Partly allowed

Rakhal Marandi And 7 Ors. v. State of Jharkhand

Jharkhand HC17 Dec 2019Cr.A(SJ)/14/2008

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for rioting and culpable hurt, the High Court set aside the conviction under Section 147 IPC as it was a free fight, upholding the conviction under Section 323 IPC, reducing the sentence to time undergone, and ordering compensation.

What did the court decide?

Conviction under Section 147 IPC set aside; conviction under Section 323 IPC upheld; sentence reduced to time undergone; fine of Rs.1000 imposed; Rs.2000 compensation per appellant awarded to victims.

Rakhal Marandi And 7 Ors. Vs State of Jharkhand — Cheque Dishonour | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 14 of 2008

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Rakhal Marandi

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Bahadur Marandi

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Rabilal Marandi

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Motilal Marandi (Stands abated vide order dated 10.12.2019)

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Gopal Marandi

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Parmeshwar Marandi

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Sishu Marandi (Stands abated vide order dated 10.12.2019)

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Manager Marandi (Stands abated vide order dated 10.12.2019) … … Appellants

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Ms. Vandana Sinha, Adv. For the State : Ms. Laxmi Murmu, A.P.P. ---

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06/17.12.2019 Heard Ms. Vandana Sinha, learned counsel appearing on behalf of the appellants.

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2. Heard Ms. Laxmi Murmu, learned A.P.P. appearing on behalf of the State.

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3. This appeal has been filed for the following relief:

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“This Criminal appeal is directed against the judgment and sentence dated 19^th December, 2007 passed by 1^st Addl. Sessions Judge, Jamtara in Sessions Case No.236/95/194/2001, whereby and whereunder learned 1^st Addl. Sessions Judge, Jamtara was pleased to convict the appellants under Sections 147 and 323 of the Indian Penal Code and has been pleased to sentence them to undergo R.I. for 2 years for the offence under Section 147 of the I.P.C and R.I. for one year for the offence under Section 323 I.P.C.”

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Arguments of the appellants

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4. The learned counsel for the appellants at the outset submits that in the order dated 10.12.2019, the death of Appellant Nos.4, 7 and 8 has been recorded and it has also been recorded that the appeal filed by the Appellant Nos.4, 7 and 8 has abated. Accordingly, she submits that the present

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appeal is confined to Appellant Nos.1, 2, 3, 5 and 6. There is no sentence imposing any fine amount upon the appellants.

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5. The learned counsel for the appellants while assailing the impugned judgment submits that the learned court below after considering the evidences on record has come to a finding that the present case is a case of free fight between two groups and has also held that both the parties were responsible for their own acts and assault. The learned counsel has also referred to the case and counter case between the parties arising out of same incident and the two cases were Session Case No.50 of 1995/170 of 2001 and Session Case No.236 of 1995/194 of 2001 (present case). The learned counsel for the appellants has referred to a judgment passed by Hon’ble Supreme Court which is reported in ( 1997) 11 SCC 564 Ananta Kathod Pawar and Ors. Vs. State of Maharashtra and has submitted that in the said case also, there was free fight between the parties and the Hon’ble Supreme Court, by referring to another judgment reported in 1976 Criminal Law Journal 1736, has held that in the case of free fight, the learned trial court was not at all justified in convicting the appellants of the said case for rioting or for the other offences with the aid of Section 149 of Indian Penal Code and that there was no scope for convicting members of one of those groups under Sections 147 or 148 of Indian Penal Code and for that matter for substantive offences with the aid of Section 149 Indian Penal Code. She submits that it has been held that in such a case, the accused persons would be liable for their individual acts and would not be liable vicariously. The learned counsel for the appellants by referring to this judgment has submitted that the conviction of the appellants under Section 147 cannot be sustained in the eyes of law under the facts and circumstances of this case. She also submits that the aforesaid aspect of the matter has not been considered by the learned

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court below and accordingly, the same calls for interference by this court.

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6. The learned counsel for the appellant has also submitted that there was a counter case arising out of the same incident which was tried as Session Case No.50 of 1995/170 of 2001 as one of the persons of the appellant party namely, Debi Singh had died, who was an accused in the present case on the basis of the present FIR. She submits that the FIR of the counter case as well as the post mortem report of Debi Singh has been exhibited before the learned court below at the stage of trial from the side of the present appellants which were marked as Exhibits-B and B/1 respectively. She submits that vide judgment dated 20.12.2007 passed in Session Case No.50 of 1995/170 of 2001, there has been an order of conviction. She has produced a photocopy of the judgment passed in the said counter case, passed immediately after the impugned judgment passed in the present case. A copy of the aforesaid judgment produced by the appellant is kept with this file.

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7. The learned counsel for the appellants submits that so far as the conviction under Section 323 of Indian Penal Code is concerned, the sentence may be modified.

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8. She submits that the Appellant Nos.1, 3 and 6 were arrested on 23.09.1993 and were released on bail on 10.12.1993. The Appellant No.2 had surrendered before the learned court below on 04.01.1994 and was granted bail on 10.01.1994. The Appellant No.5 was arrested on 24.09.1993 and was granted bail on 10.12.1993.

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9. The learned counsel for the appellants further submits that there is no dispute that there was free fight between the parties and the case was initially instituted in the year 1993 and at the time of conviction in the year 2007, the Appellant No.1 was 55 years of age, Appellant No.2 was 35 years of age, Appellant No.3 was 70 years of age, Appellant No.5 was 50

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years of age and the Appellant No.6 was 60 years of age and they have faced the rigors of the criminal case since 1993. She submits that considering the age of the appellants, period of custody and the fact that they have faced the rigors of the criminal case since the year 1993, their sentence may be modified.

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Arguments of the Opposite Party-State

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10. The learned A.P.P. appearing on behalf of the Opposite Party-State, on the other hand, does not dispute the findings recorded by the learned court below that there was free fight between the parties and also the aforesaid judgment passed by the Hon’ble Supreme Court relied upon by the appellants. However, she submits that if this Court is inclined to modify the sentence, then some fine may be imposed.

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Findings of this Court

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11. The learned A.P.P. for the State has not disputed any of the findings recorded by the learned court below during the course of arguments. The argument on behalf of the appellants is that in view of the findings recorded by the learned trial court that there was sudden fight between the parties and there was case and counter case between them, the conviction of the appellants under section 147 of IPC cannot be sustained in the eyes of law in view of the judgment passed by the Hon’ble Supreme Court reported in (1997)11 SCC 564 (Anant Kathod Pawar –versus- State of Maharashtra) . Further argument of the learned counsel for the appellants is that considering the facts and circumstances of the case, sentence under section 323 of Indian Penal Code is fit to be modified.

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12. The prosecution story in brief is that on 23.9.93 at 6 P.M, when sons of informant namely, Shomlal Marandi and Shibdhan Marandi were ploughing their field situated near the house of the accused Debi Singh Marandi and Rabilal Marandi

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and the informant was also sitting there, in the meantime, all of a sudden, accused persons namely Rabilal Marandi and Debi Singh Marandi having armed with lathi and kulhari came there and started to assault him by which the informant sustained injuries and fell down and when his both sons came there to save him and raised hulla, all the other accused namely, Rabilal Marandi, Parmeshwar Marandi, Gopal Marandi, Manager Marandi, Sishu Marandi, Balika Marandi, Motilal Marandi and Bahadur Marandi having armed with lathi also came there and assaulted them by which all the three sustained severe injuries. It is further alleged that when the wife of informant came there, the accused persons also assaulted her causing head injury to her and when Jiban Marandi came there, the accused also assaulted him and altogether five persons sustained injuries at the hands of the accused persons.

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13. On the basis of investigation, cognizance of the offences was taken and thereafter, vide order dated 02-062000, charges under Sections 147, 307/34 and 323 of IPC were framed against the appellants in Session Case No.236/95/194/01 arising out of G.R. Case No.424/93 (Kundahit P.S. Case No.77/93) to which the appellants pleaded not guilty and claimed to be tried.

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14. It is not in dispute that course of trial, the prosecution has examined altogether nine witnesses including the informant as well as the Medical Officer. Besides that, other injured persons Jiban Marandi, Balika Marandi, Shomlal Marandi and Shibdhan Marandi have also been examined to corroborate the contention of informant who also sustained injuries. Prosecution has also exhibited five injury reports i.e. Exts.-A to A/4 as well as Exts. 2 to 4 showing that five persons had sustained injuries at the hands of the accused persons. Prosecution has also exhibited the fard-beyan as Ext.-1 and the

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signature of the Informant on the fard-beyan as Exhibit-1/1. The defence examined two defence witnesses who have exhibited seven injury reports i.e. Exhibits-A to A/6 showing that seven persons of accused side had also sustained injuries at the hands of the prosecution party. The fard-beyan and formal F.I.R of Session Case No.50 of 1995/170 of 2001 as well as post mortem report of Debi Singh Marandi of Session Case No.50 of 1995/170 of 2001 and the true copy of parcha have been exhibited as Exhibits-B to B/1, C and D respectively to show that arising out of the same occurrence of assault, appellants had also lodged case against the informant and others for committing murder of Rabilal Marandi, the brother of the Appellant No.3 and for the assault upon the others and only to save their skin, the prosecution has filed this case against the appellants.

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15. So far as the evidence of prosecution is concerned, P.W.8 is the informant and has supported the prosecution case as well as the written report marked as Exhibit-1. He has deposed that on the date and at the time of occurrence when his sons Shibdhan and Somlal were ploughing their field and he was sitting there Rabilal (Appellant No.3) and Debi Singh having armed with lathi and kulhari came there and assaulted him and further the accused Sishu, Rakhal, Parmeswar, Gopal, Motilal and Bahadur also came there with lathi and they assaulted the wife of the informant and also assaulted the daughter in law of informant by which they all sustained injuries.

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P.W-1, Jiban Marandi, injured witness has supported the prosecution case and has stated that he was assaulted by Rakhal and Gopal on his head and has stated that Motilal, Bahadur, Parmeshwar and Manager joined.

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P.W-2 – Govardhan Marandi has stated that, Shibdhan and Shomlal were ploughing the field. Appellant No. 3, Debi Singh

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and the other appellants came with lathi and kudal and assaulted, Shibdhan, Shomlal and informant and they suffered head injuries.

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P.W-3- has been declared hostile. He has simply stated that on the date of occurrence, Shibdhan and Shomlal were ploughing the field and the informant was also present, but he left thereafter. He has also stated that the incident did not take place in his presence and the police did not record his statement.

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P.W-4 -Dulari Marandi has fully supported the prosecution case and has further stated that when she went to attend her injured husband (informant, who had fainted due to assault, she was also assaulted and she also fainted, but could not say as to who assaulted her. She is an injured witness as per her evidence but there is no injury report of this witness.

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P.W-5 is Shomlal Marandi and is an injured witness. He has also fully supported the prosecution case as narrated by the informant. He has stated that the informant was assaulted by Appellant No. 3 and Debi Singh and when they went to save the informant, he was assaulted by the other appellants and he sustained injuries.

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P.W-6 is Balika Marandi wife of Somlal Marandi and is also an injured witness. She has also fully supported the prosecution case as narrated by the informant and she has stated that when she and others went to save the informant, she was assaulted by Appellant No. 1, 5 and 6 and sustained injuries.

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P.W-7 is Shivdhan Marandi and is also an injured witness. He has also supported the prosecution case as narrated by the informant and has stated that the informant was assaulted by Debi Singh and Appellant No. 3 and this witness was assaulted by Appellant No. 1, 2, 4, 5 and 8 and he sustained injuries.

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P.W.1 Jiban Marandi, P.W. 4 Dulali Marandi, P.W. 5 Shomlal Marandi, P.W.6 – Balika Marandi, P.W. 7 Shivdhan Marandi are the witnesses who sustained injuries by the accused when they had gone to save the informant and others. P.W.-9 is the Medical Officer who had examined the injured and exhibited the injury reports as Exts.- A to A/4 showing that five persons had sustained multiple injuries, but all the injuries have been found to be simple. They had pain all over the body.

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16. Thus, from the evidences available on record, it is apparent that there was case and counter case between the parties and the persons from both the sides sustained injuries and there was mutual fight between the parties. This Court finds that the learned trial court has rightly recorded a finding that on perusal of both the counter cases i.e. Session Case No.50 of 1995/170 of 2001 and Session Case No.236 of 1995/194 of 2001, it is admitted fact that Marpit had taken place between both the parties and in view of medical evidence as well as injury reports available on record, it has also become admitted fact that members of both sides have sustained injuries at the hands of their adversaries and so, this is a case of free fighting between them and accordingly, held that both parties have become responsible for their own acts of assault. This Court further find that the learned trial court has rightly found that witnesses have not whispered anywhere in the F.I.R as well as in their evidences that accused had intention to kill anyone and besides that all the injuries were simple, caused by hard and blunt substances and accordingly, held that the case of 307 and 324 IPC has not been established here in the light of evidence and injury reports.

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17. However, in the light of the evidences available on record, the learned court below has held the appellants guilty of the offences under Sections 147 and 323 of Indian Penal Code. The learned court below, on the one hand, held that

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there was free fight between the parties and both parties have become responsible for their own act of assault and, on the other hand, held the appellants guilty of offence under section 147 of Indian Penal Code. The specific case of the appellants is that on the face of the aforesaid findings, which are not in dispute, the appellants could not have been convicted under Section 147 of Indian Penal Code. This Court fully agrees with the aforesaid submissions advanced on behalf of the appellants in view of Para-5 of the judgment relied upon on behalf of the appellants reported in (1997) 11 SCC 564 . Accordingly, the conviction of the present appellants under Section 147 of Indian Penal Code is hereby set aside.

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18. So far as the conviction under Section 323 of Indian Penal Code is concerned, this Court finds that the prosecution witnesses which include the informant and the injured witnesses have fully supported the case against the present appellants and the same is supported by the medical evidence which indicates multiple injuries with body pain, though all are simple in nature. Considering the nature of injuries, this Court finds that the learned court below has rightly convicted the present appellants under Section 323 of the Indian Penal Code.

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19. However, so far as sentence is concerned, the counsel for the appellants has referred to the period of custody which has not been disputed by the learned A.P.P. appearing on behalf of the State. Considering the fact that the case is of the year 1993 and much time has elapsed and the present appellants have remained in custody for some time as indicated above, this Court is inclined to modify and reduce the sentence to the period already undergone by the appellants and further a fine of Rs.1,000/- each is imposed upon the present appellants and also an amount of Rs. 1000/as victim compensation is awarded against each of the

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appellants. The total amount of Rs.2000/- by each of the present appellants is to be deposited before the learned court below within a period of three months from the date of communication of this judgment to the learned court below by the Registry of this Court. It is directed that if the aforesaid amount is not deposited by any of the present appellants, the bail bonds furnished by such appellant will stand cancelled and the appellant would serve the sentence imposed by the impugned judgment. If the amount is deposited as aforesaid, the bail bonds furnished by the concerned appellant will stand discharged. There are altogether five present appellants and five victims whose injury reports have been exhibited. The amount to be deposited by the appellants is directed to be equally divided and remitted to the five persons whose injury reports have been exhibited i.e. (1) Lurdhu Marandi son of Late Keshar Marandi, (2) Jeevan Marandi son of Kisto Marandi, (3) Balika Marandi wife of Somlal Marandi, (4) Shivdhan Marandi son of Lurdhu Marandi and (5) Somlal Marandi son of Lurdhu Marandi after proper identification.

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20. Accordingly, this criminal appeal is partly allowed . 21. Let a copy of this judgment be communicated to the learned court below through FAX.

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22. The office is directed to remit the lower court records to the court concerned.

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(Anubha Rawat Choudhary, J.)

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Saurav

Rakhal Marandi And 7 Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Rakhal Marandi And 7 Ors. v. State of Jharkhand

Case brief

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