Ramesh Pd. Rai And Ors vs State Of Jharkhand

Heard Lakhan Chandra Roy, learned counsel appearing for the appellants and Suraj Mohan, learned A.P.P. appearing for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 14.02.2006 passed by Shri Satyendra Kumar Singh, 1st

Additional Sessions Judge, Deoghar, in Sessions Trial No.310 of 2001, whereby and whereunder the appellants have been convicted for the offence

under Sections 147, 148, 448/149, 323/149 and 324/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year with

fine of Rs.500/- for offence under Section 148 of the Indian Penal Code, in default of payment further undergo rigorous imprisonment for one month.

All the appellants have been sentenced to undergo rigorous imprisonment for six months with fine of Rs.500/- for the offence under Section 448/149

of the Indian Penal Code in default of payment to further undergo rigorous imprisonment for one month. Further, all the appellants have been

sentenced to undergo rigorous imprisonment for six months with a fine of Rs.500/- for the offence under Sections 323/149 of the Indian Penal Code, in

default of payment to undergo rigorous imprisonment for one month. The appellants have also been sentenced to undergo rigorous imprisonment for

two years with fine of Rs.1,000/- for the offence under Sections 324/149 of the Indian Penal Code, in default of payment further undergo rigorous

imprisonment for three months.

The FIR has been lodged by the written statement of the informant namely Madan Mohan Tiwari (P.W.-4) on 14.05.2000 which has been

registered as Sarath P.S. Case No.56 of 2000 under Sections 147, 148, 149, 448, 504, 323, 324, 326, 337, 427 and 379 of the Indian Penal Code.

As per the allegation made in the FIR, when the informant namely Madan Mohan Tiwari was returning to his house, he saw that the appellants

were flowing water from their roof top in the ‘gali’ which belongs to the informant. When he objected, the altercation took place between the

parties. Allegation has been made against these appellants that Lathi, Brick, Bhala e.t.c. have been used due to which the informant and his family

members sustained injury. They rushed to the police station in injured condition and FIR has been lodged.

After completion of investigation, all the appellants have been charge-sheeted under Sections 147, 148, 448, 504, 323, 337, 307, 427, 379/149 of the

Indian Penal Code. Cognizance was taken and the case has been committed to the Court of Sessions and charged framed to which the accused

persons pleaded not guilty and claimed to be tried.

To substantiate the prosecution story, altogether seven witnesses have been examined.

P.W.1-Panchanand Tiwari, P.W.2-Mannu Tiwari, P.W.3-Nimai Tiwary and P.W.4-Madan Mohan Tiwari (the informant) are the injured witnesses

and all are the family members. One of the injured persons namely Mirtunjay Tiwari has not been examined although his injury has been brought on

record.

P.W.5-Dr. Rameshwar Mahto is formal witness and has identified the signature of Dr. Suresh Mahto (P.W.-6) on injury reports (Ext.2 to 2/4).

P.W.6-Dr. Suresh Mahto has claimed that he was posted at PHC, Sarath as medical officer and has examined the injured persons.

P.W.7-Vishnukant Rao is the Advocate Clerk who proved the signature of S.I. namely Mani Bhushan Prasad on the FIR (Ext.3)

It has been argued by the learned counsel for the appellants that both the parties are next door neighbours. They share a common boundary wall.

There are various civil litigations which are going on between the parties as has been testified by the informant himself in his cross-examination.

Further the injury has not been proved as is evident from the testimony of P.W.-6 as no serial number has been mentioned and no X-Ray has been

done. The injury report without official documentation carries no meaning. The flow of testimony of P.W.6-Dr. Suresh Mahato suggests that he has

partitioned view as he has examined injury of the appellants also and has opined that those injuries are caused due to fall of the wooden object from

height and also by fall on sharp edge of the bamboos. Such injury report which is not officially documented and further the flow of narration of P.W.6

creates doubt and shows the partition attitude of P.W.6. The informant (P.W.-4) in his cross examination has admitted that there was verbal

exchange, thereafter, scuffle has taken place between the parties. The place of occurrence is ‘gali’. Still the appellants have been convicted

under Section 448 which is not even alleged. It clearly suggests the non-application of mind and non-appreciation of the evidence on the part of the

learned court below.

Alternatively, it has been argued that the both parties are next door neighbours and good relationship has been restored. Considering the age of

litigation the sentencing may be reduced to fine only by giving warning. The I.O. has not been examined and this has caused serious prejudice to the

appellants.

On the other hand, learned APP has submitted that out of five injured witnesses, four witnesses have been testified regarding the scuffle. Further

the scuffle between the parties get corroboration from the medical evidence by P.W.6, and as such, the impugned order requires no interference.

Heard the counsel for the parties. From the material available on record, as per the allegation, scuffle has taken place between the parties. The

appellants have lodged FIR being the Sarath P.S. Case No.55 of 2000. The informant case number is Sarath P.S. Case No.56 of 2000. Both has been

lodged on the same day. It has been admitted by P.W.4 (the informant) that both were present in the police station thereafter, before the doctor. The

place of occurrence has been testified to be ‘gali’ in the cross-examination by the informant himself. Thus, the conviction under Section 448 of

the Indian Penal Code is totally unwarranted and accordingly the appellants are discharged from the said section. So far as conviction under Sections

323, 324 and 148 are concerned, the testimony of doctor (P.W.6) does not transpires confidence. The flaw of the injury report has been advocated

and it has been admitted by P.W.6. The narration of injury of the accused and the appellants smacks partition attitude of the doctor. Further, on

perusal of injury report, it appears that all the injuries are simple in nature. Simple injury suggests that the ingredients of Sections 324 and 148 of the

Indian Penal Code are not present. Accordingly the appellants are discharged from the said charged sections of 324 and 148 of the Indian Penal Code

also. So far as Sections 147, 323 read with Section 149 of the Indian Penal Code is concerned, evidence on record suggests that there was scuffle

between the parties and both have sustained injury and who is the aggressor has not been evidenced and in the absence of examination of the I.O., the

same cannot be substantiated.

Further it appears that there was various litigation between the parties and the parties are sharing a common boundary wall. The place of

occurrence is ‘gali’ which is a passage and who is aggressor has not been evidenced and there was manipulation in the injury report and further

the I.O. has not been examined.

Considering the evidence and material available on record and the narratives, this Court finds that the conviction of the appellants under Sections

324, 147 323 read with Section 149 of the Indian Penal Code is unwarranted as there is no sufficient evidence available against them. Accordingly

they are discharged from these sections also.

In view of above discussion and considering the material available on record, the appellants are discharged from the charged Sections and

consequently the judgment of conviction and order of sentence dated

14.02.2006 passed by Shri Satyendra Kumar Singh, 1st Additional Sessions Judge, Deoghar, in Sessions Trial No.310 of 2001 is, hereby, set aside.

Accordingly, the appeal is, hereby, allowed.

Since the appellants are already on bail, they are discharged from liability of their bail bonds.