The court clarified that family witnesses can be credible, and conviction under IPC was modified based on the evidence presented, emphasizing the need for clear intention in assault cases.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. Both these appeals arise out of the common judgment of conviction and sentence passed in Sessions Trial No. 18 of 2009 by which Appellants Sukhdeo Bhokta, Jaipal Bhokta and Chote Bhokta have been convicted and sentenced under Section 325 of the IPC.

2. The convicts have preferred Criminal Appeal (S.J.) No. 952 of 2013 against the judgment of conviction and sentence.

3. Criminal Appeal (D.B.) No. 205 of 2014 has been preferred by the victim against the acquittal of Fauli Bhoktain and further for conviction of the other appellants for lower offence under Section 325 of the IPC, whereas the appellants were charged for offence under Section 307/149 of the IPC.

4. Land dispute is the genesis of the offence. As per the FIR, on 11.11.2007 when the informant-Joseph Dungdung was getting his crops harvested, the above named accused persons came armed with Tangi and Lathi and conjointly assaulted the informant. When his son William Dungdung came for his rescue, he was also assaulted with sharp cutting weapon with intention to cause death. There were altogether 20-25 aggressors who retreated after critically injuring the informant and his son.

5. On the written report, Simdega P.S. Case No. 161 of 2007 was registered under Sections 147, 148, 149, 323, 324, 307 of the IPC against the appellants and others. Police on investigation, submitted charge sheet against the appellants and Smt. Fauli Bhoktain. Charge was framed under Section 307/149 and the appellants were put on trial.

6. Altogether eleven witnesses were examined on behalf of prosecution and relevant document including injury reports were adduced into evidence and marked as exhibit.

7. As far as the appeal against conviction is concerned, it is argued by the learned counsel on behalf of appellants that all the witnesses are close family relatives and no independent witness has been examined to support the prosecution case. It is also argued that there is material contradiction in the deposition of witnesses regarding the manner of assault. It is argued that PW-1 Sanichara Lohra claims himself to be an eye witness to the occurrence and he says that Sukhdeo had assaulted Joseph with axe (Tangi) whereas Jaipal Bhogta and Fauli Bhoktain assaulted Joseph with stick and Chote Bhogta had assaulted informant’s son William Dungdung with axe.

PW-2 Salistin Dungdung happens to be son of the informant and claims that on 11.11.2007 at about 3 p.m. Sukhdeo Bhogta, Jaipal Bhogta, Chote Bhogta and Fauli Bhoktain armed with axe and sticks entered into a scuffle with his father Joseph Dungdung and also assaulted him. He further claims that the aforesaid accused persons and 10-12 unknown persons had assaulted his father with stick and when his elder brother William Dungdung came for rescue, he was also assaulted.

PW-3 Nilima Dungdung is the daughter-in-law of the informant and has deposed that on the alleged date of occurrence, Sukhdeo Bhogta, Chote Bhogta, Jaipal Bhogta, Fauli Bhoktain along with 15-20 unknown persons came to the place of occurrence and asked her father-in-law not to get the paddy harvested and later on, they assaulted him. She claims that Sukhdeo Bhokta assaulted him with Tangi on his head due to which he fell down and thereafter, Jaipal and Fauli Bhoktain had assaulted her father-in-law with stick and he sustained injury on the head.

PW-6 Joseph Dungdung (informant) has reiterated his statement as stated in the FIR. In his cross-examination, he deposed that they were having land dispute with the appellants since 1977.

PW-8 Sunita Kusma was the labour who was involved in harvesting the field of the informant. She has not supported the prosecution case and was declared hostile.

PW-10 Jama Kharia is the Investigating Officer of the case but he has not recorded the statement of any witness neither he has recorded the explanation of any of the accused persons.

8. It is argued by learned counsel in the appeal against acquittal being Criminal Appeal (D.B.) No.