailing in the society may be disturbed and as such, instead of sending them to jail, they may

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be given different punishment, if conviction is upheld.

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12. Heard, Mr. Pankaj Kumar, learned Additional Public Prosecutor appearing for the State.

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Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence is well founded and the same has been based on the material available on record, as the learned trial Court has found, that the appellants after forming unlawful assembly, as defined under section141 of the Indian Penal Code, committed an offence, armed with deadly weapons as defined under Section 148 of the Indian Penal Code. It is true that the doctor, who has issued the injury reports, and the investigating officer have not been examined in this case but since injury no.1 of Mahabir Sao(P.W.3) is grievous in nature, learned trial Court has rightly convicted the appellants under Sections 148 and 323 of the Indian Penal Code, and as such, this Court may not interfere with the impugned judgment of conviction and order of sentence at this stage.

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13. Heard, Learned counsel for the appellants, Mr. C. S. Pandey assisted by Mrs. Bina Pandey, Advocates and learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor and perused the records, i.e First Informant Report, framing of the charge, evidence of five prosecution witnesses, three exhibits of the prosecution side and the statement of the appellants recorded under Section 313 Cr. P. C.

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This Court has scrutinized the evidence of P.W.3(Mahabir Sao) and P.W.4(Rajendra Sao), who are the injured witnesses of this case. The evidence of the P.W.3, Mahabir Sao and P.W.4, Rajedra Sao are consistent with the prosecution case. They have been cross-examined by the defence but nothing has been elucidated to disbelieve the prosecution case.

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It is true that the investigating officer and doctor have not been examined in this case but inspite that, this Court is of the opinion that the learned trial Court has rightly passed the judgment of conviction and order of sentence against the appellants under Sections 148 and 323 of the Indian Penal Code, and the same is upheld and affirmed by this Hon’ble Court. This Court is of the opinion that issue related with construction

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of ‘ota’ over the land of the informant as alleged by the prosecution, which was removed by the informant himself and that incident took place between the neighours 18 years ago. The appellants have suffered rigour of trial for 18 years and now their relationship in the village is harmonious and as such, instead of sending them jail after 18 years, this Court is directing the appellants to pay Rs. 5,000/- by each appellants, total 30,000/- which shall be deposited before the learned trial Court, within a period of eight weeks from today and on deposit of the same the learned trial Court shall issue notice to Rajendra Sao (informant) and his father Mahabir Sao, who are injured of this case and pay to Rajendra Sao and Mahabir Sao, who are the victim of the case, a sum of Rs. 15,000/-each on due verification. In case any of them is not alive, then the same amount shall be paid to the legal heirs of the injured after due verification by the learned trial Court.

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The appellants who are on bail, their bail bond are hereby cancelled to comply the order of this Hon'ble Court. In case appellants have failed in depositing the said amount, they shall undergo three months simple imprisonment. Learned trial court will take every legal action, after eight weeks from today, to bring the appellants in custody to serve out sentence as imposed by this Hon'ble Court, in case said amount is not deposited.

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14. In the result, the instant criminal appeal stands dismissed with modification in sentence.

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15. The appellants, who are on bail, their bail bond is cancelled to comply the order passed by this Hon'ble Court.

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16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated 04.09.2018 Jay/-

Arvind Sao And Ors. v. State of Jharkhand

Case brief

What is this about?

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Arvind Sao And Ors. v. State of Jharkhand

Case brief

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