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2009 DIGILAW 1377 (JHR)

Mahadeo Modi v. State of Jharkhand

2009-11-05

PRADEEP KUMAR

body2009
By Court.- Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 18th June, 2002 passed by Shri Gautam Mahapatra, Additional District & Sessions Judge, F.T.C. No. IV, Bokaro in Sessions Trial No. 495 of 1995 by which judgment learned Additional Sessions Judge found the appellants guilty under Sections 307 & 148/34 of the Indian Penal Code and sentenced them to undergo R.1. for three years under Section 307 and one year under Section 148 of the Indian Penal Code. 3. It is submitted by learned counsel for the appellants that it will appear from the evidence of the witnesses that they are agnates and they had land dispute and there is case and counter case for the offence of the same day; only to save themselves, fake counter case was lodged by the accused Mahadeo Modi. The informant has filed this false case. Moreover he has submitted that grievous injury was reported by the doctor in his injury report and subsequently on the basis of X-ray report, although X-ray photo was not proved nor the doctor who examined injury had referred the matter for X-ray, the doctor stated that injury no. 4 was grievous in nature and the appellants have been convicted under Section 307 of the Indian Penal Code. Although there was no intention to cause murder of anybody since. only simple injuries were found and as such the conviction is bad in law and fit to be set aside. 4. On the other hand learned counsel for the State submitted that due to land dispute this occurrence had taken place and witness had proved that the accused persons assaulted P.W. 2 Bhario Modi with intention to cause him death and as such they have been rightly convicted under Section 307 of the Indian Penal Code. 5. After hearing both the parties and going through the record, I find, that in order to prove the charges prosecution has examined five witnesses. 5. After hearing both the parties and going through the record, I find, that in order to prove the charges prosecution has examined five witnesses. All the witnesses have supported the case given in the F.I.R. that on the date of occurrence at about 10.00 A.M. when P.W. 4 Hardayal was plucking leaf of 'Bar' tree for grazing the goats, then he was objected by Budhi Modi and subsequently, all the accused persons came and caught hold of Bhario Modi and assaulted him with lathi, bhala etc. causing injury on his head due to which he fell down. They have also assaulted the informant-Hardayal Modi. 6. P.W. 1 admitted in her cross-examination that the accused Mahadeo Modi had also head injury and she had seen him in the hospital and he alongwith accused Sukhdeo Modi was brought to the police station from the hospital. There is no doubt that there is case of counter case. However, as per the injuries caused to P.W.2 is concerned, the doctor has' found three incised injuries on the person of the injured P.W. 2: (I) Incised wound size 21/2 X 112 X skin deep over the middle of the head. (II) Incised wound size 2" X 1" X skin deep over left parietal aspect. (III) Incised wound size 2" X 1" X skin deep over middle of lower right leg. (IV) Incised wound size 2"X 1" X skin deep over left lower hand. 7. Thus, it appears that all the injuries were only skin deep and the doctor has stated that injury nos. 2, 3 & 4 were simple in nature but in Court X-ray report was shown to the doctor with regard to the injury in hand and then it was opined by the doctor that the injury no. (III) was grievous in nature. Although, it is submitted in his cross-examination that at the time of making his injury report he had not referred the case to any X-ray nor X-ray report was mentioned in the injury report. 8. (III) was grievous in nature. Although, it is submitted in his cross-examination that at the time of making his injury report he had not referred the case to any X-ray nor X-ray report was mentioned in the injury report. 8. In that view of the matter, I find that although all the witnesses have supported the prosecution case but a case under Section 307 is not made out against the petitioners and in that view of the matter conviction of the appellants under Section 307 of the Indian Penal Code is altered to that under 324 of the Indian Penal Code alongwith Section 148/34 of the Indian Penal Code. 9. As far as the sentence is concerned it appears that at the time of judgment passed, appellant no. 1 was old man aged about seventy years, appellant no. 2 was 65 years and as such since they have already suffered during trial and appeal for fourteen years. Hence, in my opinion if the appellants are sentenced to undergo R.I. for six months under Section 324 read with Section 148/34 of the I.P.C. and also to pay fine of Rs. 500/- each. In case the fine is not deposited then they will further undergo R.I. for two months and if paid Rs. 2,000/- will be paid to injured P.W. 2. 10. With the aforesaid alteration in the conviction and sentence the appeal is allowed in part.