Prakash Rai And Anr. Vs State of Jharkhand

----- For the Appellants : Mr. Pankaj Verma, Advocate For the State : Mrs. Nehala Sharmin, Spl.PP (in Cr. Appeal (SJ) No.186 of 2008) Mrs. Vandana Bharti, APP (in Cr. Appeal (SJ) No.187 of 2008)

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…… ORAL JUDGMENT IN COURT Order No.10/14^th August 2025

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Both the Criminal Appeal (SJ) are being heard and disposed of together as the matter arise from the common judgment dated 17.01.2008 passed by Sri Ajit Kumar, learned Addl. Sessions, Judge, Fast Track Court-IV, Bokaro in Sessions Trial Case No.410 of 2005 arising out of Chas (M) P.S. Case No.26 of 2004, G.R. Case No.361 of 2004, by which the appellants have been convicted for the offence 326/149 of the Indian Penal Code and sentenced to undergo R.I. for three years.

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However, the appellants and two other original appellants Shankar Rai and Sikari Rai were acquitted by the learned Trial

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Court for the offences under Sections 147, 148, 447, 448, 323, 325 of the Indian Penal Code.

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The prosecution case in brief is that the Informant i.e. Trilochan Sharma of this case gave his written report dated 25.04.2004, to the Officer-in-Charge Chas (M), P.S. stating therein that Bhutu Rai, Prakash Rai, Shankar Rai, Karma Rai, Badhan Rai, Ghungru Rai, Guman Rai, Gagan Rai, Sikari Rai, Anil Rai, Shrider Rai, Mahabir Rai, Pandav Rai, Suresh Rai, Amit Rai, Jailal Rai, Lilu Rai, Naresh Rai, Pran Rai, Malindra Rai and Alka Devi all are resident of Village Tiyara, P.S.-Chas (M) came on the land and house of the Informant on 25.04.2004 at 10.00 a.m. All these persons were holding Lathi, Farsa, Dang, Talwar, Kulhari, Sabbal, Gaita, Iron Rod. They all entered into the house of the Informant and started assaulting the informant and abused him. Upon this the brother of the Informant Bhuban Sharma came there for the rescue of the informant then all the accused persons assaulted Bhuban Sharma on his head with iron rod. He was also assaulted on his leg and stomach to which he fell on the ground. The Informant ran away from the place of occurrence and reached Police Station and informed the police.

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Heard Mr. Pankaj Verma, learned counsel for the appellant and Mrs. Nehala Sharmin, learned Spl. PP and Mrs. Vandana Bharti, learned APP for the State.

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Learned counsel for the appellant has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and non-sustainable in the eye of law. It is submitted that the appellants are old aged persons. It is submitted that the counter case was compromised between the Informant and the defence side and even a Joint Compromise

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Petition was also filed in S.T. Case No.403/2005. However, the same has not been considered by the learned Trial Court. It is submitted that both the sides are gotiya and hence lenient view may be taken against the appellants and the appellants may be released on bonds.

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On the other hand, learned Spl.PP has vehemently opposed the prayer of the appellant. It is submitted that the learned Trial Court has objected the Joint Compromise Petition filed by the appellants and the Informant. It is submitted that the this is a case of brutal assault upon the Informant by the hands of the appellants which is fully supported by the evidence of PW-3 namely Bhuvan Chandra Sharma, PW-4 Moti Lal Mahto @ Moti Lal Sharma. It is submitted that the PW-5 is the Informant in this case and who has also supported the prosecution case. It is submitted that lateron the Informant had filed the Joint Compromise Petition before the learned Trial Court but as the Section 307 IPC is non compoundable in nature and hence the learned Trial Court has rightly rejected the petition. It is submitted that non-examination of I.O. and Doctor is not fatal to the prosecution case and hence the judgment of learned Trial Court may be upheld.

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Having heard learned counsel for both the sides and from perusal of the records of this case. 7. It appears that that the Informant Trilochan Sharma who is PW-5 had instituted the FIR, Chas (M) P.S. Case No.26 of 2004 dated 25.04.2004 under Sections 147,148,149,447,323, 325,307 of the IPC against the appellants and two other Sankar Rai and Sikari Rai, who had died during the pendency of this Appeal.

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It transpires that the police had submitted the chargesheet after investigation of this case against the appellants on 30.11.2004

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under Section 147,148,149,447,448,323,325,307 of the IPC. The learned Chief Judicial Magistrate, Bokaro had taken cognizance under Section 147,148,149,447,448,323,325,307 of the IPC on 14.12.2004.

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Thereafter supplying the police papers to the accused persons including the appellants, the charges was framed against the appellants and two others original appellant no.1 namely Late Shankar Rai (in Cr. Appeal (SJ) No.186 of 2008) and original appellant no.2 namely Late Sikari Rai (in Cr. Appeal (SJ) No.187 of 2008) under Section 147,148,149,447,448,323,325,307 of the IPC by Sri Alok Kumar Dubey, then learned Addl. Sessions Judge cum Fast Track-IInd Bokaro, on 07.01.2006 to which they pleaded not guilty and claimed to be tried.

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During trial, the prosecution got examined seven (6) witnesses in support of its case, who are as follows:-

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(i). PW-1 is Mantu Mahatha,

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(ii). PW-2 is Dr. Pamod Kumar,

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(iii). PW-3 is Bhuwan Chandra Sharma, (iv). PW-4 is Motilal Mahato @ Motilal Sharma, (v). PW-5 is Trilochan Sharma (Informant),

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(vi). PW-6 is Arun Chandra Sen.

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The prosecution case in support of its case got marked the following Exhibits which are as follows:-

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(i). Ext.1 is Injury Report,

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(ii). Ext.2 is the Written Statement,

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(iii). Ext.3 is the Formal F.I.R.

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Thereafer, the appellants were examined under Section 313 of Cr.P.C. on 03.07.2007 by the learned Court below and to which the appellants had denied the circumstances put forth before

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them.

The Defence in support of their case got examined four (04) witnesses, who are as follows:-

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(i). D.W.-1 is Joylal Roy, Eye witness,

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(ii). D.W.-2 is Kanhai Mahato, Eye Witness,

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(iii). D.W.-3 is Parshit Roy, Formal Witness and (iv). D.W.-4 is Sri Pramod Kumar, Medical Witness

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The Defence got marked the following documents in support of their case, which are as follows:-

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(i). Ext.-A is the Sale Deed,

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(ii). Ext.-B is the Rent Receipt,

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(iii). Ext.-C is the Sale Deed,

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(iv). Ext.-D is the certified copy of F.I.R,

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(v). Ext.-E is the certified copy of the Chargesheet,

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(vi). Ext.-F is the certified copy of the Compromise petition,

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(vii). Ext.-G is the certified copy of the Deposition,

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(viii). Ext.-H is the Injury Report,

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(ix). Ext.-I is the certified copy of the judgment of S.T. No.403/2005.

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Thereafter, the learned Court below, after considering the case of both the sides, has convicted the appellants as mentioned above and sentenced them as mentioned above.

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Now, this Court has to consider as to which the judgment passed by the learned Court below is proper or not?

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It appears that the FIR was lodged against the appellants on 25.04.2004 but the same was seen by learned CJM, Bokaro on 28.04.2004 after delay of three (03) days and there was no explanation furnished by the prosecution for such a delay.

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It further reveals that the PW-1 namely Mantu Mahatha

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was declared hostile witness and his evidence is not relevant.

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It transpires that the PW-2 is the Dr. Pramod Kumar, who had examined injured the Bhuwan Sharma and had found as follows:-

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(i). Lacerated wound on the left side of the head size of the head 2’’x1/2” long deep. X-ray of this part shows fracture of parietal bone.

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(ii). Abrasion on the right leg i.e. knee joint six 1”x1” upper layer of skin.

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Injury No.1 is the grievous in nature and both the injuries are caused by hard and blunt substance.

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During cross-examination, the Doctor further stated that he had not mentioned the time of examination in the injury report. Injury No.1 can be caused by hard and blunt object. X-Ray Report is not present before me. Colour of injury changed but I have not mentioned about the change of colour. Signature of injured is not on injury report.

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Thus, the PW-2 has proved the injured report of the injured.

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PW-3 is Bhuwan Chandra Sharma, who also supported the prosecution case and stated that the appellants had assaulted the Informant by Iron rod, and other lethal weapons.

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During cross-examination he admitted that the defence side also instituted the case against them at Chas (M) Case No. 24/04 in S.T. Case No.403/2004 was pending and the said case was compromised at the time of bail. He has shown ignorance regarding the land of Khata No.63 plot No.1435 area 4.42 acres which was executed by Darapati Chatterjee in favour of appellant Shankar Rai and Bhutu Rai by registered sale deed. His statement

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was recorded after two days by the police.

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During cross-examination, he further admitted to have entered into the compromise with the other side.

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Thus, PW-3 is the injured person but he also admitted that he entered into the compromise before the learned Trial Court and he had not complaint regarding the compromise before the learned Court below.

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PW-4 is the Moti lal Mahta @ Sharma claimed to be the eyewitness and supported the prosecution case that appellants and some others were abusing the Informant Trilochan Sharma and when Bhuvan Sharma i.e. the son of PW-4 arrived there and then all the four accused person had assaulted them by iron rod due to which they fall down.

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During cross-examination, he admitted that there are pendency of several cases against them, he admitted that occurrence took place due to land dispute and also admitted that he got acquitted due to compromise with the appellants side in the case instituted by the appellants side.

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However, he has shown ignorance that the instant case was compromised.

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Thus, the evidence of PW-4 is not reliable as he admitted that he got acquitted which case is instituted by the accused side i.e. the appellant side and on the other hand, he denied of filing of compromise petition in the instant case.

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PW-5 is Trilochan Sharma i.e. the Informant who has supported the prosecution case during his evidence and stated that injured Bhuwan Sharma was assaulted by Iron rod by the appellants and other accused persons and abused him and he has proved the written application marked as Exhibit-2.

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During cross-examination, he admitted that Bhutu Rai has also instituted a case against the Informant Trilochan Sharma, Bhuvan Sharma, Nilkanth, Bholu, Sanjay Sharma. He further stated that he could not press the compromise petition due to fear. He further admitted that he has passed BA in Economic (Honors) and admitted that he put his signature in the compromise petition on 13.09.2004 and 21.11.2005 and in the said case Bhutu Rai i.e. the Appellant No.2 (in Cr. Appeal (SJ) No.186 of 2008) has given evidence and the Informant side were also accused.

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From perusal of the evidence of PW-5, it is evident on one hand he got the case compromised on the case in which he was accused and which was instituted by the appellant no.2 Bhutu Rai. However, after acquittal in the said case he has decided to make in the instant case by which the appellants have been convicted.

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Thus, it reveals that the Informant had taken advantage of the appellants side in the case instituted by them and has contested the instant appeal.

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PW-6 is the Arun Chandra Sen, who is the Advocate Clerk and filed the formal FIR which is marked as Exhibit-3. 24. On the other hand, the defence side had examined four (04) witnesses namely DW-1 is Joy Lal Roy, DW-2 is Kanhai Mahto, DW-3 is Parishit Roy and DW-4 is Pramod Kumar. 25. DW-1 is the Joy Lal Ray, who stated that there is altercation and assault from both the sides and the Informant Trilochan and Bhuwan and one cousin brother of the Informant had assaulted the Bhutu Rai (i.e. Appellant No.2) due to which he sustained head injury and he denied that Bhutu Rai had made any assault.

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During cross-examination, he stated that he had not

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accompanied the said Bhutu Rai to the hospital and. Thus, DW-1 reveals that there was assault between both the sides.

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DW-2 is the Kanhai Mahto, who had also stated that while the appellant Bhutu Rai was constructing the house in his own land then he was assaulted by the Informant and his cousin side, and due to which he sustained injury and blood was oozing out then he got treated by the doctor. He further stated that the land stands in the name of grandfather of the said Bhutu Rai i.e. the appellant no.2 (in Cr. Appeal (SJ) No.186 of 2008) and he has proved the sale deed on 18.07.1985 executed by Sita Ram Gorai marked as Exhibit-A.

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During cross-examination, he denied the suggestion of giving false evidence on behalf of the defence side. 27. DW-3 is the Parishit Roy, who proved the rent receipt no.505781 which is marked as Exhibit-B and also proved Kevala of the year 1938 bearing deed no.448 which is marked as ExhibitC as it was 30 years old.

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During cross-examination, he said that his name is Kiran Rai. He also stated that in ST No.403/05 on 28.11.2005 he deposed that he has not seen the occurrence.

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DW-4 is the Pramod Kumar, Deputy Suptt. Sub-Division Chas, he has proved the injury report of the injured Bhutu Rai (i.e. appellant No.2) (in Cr. Appeal (SJ) No.186 of 2008) which is as follows:-

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(i) Lacerated wound on the left side of the head size 1”x1/2”x1/4 by hard and blunt substance, (ii) Abrasion on the left side of the leg size 1”x1/2”. (iii) X-Ray shows lacerated wound on the side of head heavy crack of the skull by hard and blunt substance.

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Injury No.1 is the simple and nature and injury no.3 is the grievous in nature.

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It transpires that the learned Trial Court has not considered the evidence of the appellants.

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It further transpires that the learned Court below has not discussed the defence witnesses.

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It has been held in the case of State of U.P. vs. Babu Ram reported in (2000) 4 SCC 515 and in the case of Balwinder Singh (Binda) vs. Narcotics Control Bureau reported in (2023) OnLine SC 1213 , that the evidence of defence witnesses has to be seen at par with prosecution witnesses.

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Perusal of Exhibit-C, it appear that the land was recorded in the name of grandfather of the appellant no.2 Guman Rai [in Cr.A(SJ) No.187 of 2008] where the occurrence had taken place.

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Thus, the offence under Section 448 will not be applicable as the appellant no.2 and others were in their own land. 33. It further reveals that the X-Ray Report and the C.T Scan Report of the injury on the head of the informant had not been brought on record, thus, the injury under Section 326 is not made out and it is converted into Section 324 of the I.P.C.

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Thus, all the appellants namely Prakash Rai, Bhutu Rai (in Criminal Appeal (S.J) No. 186 of 2008) and Gagan Rai and Guman Rai (in Criminal Appeal (S.J) No. 187 of 2008) are acquitted for the offences under Sections 147,148,447,448,323,325 and of the I.P.C.

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It reveals that the informant has given exaggerated version of assault and deadly weapon in the F.I.R as the several accused persons were alleged to assault with Lathi, Farsa, Tang, Kulhadi,

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Sawak, Gaith, Iron Rod.

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However, from perusal of the evidence of P.W-2 Dr. Pramod Kumar, It reveals that P.W-3 has sustained only one injury on his head of 2/1 inch and Abrasion on the left side of the leg size 1”x1/2” and upper layer of the skin caused by hard and blunt substance.

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It is evident that X-Ray Report has not been brought on record. 38. Thus, the conviction under Section 326/149 of IPC is not sustainable and accordingly, and at best, it can be converted under Section 324/149 of the I.P.C. 39. It appears that the appellants are old aged persons and hence, they can be granted benefits under the provisions of Section 4 of the Probation of Offenders Act.

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Section 4(1) of the Probation of Offenders Act, reads as follows:-

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“4. Power of Court to release certain offenders on probation of good conduct:-

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(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behavior.

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Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he

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enters into the bond.”

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Considering the facts and circumstances of this case and also considering that the appellants are old aged persons, the appellants are directed to be released on bail on furnishing probation bonds of Rs. 5000/- each for the period of one year under Section 4 of the Probation of Offender’s Act.

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However, the appellants are directed to appear and receive the sentence when called upon during such period and in the meantime, they must keep the peace and be of good behaviour of the said period.

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Thus, this Criminal Appeal (SJ) No.186 of 2008 and Criminal Appeal (SJ) No.187 of 2008 are allowed in part.

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Let the Original Lower Court Records and a copy of this judgment be sent to the learned Court below at once by the Office.

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(Sanjay Prasad, J.)

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Nishant/-

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Prakash Rai And Anr. v. State of Jharkhand

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Prakash Rai And Anr. v. State of Jharkhand

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