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2007 DIGILAW 243 (JHR)

Md. Samshad Khan v. State Of Jharkhand

2007-04-04

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. This appeal has been preferred by the appellants against the judgment and order dated 27,8.2002 passed by Additional Judicial Commissioner-cum-Special Judge VI, C.B.I. (A.H.D.), Ranchi in Sessions Trial No. 455 of 1998 whereby and whereunder all the appellants stand convicted for the offence punishable under Sections 307/34 of the Indian Penal Code and appellant No. 1 Samshad Khan was sentenced to serve rigorous imprisonment for seven years whereas appellant Nos. 2 to 4 were sentenced to serve rigorous imprisonment for five years. 2. Brief facts leading to this appeal are that in the morning of 11th of April 1998, son of the informant was beaten by son of appellant Kamal Khan. The wife of the informant went to protest with the wife of appellant Kamal Khan. In the meantime, the informant arrived at and he also protested with appellant Kamal Khan why the children used to beat his son. At this, stage, appellant Samshad Khan assaulted the informant with Chapar, a sharp cutting weapon, on his head and left arm. Other appellants also participated in further assault. The informant raised alarms on which villagers arrived and saved him from further assault. He was brought to RIMS, for treatment where his statement was recorded at 11.30 hours, same day, by the police. 3. On the basis of which, Bariatu Police Station Case No. 37 of 1998 under Sections 307, 323, 324, 325/34 of the Indian Penal Code was registered against five persons. The police investigated the case and finally submitted charge- sheet against the four persons for offences under Sections 323, 324, 325 and 307/34 of the Indian Penal Code. The trial of the appellants was committed to the Court of Sessions where they were charged for these offences on 23.7.1998. The appellants pleaded not guilty. However, the trial Court after examining the witnesses found and held the appellants guilty under Sections 307/34 of the Indian Penal Code and sentenced them separately as stated above. 4. The present appeal has been preferred mainly on the grounds that the contradictions in the evidence of prosecution witnesses have not been considered by the trial Court. It is further submitted that appellant Samshad Khan used to run a teashop and he was not present at the spot. According to learned Counsel for the appellant, only interested witnesses have supported the case. It is further submitted that appellant Samshad Khan used to run a teashop and he was not present at the spot. According to learned Counsel for the appellant, only interested witnesses have supported the case. It is further submitted that since the Incident was the result of flex up of quarrel between children, the parties are now living in peace. According to learned Counsel, injures found in the informant were not of grievous and serious in nature. As such, the conviction under Section 307 of the Indian Penal Code is not maintainable, it is also submitted that the sole eye-witness of the occurrence, wife of the informant (P.W. 2), has given a different version of assault. It was further pointed out that P.W. 3, own brother of the informant, has admitted during cross- examination in paragraph-13 that he did not saw the actual assault and the place of occurrence was shifted by the informant himself. Therefore, the parties being close agnates now living in peace, the conviction of the appellants may be set aside. 5. I have carefully gone through the material on records. The prosecution has examined altogether seven witnesses including Dr. C.B. Sahay (P.W. 7), who has examined the informant and found seven injures on his person at 11.4.1998 out of which the first injury 2-1 /2" long X 1" breath X skin deep was caused by sharp cutting weapons. Other injures were abrasions on different parts. According to him, injuries were simple in nature vide Ext. 4. P.W. 5 Kanij a Khatoon and P.W. 2 Salema Khatoon are mother and wife of the informant. P.W. 3 Md. Mokhtar has been declared hostile. P.W. 4 Md. Akhtar is the informant. P.W. 1 Saharat Khatoon is the neighbour of the informant. All they have stated that they saw appellant Samshad Kahn assaulting the informant with "Chapar" in his hand. All the witnesses have cross-examined at length, in which they admitted that they came out of hulla and saw the occurrence. P.W. 1 vide paragraph-10 stated that the informant went to hospital on his cycle for his treatment. 6. P.W. 2 asserted that during quarrel asked by her husband (P.W. 4) to go back to his house. Thereafter assault took place. She has admitted in cross- examination that she saw the assault on his husband from inside. P.W. 1 vide paragraph-10 stated that the informant went to hospital on his cycle for his treatment. 6. P.W. 2 asserted that during quarrel asked by her husband (P.W. 4) to go back to his house. Thereafter assault took place. She has admitted in cross- examination that she saw the assault on his husband from inside. P.W. 5, brother of the informant, asserted that the appellants, agnates of the informant, were abusing P.W. 2 on which the informant objected and thereafter he was assaulted. She has admitted in paragraph-3 that the appellants were descendants of Razak khan. According to her version, the informant fell down after assault and he was taken to hospital on Rickshaw. She has admitted that no neighbour has come to support the prosecution case. P.W. 4, the informant, has supported his earlier statements before the police. However, he admitted during cross-examination that normally he comes back from his duty in the night. He further admitted vide paragraph- 1 that when he reached, quarrel has already ended and he was informed by his wife regarding the incident. He further admitted in paragraph-17 that all the appellants were his cousin brothers. According to him, there was a proceeding under Section 107 of the Code of Criminal Procedure between them and a counter case has been lodged for the same occurrence in which he has been acquitted. 7. P-W.6 is the investigating officer or this case, who has recorded the statements of informant vide Ext. 2 and visited the place of occurrence situated in front of the house of appellant Kamal Khan. He found another place of occurrence inside the house of the informant. He admitted during cross- examination that he went to record the statement of the informant in hospital. He was completely, in senses having one bandage on his head. According to him, the witnesses examined by him, P.W, 2 and P.W. 5 have asserted that the informant received injuries from door. 8. Having considered the materials on records and after going through the impugned judgment that the learned trial Court has rightly found and held that Mar-pit took place in which informant received injures proved by P.W. 7 the doctor. However, the trial Court having convicted the appellants under Sections 307/34 of the Indian Penal Code, failed to consider that injures found on the informant were not serious and grievous in nature, rather, simple. However, the trial Court having convicted the appellants under Sections 307/34 of the Indian Penal Code, failed to consider that injures found on the informant were not serious and grievous in nature, rather, simple. The witnesses have not asserted that the assault was given with intention to cause death and further the injury do not go to prove that there was any such intention to part of appellant Samshad Khan. As such, the conviction of the appellants under Section 307/34 of the Indian Penal Code cannot be maintained. The informant and the appellants are neighbour and agnates. The incident took place at the spur of moment on quarrel between children. 9. In the result, the judgment of conviction under Section 307/34 of the Indian Penal Code passed against the appellants is hereby set aside. It stands modified under Sections 323 and 324 of the Indian Penal Code. Keeping in view of these facts stated above, I find that the ends of justice would be served if the appellants are directed to execute a bond under Section 4 of the Probation of Offenders Act to keep peace and good behave for one year. Accordingly, the sentences are modified and converted to execution of bond under provisions of Section 4 of the Probation of Offenders Act before the trial Court for a period of one year within four weeks to keep peace and good behave between the parties from today. Accordingly, this appeal is dismissed with modification in sentence.