Partly allowed

Kishore Ram And Anr. v. State of Jharkhand

Jharkhand HC7 Sept 2018Cr.A(SJ)/932/2003

Case brief

AI extract

What is this about?

High Court dismissed appeal partly. Set aside conviction under Section 307 IPC for attempt to murder but sustained Section 323 conviction. Observered sentence for Section 307 as simple hurt. Discharged appellants from bail bond liability.

What did the court decide?

Appeal dismissed with modification: conviction under Section 307 IPC set aside; conviction under Section 323 IPC sustained; sentence for Section 307 deemed satisfied by time served; appellants dischar

Kishore Ram And Anr. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2018)

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Cr. Appeal (SJ) No. 932 of 2003

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[Against the judgment of conviction and order of sentence both dated 27.06.2003, passed by the learned Additional Judicial Commissioner, Xth Fast Track Court, Ranchi in Sessions Case No. 10/ 2001 of Session Trial No. 151/ 2003]

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Kishore Ram

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Manchun Ram @ Bijay Ram,

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Both sons of Late Chander Ram, residents of Harijan Colony, Pathalkudwa, PS: Lower Bazar, District- Ranchi.

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… Appellants

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--Versus--

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The State of Jharkhand …. Respondent

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PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. A.K. Sahani, Advocate. For the State : Mr. Ashish Jha, A.P.P.

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By Court:

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Heard learned counsel for the appellants.

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2. This criminal appeal is directed against the judgment of conviction and order of sentence both dated 27.06.2003, passed by the learned Additional Judicial Commissioner, Xth Fast Track Court, Ranchi in Sessions Case No. 10/2001 of Session Trial No. 151/ 2003 whereby and where under appellant No.1 has been convicted under Sections 307 and 323 of the Indian Penal Code and has been sentenced to undergo RI for five years under section 307 of I.P.C. and three months under section 323 of I.P.C. and both the sentences were ordered to run concurrently. Appellant No.2 was convicted under Section 323 of the Indian Penal Code and he was not sentenced but directed to execute a bond of Rs.2000/- for a period of one year and to maintain peace.

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3. Prosecution case,in brief, as per fardbayan dated 18-02-2000 of the informant Basant Ram P.W.3 is that on 18.02.2000 at about 8:00 a.m. while the informant was standing near his house, one Arti Kumari was being teased by the accused Kishore Ram. Informant restrained the accused Kishore Ram from teasing and on this the accused started abusing and

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assaulting him. In the meantime, Mithu Ram and brother of accused Kishore Ram i.e. Manchun Ram arrived there and the accused Manchun Ram slapped the informant. In the meantime, Kishore Ram went to his house and returned back with a sword and gave one sword blow on the back portion of the informant’s head causing bleeding injury. Informant further stated that thereafter, Ajay Kachchap brought the informant to the Sadar hospital for treatment.

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4. On the basis of fardbeyan of the informant Basant Ram, Lower Bazar P.S. Case No. 19 of 2000 dated 18.02.2000 was registered against the accused persons under Sections 341/ 324/ 323/ 307/ 354/ 34 of the Indian Penal Code. After investigation, charge sheet was submitted and the cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed under Sections 307/ 354 and 323 of the Indian Penal Code and trial was held. After the conclusion of trial, the accused persons herein were convicted and sentenced as aforesaid. Hence,this appeal.

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5. Prosecution examined altogether six witnesses in order to prove its case out of whom PW-3 Basant Ram is the informant of the case. PW-1 is Ajay Kachchap; PW-2 is Rajesh Lal; PW-4 is Arti Kumari and she was declared hostile by the prosecution; PW-5 is Dr. Chandra Bhushan Sahay; and PW-6 Bir Kumar is the investigating officer of the case.

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6. P.W.3 Basant Ram is the informant of the case. He has stated in his evidence that on the day of occurrence on 18-02-2000 at about 8 a.m. in the morning he was going to take water from the hand pump, which is at the distance of 15 legs from his house. He saw the accused Kishore Ram teasing Arti Kumari and when he restrained, then accused Kishore Ram gave fist blow to him. Thereafter, Manchun Ram, who happens to be the brother of the accused Kishore Ram arrived there and he slapped him. In the meantime, accused Kishore Ram, went to his house and returned back with sword and assaulted him with sword on the back of his head as a result blood oozed out. Thereafter, his friend took him to the Sadar hospital for treatment and from there he was sent to R.M.C.H. Informant has proved his signature on his fardbayan which was marked as Ext.-1.

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7. P.W.1 Ajay Kachchap has deposed that he saw Kishore Ram and Manchun Ram, both slapped the informant. Thereafter, Kishore Ram,

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assaulted the informant on the back of his head as a result blood oozed out. P.W.1 further stated that he took Basant Ram to the Sadar hospital where he cannot be treated. From Sadar hospital he was sent to Police station and from there he was sent to Bariyatu Medical, where informant was treated.

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8. P.W.2 Rajesh Lal has stated in his evidence that on hearing hulla he went to the place of occurrence and saw Manchun Ram slapped the informant and Kishore Ram gave sword blow on the head of the informant. 9. P.W.5 is the doctor, who had examined the injured informant P.W.3 Basant Ram and found following injuries on his person:

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2”x1/4”xbone deep lacerated wound on posterior part of vertex and bleeding.

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1”x1” bruise over left angle of the mouth.

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1”x1” abrasion on the back of left elbow.

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Tenderness on the right side of the front of the chest.

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Tenderness right luber region.

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Doctor opined that all the injuries were caused by hard and blunt substance and were simple in nature. Doctor has proved the injury report which was marked as Ext.-2.

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10. P.W.6 is the investigating officer of the case. He has proved the formal F.I.R and fardbayan which was marked as Ext.-3 and Ext.-1/1 respectively.

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Arguments of learned counsel for the appellants:

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11. Learned counsel for the appellants counsel has argued, first and foremost, regarding the place of occurrence that due to the various places of occurrence cited that seem to differ from the fardbeyan as well as from the evidences of the various prosecution witnesses, the case of the prosecution is grossly weakened.

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12. Learned counsel has argued that according to PW-1 and PW-2, the occurrence occurred or took place near the hand pump being surrounded by a crowd. However, on the other hand, according to PW-3, the informant himself, he was brought to the house by the appellants and in front of his house and in front of his family members, the assault had taken place. This is further differed by PW-4, Arti Kumari, who is said to be the person due to whom the entire incident had occurred and also as per the evidence of PW-

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6 or the IO, who have deposed that the occurrence took place in the common courtyard or angan of PW-4 and appellant No.1. Appellants’ counsel, therefore, submits that with such varying indications of the place of occurrence for the same incident, it is difficult to believe the allegations as have been sought to be made out.

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13. Regarding the genesis of the occurrence, which is said to be the teasing of PW-4 or Arti Kumari by appellant No.1, this sort of teasing is not supported by the evidence of PW-2, who is said to be the eye witness. Further, PW-4 or Arti Kumari, who is the alleged victim, has herself denied that alleged teasing took place. Therefore, in the first instance when victim of such purported eve teasing of such sexual harassment allegation herself denies it then it will be difficult to sustain any allegations regarding the same and perhaps even allegations surrounding it.

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14. Learned counsel has argued that the sexual teasing of PW-4 is the very genesis of the rest of the occurrence but if the genesis or initial genesis is itself denied then there is a big doubt regarding even the subsequent events. It was argued that no such other allegations coming under the purview of Sections 307 and 323 IPC can also be made out. Counsel has moreover argued that because of this denial by PW-4 herself that there was an acquittal of both the appellants under Section 354 IPC.

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15. Learned counsel for the appellants has then argued that even as per the manner of occurrence, there is much doubt created by the evidences that have been forthcoming. It is submitted that as per the evidence of PW1 and PW-2, appellant No.1 had assaulted on the back of the head of the informant by sword leading to bleeding injury in a crowded place. On the other hand PW-3 has deposed, who is the informant, that he was assaulted by sword by appellant No.1 on back of his head in presence of family members. Then according to PW-4 Arti Kumari, appellant No.1 did not assault the informant at all but rather appellant No.1 was inside his house. Rather she has said that the informant himself had slapped her, therefore, counsel has argued that with such variations in manner of occurrence by PW-1 and PW-2 then by PW-3 and then by PW-4 also considerably weakens the prosecution case.

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16. Continuing regarding the manner of occurrence, learned counsel has also said that it has been deposed by the IO that no blood stained soil or

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earth was recovered and seized and neither was there seizure or recovery and production made of any blood stained clothes and therefore, there is a lot of doubt raised about the assault which is said to have taken place with the resultant injuries.

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17. Learned counsel for the appellants has then argued regarding the injury report and the ocular version of the injuries and said that the injury report which has been marked as Ext.2 demolishes the ocular versions of assault by sword. Counsel has indicated from the injury report it has been revealed that injuries cannot be caused by sword but rather they may be caused by fall on hard surface. Specifically counsel says that the injuries were caused by hard and blunt substance and were simple in nature and therefore, counsel has said that the allegations of assault by sword by appellant No.1 is not corroborated by the medical report or Exhibit No.2.

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18. Apart from the aforesaid substantial arguments, learned counsel has said that there are additional arguments, which further weaken the case of the prosecution. Counsel has submitted that PW-1 and PW-2 are not even the eye witnesses because they have varied the place and manner of occurrence and therefore, their evidence is doubtful and not credible in nature. Counsel has also submitted in this line that the place of occurrence and the manner of occurrence also does not tally with the evidence of PW3 and also with the FIR.

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19. Learned counsel has also submitted that even if the entire prosecution case and even if the injury report are taken together then also the offence of Section 307 IPC or the offence under Section 323 IPC cannot be made out and sustained at all.

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20. Learned counsel has also argued that none of the family members of PW-3 i.e. the informant or even his neighbours or the names disclosed by PW-1 have been examined and therefore, counsel says when there was the possibility of bringing on record many other witnesses because they were either family members or neighbours or they were part of the crowd then there is a doubt, when the witnesses are restricted to only four in number and in addition to that the Doctor and the IO only.

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21. Learned counsel for the appellants has then referred to and relied upon two judgments delivered by the Hon’ble Apex Court. While referring the case of “Ramesh Kumar alias Babla versus State of Punjab” ,

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reported in (2016) 13 Supreme Court Cases 280 , counsel has argued that in this case that has been cited it is seen that the injuries were given by sword blow on head of complainant while another co-accused gave sword blow near eye and two incised injuries found on head of complainant caused by sharp weapon but evidence failed to establish which injury was caused by appellant. In such situation, the conviction under Section 307 IPC was set aside and it was converted to Section 324 IPC. Counsel has further referred to the same judgment and said that in this cited judgment also which seems to be a more serious case then to the case which he is arguing on hand the accused or the appellants were given the benefit under the Probation of Offenders Act, 1958 and therefore, argued that since his case stands on better footing, appellants may similarly be given similar sentencing if at all but definitely extend the benefit of Probation of Offenders Act, 1958.

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22. Learned counsel has also referred to the another case, “Sakharam versus State of Madhya Pradesh and another” , reported in (2015) 10 Supreme Court Cases 557 and said that this is also a similar case in which the offence was once again under Section 307 IPC and pointed out the facts and circumstances of the case, particularly, the injuries which were there which indicated fracture or dislocation of frontal bone of skull caused by appellant which clearly fell in the category of grievous hurt and argued that even in this case the appellants were allowed the benefit of sentencing of only three years. Learned counsel further submitted that in the case in hand injury caused is simple in nature as per the evidence of doctor.

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23. Counsel has argued that taking the cited cases of the Supreme Court, particularly, the former case, appellants deserve to be released under the benefits of the Probation of Offenders Act.

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Arguments of learned counsel for the State:

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24. Learned counsel for the State on the other hand argued that it cannot be denied that an incident did not take place. Though the female witness denied sexual offence hence, charge under section 354 IPC was not upheld but conviction under sections of 307 and 323 IPC can be sustained as per the injury report of the doctor. The injury report and the evidence of the doctor establish the assault and occurrence. The evidence of PW-1,

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PW-2 and PW-3 though having some minor discrepancies does not totally demolish prosecution case and hence, the impugned judgment of conviction and order of sentence under sections 307 and 323 IPC are fully sustainable.

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FINDINGS

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25. Having heard both counsels, having gone through the records of the case and the evidences and in the facts and circumstances I, find that incident no doubt had occurred though the place of occurrence seems to be varied. Doctor or P.W.-5 had found five injuries on the person of the injured informant PW-3 Basant Ram. Doctor had found 2”x1/4”xbone deep lacerated wound on the posterior part of vertex and bleeding, 1”x1” over the left angle of mouth and 1”x1” abrasion on the back of the left elbow apart from other injuries. Doctor opined that injuries were caused by hard and blunt substance and were simple in nature. So, from the evidence of doctor, I find that appellant no. 1 Kishore Ram had no intention to kill the informant as injuries caused to the informant was simple in nature and not on the vital part of the body.

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26. Hence prosecution has failed to prove the charge under section 307 of I.P.C against the appellant no. 1 Kishore Ram but from the injury report Ext.-2 charge under section 323 of I.P.C is proved against both the appellants.

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27. Accordingly, the impugned judgment of conviction under section 323 of IPC dated 27-6-2003 passed by the learned Additional Judicial Commissioner, Xth Fast Track Court, Ranchi in Sessions Case No. 10/2001 of Session Trial No. 151/ 2003 is sustained and upheld against both the appellants Kishore Ram and Manchun Ram @ Bijay Ram. But, conviction of the appellant no.1 Kishore Ram under section 307 of IPC is set aside.

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28. As far as sentence of the appellant no.1 Kishore Ram for his conviction under section 323 of IPC is concerned it is noted that the offence occurred 18 years ago in the year 2000 and from the record I, find that appellant no. 1 Kishore Ram has already undergone more then 2 months in custody of the imposed 3 months sentence under section 323 of IPC. Further, appellant no. 1 has faced the rigors and vigors of trial and hence at this stage it would no longer be necessary to sentence him.

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Hence, period already undergone by the appellant no.1 is considered as sentence sufficiently served. Regarding appellant no.2 Manchun Ram @ Bijay Ram, I find that learned trial court-below had directed to execute a bond of Rs.2000/- for a period of one year and there is nothing adverse on the record against the appellants in between, during this time neither has any submission been made by any of the counsels in this regard. Hence, no further sentence is being imposed on Manchun Ram @ Bijay Ram now. Hence, both the appellants, namely, Kishore Ram and Manchun Ram @ Bijay Ram are discharged from the liabilities of their bail bonds.

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29. Accordingly, this appeal is dismissed with aforesaid modification in conviction and sentence.

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi, Dated 7^th September, 2018, SB/ NAFR

Kishore Ram And Anr. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Kishore Ram And Anr. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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