Kripa Thakur vs State of Jharkhand

The instant Criminal Appeals have been preferred against a common judgment of conviction dated 06.11.2003 and order of sentence dated

10.11.2003, passed by learned Additional District and Sessions Judge, Fast Track Court- VIII, Giridih, in S.T. No. 289 of 1992, whereby Murli @

Banwari Thakur @ Banwari Hazam has been convicted for the offence punishable under Sections 307, 324 and 148 of the Indian Penal Code and has

been awarded sentence to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code and rigorous imprisonment for

one year each under Sections 148 and 324 of the Indian Penal Code. The appellants in Cr. Appeal (SJ) No. 1707 of 2003 namely Kripa Thakur, Gulab

Thakur, Wazir Thakur, Puran Thakur, Dhanusdhari Thakur and Baso Thakur have been convicted under Section 323 of the Indian Penal Code and

have been awarded sentence to undergo rigorous imprisonment for six months each. Further all the appellants/accused persons charged for the

offence under Section 452 of the Indian Penal Code and learned Trial Court has acquitted all the appellants/accused persons from the charge of

offence under Section 452 of the Indian Penal Code.Â

The prosecution case is based upon the fardbeyan of Sri Prakash Sao recorded by the police at State Hospital, Jamua on 30.01.1991 at 9.30 hrs. the

informant has alleged that at around 5.30 hours, while he was sleeping in his house and his brother Suresh Saw (P.W. 3) was sleeping in his house. In

the meantime, his mother and Puran Hazam were plucking the leaves of banyan tree, for that some altercation took place and thereafter the

informant’s wife informed the informant upon which informant went to his another house and called his brother, Suresh Saw. In the meantime,

Murli Thakur, Wazir Thakur, Gulab Thakur, Puran Thakur, Dhanurdhari Thakur, Baso Thakur, Kripa Thakur and 4-5 unknown persons of village

Manakadiha, P.S. Jamua, District- Giridih came with lathi, bhalla, sword. The informant said that both the brothers fled away and entered into their

house but the accused persons also entered into their house and assaulted them. Murli Thakur having sword said that kill him and thereafter assaulted

informant’s brother Suresh Saw by means of sword, on his head. Suresh Saw fell down on the ground and thereafter other accused persons

assaulted the informant and his mother causing injury. After Suresh Saw fell down all the accused persons assaulted Suresh Sao brutally. The

covillager, Pramod Rana, Baleshwar Rana and Doman Rana have witnessed the occurrence, who will say about the occurrence. The informant has

alleged that the occurrence took place as informant has purchased two acres of land from daughter of Khoso Thakur, which the accused persons

wanted to grab and because of that, the accused persons having deadly weapons entered into the house and assaulted the informant, informant’s

brother and mother.Â

 On the basis of the written report the police registered Sadar Giridih P.S. Case No. 15 of 1991 dated 30.01.1991 under Sections 147, 148, 149, 448,

323, 324, 307 of the Indian Penal Code and after investigation the police submitted chargesheet vide no. 22 of 1991 dated 25.02.1991 against all named

accused persons, under Sections 147/ 148/ 149/ 448/ 323/ 324/ 306 of the Indian Penal Code. The cognizance of the offence has been taken vide

order dated 25.03.1991 and the case has been committed to the court of sessions vide order dated 23.09.1992. The charge has been framedÂ

against all the six accused persons of Criminal Appeal (SJ) No. 1707 of 2003 namely Wazir Thakur, Gulab Thakur, Puran Thakur, Dhanushdhari

Thakur, Baso Thakur and Kripa Thakur under Sections 323 and 148 of the Indian Penal Code. So far Murli @ Banwari Thakur @

Banwari Hazam is concerned, he has been also charged under Sections 307, 324 and 148 of the Indian Penal Code, and all seven accused have been

separately charged under Section 452 of the Indian Penal Code on 25.08.1993, to which the appellants pleaded their innocence and thus they were put

under trial.Â

The prosecution has examined altogether six witnesses. Karu Mahto has been examined as P.W. 1, Doman Ram has been examined as P.W. 2.

They are independent eye-witnesses to the occurrence. P.W. 3, Suresh Sao is the injured and brother of the informant. P.W. 4 is Dropati Devi, she is

the mother of informant and injured person. P.W. 5, Prakash Sao is the informant and injured witness to the case. Dr. Mukund Prasad Choudhary

P.W. 6 is the medical officer, who has examined all the three injured and have proved the injury report of Prakash Sao (informant) as Exhibit- 2.

Injury report of Suresh Sao (brother of the informant) as Exhibit- 2/a and injury of Dropati Devi, mother of the informant as Exhibit- 2/b. The

prosecution has only proved two exhibits, the signature of the informant on the First Information Report has been proved and marked Exhibit 1 and the

injury report of Prakash Sao, Suresh Sao and Dropati Devi has been marked as Exhibit 2 series.Â

After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C. on 04.07.2003 where they

have denied about their involvement and assault made by them to the witnesses. The defence has also examined one Nathu Hazam as D.W. 1 but no

documentary evidence has been produced on behalf of the defence. After hearing the parties and on perusal of the record the learned Trial Court has

passed the impugned judgment of conviction whereby Murli @ Banwari Thakur @ Banwari Hazam convicted under Sections 307, 324 and 148 of the

Indian Penal Code and other six accused persons Kripa Thakur, Gulab Thakur, Wajir Thakur, Puran Thakur, Dhanusdhari Thakur and Baso Thakur

have been convicted under Section 323 of the Indian Penal Code and all have been acquitted under Section 452 of the Indian Penal Code. Against the

said impugned judgment the two criminal appeals have been preferred before this Hon’ble court and they are being heard together by this court as

they are arising out of common judgment of conviction and order of sentence.Â

During pendency of the appeal Gulab Thakur and Puran Thakur died and to that effect the affidavit has been brought on record and their case has

been abated. As no application under Section 394 Cr.P.C. has been filed for grant of leave by the legal heirs or relative of the deceased-appellants to

pursue the appeal and as such the appeal stands abated, so far Gulab Thakur and Puran Thakur are concerned.Â

Heard learned counsel for the appellants, Mr. Chandrashekhar Prasad. Learned counsel for the appellants has submitted, that the impugned

judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further

submitted that dispute arose because of plucking of leaves of a banyan tree between the mother of the informant and Puran Hazam and thereafter

altercation took place and thus there was a free fight between the parties, in which Suresh Sao (P.W. 3), Dropati Devi (P.W. 4) and Prakash Sao

(P.W. 5) have sustained injuries. Learned counsel for the appellants has further submitted, that as per the allegation, it is alleged that Murli @ Banwari

Thakur @ Banwari Hazam has assaulted Suresh Sao by means of sword, once on the head. The doctor has found two injuries on the person of

Suresh Sao. First injury comprises of three cut injuries: 2†x 1/4"" x 1/4"", 1¼†x 1/4"" x 1/4"" and 1†x 1/4"" x 1/4"" sizes over left half of the head and

second injury is abrasion of 1 inch diameter over right thigh but the doctor has opined that all the injuries are simple in nature.

 Learned counsel for the appellant has submitted that since there is no repetition of blow, second injury may have caused because of fall on the

ground and there is no intention on the part of the appellants, had they had the intention to commit murder of the informant, they could have attempted

twice- thrice as there was no intervening circumstances, had they had some intention of killing the person. Learned counsel for the appellant has

submitted that conviction of the appellant Murli @ Banwari Thakur @ Banwari Hazam under Section 307 of the Indian Penal Code cannot sustain in

the eyes of law. The learned counsel for the appellant, Mr. Chandrashekhar Prasad has fairly submitted, that at best Murli @ can be convicted under

Section 323 and 148 of the Indian Penal Code, as the injuries were simple in nature and considering the long period of litigation, the sentence may also

be modified. Learned counsel for the appellants has further submitted that other accused persons have been convicted under Section 323 and 148 of

the Indian Penal Code. The learned counsel for the appellant has further submitted that other co-accused convicts, who have preferred Cr. Appeal

(SJ) No. 1707 of 2003, have been convicted under Section 323 of the Indian Penal Code. Learned counsel for the appellants has further submitted that

it is true that there is a fight between the parties but the fight took place in the year 1991 and much period has been lapsed, approximately 28 years

between the agnates and as such this court may take lenient view, while awarding the sentence.Â

Learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor has submitted that Karu Mahto (P.W. 1) and Doman Ram (P.W.

2) are independent witnesses and they are eye-witness to the occurrence. Their evidence is consistent to the prosecution case. The defence has

examined them in detail but nothing has been elucidated to disbelieve the prosecution case. Suresh Sao (P.W.3- injured) has sustained injuries on his

head, alleged to be caused by Murli @ Banwari Thakur @ Banwari Hazam by means of sword but from perusal of the injury report (Exhibit- 2)

series, the doctor has opined that the injuries are simple in nature. Learned counsel for the State has stated that Dropati Devi, another injured eye-

witness has been examined as P.W. 4. She has been assaulted by means of lathi by the accused persons and her evidence is consistent to the

prosecution case. Nothing has been elucidated by the defence during cross-examination.Â

Prakash Sao (informant and injured of the case) has been examined as P.W. 5. His evidence is also consistent to his fardbeyan and nothing has

been elucidated by the defence during cross-examination and his evidence is consistent to all the other witnesses. Dr. Mukund Prasad Choudhary

(Medical Officer), who has examined all these three injured of this case and has found that injuries were simple in nature and proved the injury reports

and marked as Exhibit- 2 series.

Learned counsel for the State Mr. Mukesh Kumar, Additional Public Prosecutor has submitted, that learned Trial Court has rightly convicted the

appellants by the impugned judgment of conviction and order of sentence.Â

Heard, learned counsel for the appellants, Mr. Chandrashekhar Prasad, learned counsel for the State, Mr. Mukesh Kumar, Additional Public

Prosecutor and perused the record, F.I.R., framing of charge, evidence of the prosecution witnesses, exhibits of the prosecution side, 313 Cr.P.C.

statement of the appellants and the defence witness namely Nathu Hazam and from perusal of the evidence on record, it appears that free fight took

place between the parties owing to plucking of leaves of a banyan tree. It is alleged that Murli @ Banwari Thakur @ Banwari Hazam has assaulted

Suresh Saw on his head by sword but the injuries found by the Doctor as Exhibit- 2/a is simple in nature and there is no repetition of blow, thus the

conviction of the appellant Murli @ Banwari Thakur @ Banwari Hazam under Sections 307, 324 and 148 of the Indian Penal Code. Murli @ cannot

sustain in the eyes of law, as the injuries are also found to be simple in nature and there is no repetition of blow showing intention of the appellant

Murli to kill Suresh Sao. Under such background the conviction of the appellant Murli @ Banwari Thakur @ Banwari Hazam is converted to Section

323/148 of the Indian Penal Code by setting aside the conviction under Sections 307 and 324 of the Indian Penal Code.Â

 This court is of the opinion that other appellant of Cr. Appeal (SJ) No. 1707 of 2003 namely Kripa Thakur, Gulab Thakur, Wazir Thakur, Puran

Thakur, Dhanushdhari Thakur and Baso Thakur have been rightly convicted by the learned Trial Court, as corresponding injuries were found on the

person of P.W. 4 (Dropati Devi) and on the person of Prakash Sao (P.W. 5- informant of the case), which has been proved and marked as Exhibits-

2/b and 2 respectively by doctor Mukund Prasad Choudhary (P.W. 6) and as such their conviction has rightly been passed by the learned Trial Court

under Section 323 of the Indian Penal Code, as those injuries are caused by hard and blunt substances and simple in nature.Â

Under the aforesaid circumstances, the Cr. Appeal (SJ) No. 55 of 2004 in case of Murli @ Banwari Thakur @ Banwari Hazam is dismissed by

converting the conviction from Sections 307, 324 and 148 of the Indian Penal Code to Section 323/148 of the Indian Penal Code. So far Cr. Appeal

(SJ) No. 1707 of 2003 preferred by Kripa Thakur, Gulab Thakur, Wazir Thakur, Puran Thakur, Dhanushdhari Thakur and Baso Thakur is hereby

dismissed. So far sentence is concerned, the learned counsel for the appellant Mr. Chandrashekhar Prasad has submitted that Murli Thakur remained

in custody for approximately six months and other appellants have remained in custody for one month and free fight was between agnates took place

28 years ago. Considering such submission that for causing voluntary hurt the convict can be imprisoned either for a description of a term, which may

extend to one year or with fine or which may extend to Rs. 1000/- or with both. Since Murli Thakur is now aged about 70 years as he was 55 years at

the time of conviction, in the year 2003 and has served the sentence of six months, his sentence is modified as period undergone, but with condition

that he will pay a fine of Rs. 1000/- to Suresh Sao, within a period of six weeks from today and so far other appellants of Criminal Appeal (SJ) No.

1707 of 2003 are concerned, their sentence is modified as period already undergone but with condition that they should pay a sum of Rs. 500 each to

the informant and his mother in equal share of Rs. 1000/- each, within a period of six weeks from today through bank draft in the name of the injured

Suresh Sao, Prakash Sao and Dropati Devi respectively as stated above. If the appellants are not depositing the said amount within stipulated time of

six weeks, then they will serve the sentence Murli @ Banwari Thakur @ Banwari Hazam will serve the sentence of one year and other appellants of

Cr. Appeal (SJ) No. 1707 of 2003 will serve the sentence of six months, as granted by the learned Trial Court. Â

In the result, both the criminal appeals preferred against the impugned judgment of conviction dated 06.11.2003 and order of sentence dated

10.11.2003, passed by learned Additional District and Sessions Judge, Fast Track Court- VIII, Giridih, in Sessions Trial No. 289 of 1992 in connection

with Sadar Giridih P.S. Case No. 15 of 1991, consequent to G. R. No. 186 of 1991, are hereby dismissed with modification with respect to conviction

and sentence of the appellant Murli @ Banwari Hazam @ Banwari Thakur in Cr. Appeal (SJ) No. 55 of 2004Â and Cr. Appeal (SJ) No. 1707 of

2003 is also dismissed with aforesaid modifications, as period already undergone.

The present Criminal Appeals are accordingly dismissed with modification in sentence.Â

The appellants who are on bail their bail bonds are cancelled to serve out the modified sentences by paying fines or serving the sentences.  Â

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Â

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