Surajdeo Sahu and Ors. Vs the State of Jharkhand

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Cr. Appeal (S.J.) No.681 of 2012

[ Against the judgment of conviction dated 31.05.2012 and order of sentence dated 05.06.2012 passed by learned Principal Sessions Judge, Latehar in Sessions Trial No.141 of 2006]

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Surajdeo Sahu @ Suryadeo Sahu @ Suryadeo Sao

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Deepa Kumari 3. Sabita Devi .... .... …. Appellants --Versus-The State of Jharkhand …. …. …. Respondent For the Appellants : Mr. Rohit, Advocate For the State : Mr. Shiv Shankar Kumar, A.P.P.

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----- PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court

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Heard the parties.

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Judgment of conviction and sentence under Section 341/34, 323/34, 325/34 and 307/34 of the Indian Penal Code is under challenge in this criminal appeal.

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As per the written report lodged by Birbal Prasad on 30.01.2006, he was standing outside his sister’s house when he heard hulla emanating from the inside. When he rushed there he saw that his sister Baby Devi, brother-in-law Baldeo Sahu was being assaulted by Surya Deo Sahu, Sabita Devi and Deepa Kumari with Lathi and the pillar of cot. As a result his sister sustained bleeding injury and became unconscious. His sister was taken for treatment to Manika Hospital. From there, she was referred to higher centre at Ranchi where she was admitted in Bariyatu Hospital. The delay in lodging F.I.R. has been explained as they first took his sister for treatment to Ranchi and could not lodged the case. Genesis of the offence is said to be dispute over some fire woods.

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On the basis of the written report, Manika P.S. Case No.06/2006 was registered under Sections 341, 323, 325, 307 of the Indian Penal Code against the appellants. The police, on investigation, found the case true and submitted charge sheet. After cognizance, the accused persons were put on trial under Sections 341, 323, 325, 307/34 of the Indian Penal Code. Altogether eleven witnesses were examined on behalf of prosecution and Exhibit 1, 2 and 3 has been adduced into evidence.

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Judgment of conviction and sentence has been assailed on the ground that the injury report has not been proved by the Doctor who examined the

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injured. P.W. 11 has deposed that he had not examined the injured and had also not seen him writing and reading during his posting over there. Therefore, prosecution has failed to prove the injury report.

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It is further argued that out of eleven witnesses examined, independent witness has not supported the prosecution case. P.W. 1, P.W. 4, P.W.5, P.W. 6 and P.W. 7 have been declared hostile. In the absence of injury report having not been properly proved, no conviction can be recorded under Section 307 or 325 of the IPC. Reliance has been placed on Munna Kumar Versus State of Bihar , (2005) 12 SCC 209 .

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It is further argued that the incidence took place on the spur of moment between close family relations on the trivial issue of fire woods. The assault was not premeditated therefore, offence under Section 307 of the IPC will not be made out. At best, charge under Section 323 of the IPC can be said to be proved under which maximum sentence is one year and the appellants are entitled to the benefits of Probation of Offenders Act.

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Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that P.W. 3 sustained grievous injury in the said assault and she has deposed that the fight took place on the issue of fire wood and all the three appellants assaulted her. She deposed that she was assaulted by Deepa Kumari with Lathi and she was given blow with pillar of cot by Surya Deo Prasad Sahu and at that time Deepa Kumari and Sabita Kumari had caught hold of her.

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Having considered submissions advanced on behalf of both the sides the materials on record, it is evident that the Doctor, who examined the victim, has not been examined as witness in the Court. The witness, who has proved the injury report, has specifically stated that he had never worked with the said Doctor, nor he was conversant with his writing. Therefore, proof of the injury report by him cannot be validly accepted. In the absence of proof of injury report, in the present case, the nature of injury, the part of body on which it was inflicted, cannot be read into evidence. If the injury is not caused in an attempt to life particularly in case of use of fire arm, a charge under Section 307 IPC can be proved on the basis of evidence on record without any injury report. In the case like the present, where it is said that injury was caused by lathi and pillar of cot, it was necessary for the prosecution to formally prove the injury report so that the nature of injury could have been established. Without such a proof, intention or knowledge of the assailant cannot be ascertained. Furthermore, it has come in evidence that the incidence took

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place on the spur of the moment without any deliberation and premeditation over a trivial dispute which took place in the kitchen over use of firewood. Under the circumstance, this Court is of the view that judgement of conviction and sentence under Section 307 Indian Penal Code, is not sustainable and is accordingly set aside.

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In view of the oral evidence, Appellants are convicted under section 323 of the Indian Penal Code.

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On the point of sentence, considering that there was no past conviction proved against the Appellants, and the genesis of offence was of a trivial dispute over fire wood, admonition to the convicts under Section 3 of the Probation of offenders Act will meet the ends of justice.

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Appeal is dismissed with modification in finding and sentence.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 14^th March, 2024

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NAFR/Anit

Surajdeo Sahu and Ors. v. the State of Jharkhand

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Surajdeo Sahu and Ors. v. the State of Jharkhand

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