Partly allowed

Lalan Sao and Ors. v. State of Jharkhand

Jharkhand HC14 Mar 2024Cr.A(SJ)/19/2013

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for rioting and assault, the High Court acquitted some appellants and modified convictions by removing the rioting charge, ruling that liability in a sudden free fight is individual. The court discharged sureties and deemed the existing sentence appropriate for the remaining guilty appellants considering their ages.

What did the court decide?

Convictions for rioting set aside; convictions for grievous hurt upheld; sentence deemed met; sureties discharged.

Lalan Sao and Ors. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2024)

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Cr. Appeal (S.J.) No. 19 of 2013

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(Against the judgment of conviction and order of sentence dated 22.12.2012 passed by learned Addl. Sessions Judge-I-cum-Special Judge SC/ST (POA) Act, Palamau at Daltonganj in SC/ST Case No. 03 of 2004)

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Lalan Sao

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Umesh Sao

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Ramesh Sao

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Raj Kumar Sao

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Bhardul Sao

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Birju Sao

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Dipu Sao

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Baleshwari Sao

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Chanarik Sao 10.Doman Sao Versus

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The State of Jharkhand

… …. Appellants

… …. Respondent

P R E S E N T

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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----For the Appellants : M/s A.K. Kashyap, Sr. Advocate Supriya Kashyap & Anurag Kashyap, Advocates For the State : Mr. Gautam Rakesh, APP -----

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By Court :

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Heard the parties

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The judgment of conviction and order of sentence under Sections 147, 148, 323, 325, 149 of Indian Penal Code is under challenge in the instant appeal.

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As per the fardbeyan of Mangar Bhuiyan recorded on 23.07.1999 at Emergency Ward of Sadar Hospital at Daltonganj stated in an injured condition, that on that day at around 9:10 am when he went to his agricultural filed he saw that Baleshwari Sao, Lalan Sao, Dipu Sao, Umesh Sao, Doman Sao, Chanarik Sao, Raj Kumar Sao, Birju Sao, Ramesh Sao and Bhardul Sao and five unknown persons were forcibly ploughing the field of the informant which is Gair Mazurwa in nature. This was protested to by the informant, his brother Muneshwar Bhuian, Surendra Bhuian. On this, the accused persons variously armed with deadly weapons like tangi, garasa, lathi etc, conjointly assaulted the informant and his brothers. The informant was struck tangi blow on his legs by Baleshwar Sao, Lalan Sao assaulted him with lathi over his head and was also hit by Dipu Sao, as a result he fell down. Umesh Sao assaulted Lalan Bhuian with lathi. Doman Sao assaulted Lalan Bhuian with tangi on his head. Bandhu Bhuian was assaulted by Chanarik Sao with garasa on his head. Surendra Ram and

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Muneshwar Ram were also assaulted by tangi and garasa.

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On the basis of written report, Patan PS Case No. 85 of 1999 was registered against all the accused persons under Sections 14,7, 148, 149, 323, 324, 307, 325 of the Indian Penal Code and Section 3/ 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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Police on investigation found the case true and submitted charge sheet against all the accused persons who were put on trial.

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Altogether five witnesses were examined on behalf of the prosecution and the relevant documents including the injury reports were adduced into evidence, marked as exhibits. After prosecution evidence, the statements of the appellants have been recorded. The defence is of innocence. Three defence witnesses have also been examined who have proved one sale deed and rent receipt which has been marked as Ext. A and B.

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Judgment of conviction and order of sentence has been assailed on the ground that PW 5-independent witness has not supported the prosecution case and was declared hostile. Lalan Bhuian, who is also said to be injured, has not also been examined by the prosecution.

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Specific reference is made in the statement of PW2 in para 4 wherein he has not stated that who had given how many blows. It is also admitted that they were on litigating term and there was case pending between them. As per testimony of PW3- Surendra Ram in para 1, when he went to the place of occurrence, he found Mangar Bhuian in a pool of blood. He has also stated in para 3 that he had not himself seen Mangar Bhuian being assaulted.

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With respect to PW4, it is argued that the medical evidence does not corroborate his oral account. As per the testimony of the witness, he was assaulted by garasa which was a sharp edged weapon, however, the doctor found only simple injury to be inflicted to him and that too with hard and blunt substance. It is further been argued that PW 4 in para 9, 10 and 11 has admitted that it was a land dispute with respect to 5 acre and 2 decimals, however, they have produced no document in support of their claim over the said land. It is also stated that Chanarik Sao has died. It is further the statement of DWs 2 and 3 that the land in question was in the name of the wife of Baleshwari Sao and it was in her possession.

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Investigating Officer has not been examined and therefore, the place of occurrence could not be established by the prosecution. X-ray Film has not been adduced into evidence and therefore, the finding of the grievous injury caused by fracture cannot be accepted. Although the defence has adduced into evidence the

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document of title and possession over the land in question, but the prosecution has failed to file even a chit of paper that they have any valid claim over the said property.

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On the point of sentence, it is submitted that appellants Baleshwari Sao and Dipu Sao at the time of judgment were 80 and 70 years old and presently they are 93 and 83 years old respectively. The appellants have suffered protracted litigation for almost three decades. They are farmers without any past criminal antecedent.

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Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that the FIR has been lodged without any delay and altogether five injured were examined by the doctor on the very same day. There is direct and specific allegations against the appellants that by forming an unlawful assembly armed with deadly weapons, they indiscriminately assaulted the informant party resulting in grievous injuries to three of them and simple injury to two of them. Prosecution case has been fully proved by the injured witnesses who have given a consistent and coherent account of the incidence.

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Having considered the submissions advanced on behalf of both sides and on perusal of record, it is evident that there was no delay in either lodging the FIR or examination of the injured in Emergency Ward of Sadar Hospital at Daltonganj. PW1 is the doctor who has deposed that on 23.07.1999 he was posted as Medical Officer at Sadar Hospital and he on the said day examined Bandhu Bhuian, Bhuneshwar Bhuian, Mangar Bhuian, Surendra Ram and Lalan Bhuian and found the following injuries:

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Bandhu Bhuian

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i. Lacerated wound on the back of his head. Size 3” x ½” x bone deep

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ii. Bruise on the left scapular region Size 4” x ½”

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iii. Bruise on the left arm Size 1” x ½”

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iv. Swelling on the right leg Size 2 Cm diametres

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v. Bruise on the right shoulder Size 3” x ½”

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Muneshwar Bhuian

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i. Lacerated wound on the right side of the scalp. Size 2” x ½” x muscles deep

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ii. Bruise on the left scapular region Size 3” x ½”

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iii. Bruise on the left side of the back Size 5” x ½” Mangar Bhuian

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i. Lacerated wound above the right eyebrow.

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Size 1” x ¼ ” x ¼”

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ii. Swelling of the right forearm

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iii. Lacerated wound above the right elbow Size ½” x ¼” x ¼”

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iv. Tenderness in the left shoulder

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v. Lacerated wound on the right leg Size 2 ½ ” x 1” x ¼”

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vi. Lacerated wound on the right leg Size ½ ” x ¼” x ¼”

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vii. Lacerated wound below left knee joint

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viii. Abrasion on the post side of the right knee joint Surendra Ram

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i. Clinically compound fracture of the left leg and the lacerated wound of 2” x ½” x muscles deep

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ii. Abrasion on the right knee joint

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iii. Lacerated wound of 3” x ½” x muscles deep Lalan Bhuian

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i. Lacerated wound on the right side of the forehead Size 2” x ½” x ¼”

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ii. Abrasion on left little finger Size 1” x ¼” iii. Swelling on the left palm 2” diameter

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iv. Tenderness of the left of the emid of forearm

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v. Tenderness above the right elbow joint

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With regard to opinion of injury, X-ray was received and after receiving the X- ray plate in continuation of the earlier injury report, opinion with regard to injuries was given on 29.05.2000. The injuries sustained by Mangar Bhuian, Surendra Ram and Lalan Bhuian were found to be grievous in nature.

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The objective finding of the doctor proves the incidence in which the informant party sustained injuries. The Evidence Act adopts a practical definition of „Proved‟ under Section 3 of the Evidence Act, which is a prudent men‟s test. It has been held in M. Narsinga Rao v. State of A.P. , (2001) 1 SCC 691 :

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15. The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word “proved” in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher

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Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. [(1911) 1 KB 988 : 1911 WN 53] observed like this:

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“Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”

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Regarding the manner of assault, three injured witnesses have been examined by the prosecution they are Bandhu Bhuian-PW4, Muneshwar Bhuian PW2, Surendra Ram-PW3.

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It is settled law that the deposition of the injured witnesses deserve a higher degree of credence. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare the actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.

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PW2 has deposed that at 10 O‟clock at day time when he had gone on the land of Mangar Bhuian where Dipu Sao, Lalan Sao, Baleshwari Sao were present with lathi, Garansa. When Mangar Bhuian opposed, the land being ploughed by them. Accused persons did not relent and started assaulting them. He was struck by Deepu with Lathi over his head. Lalan Bhuian, Surendra Ram, Mangar Bhuian and Bandhu Bhuian with lathi and garasa were the assailants.

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PW 4 has deposed that all the accused persons and some others were ploughing the field belonging to Bhuians and when this was opposed by Mangar Bhuian, Lalan Bhuian, Surendra Ram and Muneshwar Bhuian, the accused persons started assaulting them. Chanarik Sao inflicted garasa blow on the head of Bandhu Bhuian. Muneshwar Bhuian was inflicted with garasa blow on his head by Birju Sao. Bhardul Sao had assaulted with garasa blow on the head of Surendra Bhuian and Lalan Sao inflicted tangi blow to Mangar Bhuian on his leg and Dipu Sao inflicted garasa blow to Lalan Bhuian on his hand.

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On combined reading of the testimonies of all the witnesses, the event that can be re-constructed is that there was a land dispute between Mangar Bhuian and the accused persons, which was being ploughed by Baleshwari Sao and other at the relevant time. This was opposed to by the informant party. From para 2 of PW 4, it will be apparent that both the sides had gone to the place of occurrence for show down. In such case where both the parties come prepared, which triggers into a full-fledged fight offence of rioting will not be made out. It has been held

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in Pundalik Mahadu Bhane v. State of Maharashtra , (1997) 11 SCC 567

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6. After having gone through the entire record, we are of the opinion that the above concurrent findings of the learned courts below are substantially correct and are based upon reasonable appreciation of the evidence. But then, having recorded such findings the learned courts below were not justified in convicting the appellants for rioting, for the law is now well settled that in the case of a sudden and free fight each of the persons involved therein can be held liable for his individual act and not vicariously liable for the acts of others. ( Lalji v. State of U.P. [(1974) 3 SCC 295 : 1973 SCC (Cri) 921 : AIR 1973 SC 2505] , Ishwar Singh v. State of U.P. [(1976) 4 SCC 355 : 1976 SCC (Cri) 629 : AIR 1976 SC 2423] ) The convictions of the two surviving appellants under Section 148 IPC cannot, therefore, be sustained.

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Section 149 of Indian Penal Code will not applicable, as each one shall be responsible for individual act. In view of the injury report Muneshwar Bhuian sustained simple injury, his deposition is that he was inflicted injury with garasa blow cannot be accepted. PW3 Surendra Ram has deposed that in the morning at 8 to 9 O‟clock the incidence took place and Mangar Bhuian was assaulted by Lalan Sao. However, he has fairly admitted in para 3 that at that time he reached to the place of occurrence, fight had already taken place and he has not himself seen Mangar Bhuian being assaulted. PW3 who sustained grievous injury on compound fracture on left leg stated that he was assaulted by the accused persons. He names the son of one of the accused but not named Birju Sao and his younger son to have assaulted him. The manner in which he has stated that he had not seen Mangar Bhuiyan being assaulted, goes to show that there is a ring of truth in his deposition and there was no attempt on his part to exaggerate the account.

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PW4 Bandhu Bhuian who sustained simple injury has stated that he was inflicted garasa blow by Chanarik Sao (since dead). PW 4 has further deposed that Muneshwar Bhuian was inflicted with garasa blow on his head by Birju Sao . As Per injury report he sustained simple injury. Bhardul Sao had assaulted with garasa blow on the head of Surendra Bhuian and Lalan Sao inflicted tangi blow to Mangar Bhuian on his leg and Dipu Sao inflicted garasa blow to Lalan Bhuian on his hand. Part of his deposition that Bhardul Sao gave Garasa blow to Surendar Bhuiyan (PW-3) cannot be accepted, as the injured who himself has deposed that it was Birju and his son who had assaulted him.

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Under the circumstances, this Court is of the view that there is direct evidence of injured against appellants, Birju Sao, Lalan Sao and Dipu Sao that they being variously armed with dangerous weapon inflicted grievous injuries to three

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members of the informant party and also two of them sustained simple injuries.

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As discussed above earlier, since it is a case of free fight, therefore, Section 149 IPC will not be applicable and each individual assailant shall be liable for their individual acts. As far as appellants Lalan Sao, Dipu Sao and Birju Sao are concerned, they are accordingly held guilty for the offence under Sections 326 of Indian Penal Code for causing grievous hurt by dangerous weapon.

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As far as the rest of the appellants are concerned, they are given benefit of doubt and the judgment of conviction and sentence passed against them is set aside.

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On the point of sentence, at the time of judgment which was delivered in the year 2012, appellant-Dipu Sao was aged about 70 years and at present his age must be of about 83-84 years. Defence has produced documentary evidence in support of their claim of title and possession over the land, in question. On the other hand, not a chit of paper has been filed by the informant party to show that they had acted under the colour of right over the said land.

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Taking the age, antecedent, genesis of the offence and the protracted nature of litigation, this Court is of the view that the sentence already undergone will meet the ends of justice for the appellants, Lalan Sao, Dipu Sao and Birju Sao.

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The instant Criminal Appeal is partly allowed with modification in the finding of sentence.

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Sureties are discharged from the liability of their bail bonds.

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Let a copy of the judgment along with the LCR be sent to the concerned Trial Court at once.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, the 14^th March, 2024 NAFR/ AKT

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Lalan Sao and Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Lalan Sao and Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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