IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 1355 of 2007 --------- 1. Balmukund Gope, Son of Late Butna Gope 2. Dilip Gope, Son of Balmukund Gope 3. Kartikeshwar Gope, Son of Dhana Gope 4. Debra Lohra, Son of Late Mangal Lohra All resident of village Birkera Mahuwa-Toli, P.S. Sisai, District- Gumla … … Appellants Versus The State of Jharkhand …. Respondent --------- CORAM: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ---------- For the Appellants : Mr. Baleshwar Yadav, Advocate For the Resp. (State) : Mrs. Nehala Sharmin, S.P.P. ----------- 10/Dated: 24th January, 2025 1. Heard, Mr. Baleshwar Yadav, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Special Public Prosecutor appearing for the State. 2. The present appeal has been preferred by the appellants challenging the judgment of conviction and order of sentence dated 28.09.2007 passed by learned Presiding Officer Fast Track Court-3, Gumla in S.T. No.86 of 2005, corresponding to G.R. Case No.554 of 2004 arising out of Sisai P.S. Case No.87 of 2004, whereby and whereunder, the appellants have been held guilty for the offences under section 341, 323, 324, 307 r/w 34 of Indian Penal Code and sentenced the appellant No.1 to undergo R.I. of 7 years for charge of under section 307 of IPC, to undergo S.I. for six months for charge under section Cr.Appeal (S.J.) No.1355 of 2007 2 323 of IPc, to undergo S.I. for one year for the charge, under section 324 of IPC and to undergo S.I. for one month for the charge under section 341 of IPC. Further, the appellant Nos.2 to 4 namely Dilip Gope and Kartikeshwar Gope and Debra Lohra were sentenced to undergo R.I. for 7 years for charges under section 307 of IPC, to undergo R.I. for 1 years, for charge under section 323 of IPC, R.I. for 3 years for the charge under section 324 of IPC and to undergo S.I. for one month for the charge under section 341 of IPC. All the sentences have been directed to run concurrently. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that on 12.09.2004, the informant’s son namely Mangra Kharia went out from the house for making boundary around his filed. In the meantime at about 7:30 AM, all the accused persons arrived at the field abusing the informant’s son and caught hold of his neck and pushed him down inside the water logged in the field. Upon pressing of the neck of the informant’s son, he raised alarm then the informant rushed towards his son to save him, then the accused Balmukund Gope and Dilip Gope inflicted balua Cr.Appeal (S.J.) No.1355 of 2007 3 upon the informant, which was warded of by his hands but got injured on his head. The further case is that Dilip Gope attacked on the informant’s chest and back with handle of axe. Seeing the attack by the accused persons to the informant, his elder son rushed but all the accused fled away. The scuffle took place due to grazing the crops of the informant by the cattle of the accused. On the basis of fardbeyan of the informant, Sisai P.S. Case No. 87 of 2004 was instituted for the offences under Sections 341, 323, 324, 307/34 of the I.P.C. After completion of the investigation, charge sheet was submitted against the appellants for the offences under Sections 341, 323, 324/307/34 of the I.P.C. Charges were framed against the appellants for the offence under Sections 341, 323, 324/307/34 of the I.P.C, which were read over and explained to them, for which they pleaded not guilty and claimed to be tried. 4. In the course of trial, altogether six witnesses were examined and several documentary evidences were also adduced by the prosecution. Cr.Appeal (S.J.) No.1355 of 2007 4 5. The learned Trial Court after considering the oral as well as documentary evidence adduced by the prosecution and after hearing the parties found the appellants guilty and sentenced them as stated above. 6. Learned counsel appearing for the appellants submits that the appellants have been convicted for the offence under Sections 341, 323, 324, 307/34 of the I.P.C without any cogent and reliable evidence. The injury sustained by the injured persons, as per medical report is opined to be simple in nature caused by hard and blunt substance and not dangerous to life, which falls under Section 323 of the I.P.C. So far the conviction of the appellants under section 324 of IPC is concerned; the same is also illegal and not sustainable in the eyes of law. As neither the injuries sustained by the injured person has been proved to be inflicted by any dangerous weapons nor any dangerous weapons has been recovered, seized and proved by the prosecution. The appellant Nos.1 and 4 Balmukund Gope and Debra Lohra respectively have remained in custody about two months during trial of the case, whereas appellant Nos.2 and 3 have remained in custody about 1 months and 3 days Cr.Appeal (S.J.) No.1355 of 2007 5 and all the appellants have sufficiently been punished for their guilt. Therefore, conviction and sentence of the appellants for the offence under Sections 307 and 324 of the I.P.C. is liable to be set aside and this appeal may be allowed with modification in sentence to the imprisonment already undergone for the conviction under sections 323 and 341 of IPC. 7. Learned A.P.P. appearing for the State has opposed the aforesaid contentions raised on behalf of the appellants and defending the impugned judgment and order of conviction and sentence has submitted that there was injury on scalp, which is vital part of the body, therefore, mere nature of injury is not to be looked into, rather it is the intention of the appellants to kill the injured persons is required to be taken into consideration and the same has been rightly taken into consideration by the Trial Court. Hence, this appeal is devoid of merit and fit to be dismissed. 8. I have gone through the record of the case along with impugned judgment and order in light of the contentions raised on behalf of the parties. It appears that the sole injured Cr.Appeal (S.J.) No.1355 of 2007 6 is P.W.3 viz. Aklu Khariya, who has supported the prosecution case and deposed that he rushed towards his son, Mangra Kharia to save, who was being assaulted by the appellants, then Balmukund Gope inflicted baluwa on his head and caused head injury and also assaulted by the son of Balmukund Gope on his back. In his cross-examination, he has specifically deposed that due to cut injury on head, the cloth soaked with blood but the said cloth was not seized by the police. After institution of written report, the Investigating Officer came but no statement has been recorded. The testimony of P.W.3 is further corroborated by the medical report, who has found following injuries on the sole injured: (i) One abrasion 3” x 2” size on the right scapular area. (ii) An abrasion 1”x1/2” sixe on the front of mid chest. (iii) An Abrasion ½” x ½” sixe on the back of left elbow fist. A lacerated would ½” x 1/8” x scalp deep on the occipital area of scalp. Cr.Appeal (S.J.) No.1355 of 2007 7 All the injuries are opined to be simple in nature and caused by hard and blunt substance. 9. The circumstances under which the occurrence is alleged to have taken place and the nature of injury sustained by the injured clearly goes to show that it was simple injury attracting the offence under Section 323 of the I.P.C. The required intention and knowledge to constitute the offence under Section 307 of the I.P.C. is absolutely lacking in this case. 10. So far the conviction under section 324 of IPC is concerned, although the injured has deposed that for inflicting the injury balua and axe were used, however the injuries sustained by the injured does not prove to be inflicted by any dangerous weapon like instrument for shooting, stabbing or cutting. Hence, the conviction of the appellants under section 324 of IPC is not sustainable. 11. In view of above, conviction and sentence of appellants for the offences under Sections 307 and 324 of the I.P.C. is hereby set aside. So far offence under Sections 323 r/w 34 of the I.P.C. is concerned, the appellants have already undergone Cr.Appeal (S.J.) No.1355 of 2007 8 some imprisonment during pendency of the trial and appeal. Therefore, in my considered view, appellants have sufficiently been punished for their guilt. Accordingly, this appeal is partly allowed. 12. Appellants are on bail, as such, they shall be discharged from the liability of bail bonds and sureties shall also be discharged. 13. Pending I.A(s), if any, is also disposed of accordingly. 14. Let the copy of this judgment along with Trial Court Record be sent back to the concerned trial court for information and needful. (Pradeep Kumar Srivastava, J.) Pappu/-