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2009 DIGILAW 373 (UTT)

FHATEEK v. STATE

2009-07-17

DHARAM VEER

body2009
JUDGMENT Hon. Dharam Veer, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 01.10.1996 passed by III Addl. Sessions Judge, Naintial in S.T. No. 307 of 1992, State Vs. Fhateek, whereby the learned Addl. Sessions Judge has convicted the appellant/accused under Section 326 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to 3½ years’ R.I. with fine of Rs. 1,000/- and in default of payment of fine, six months’ further imprisonment was awarded. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the facts of the case of the prosecution is that P.W.1 Vishwa Nath Bairagi lodged an FIR at Police Chowki, Shaktifarm, P.S. Sitarganj with the averments that buffalo of appellant/accused Fhateek had entered near the animals of son of complainant namely Jagdish Bairagi. On this, son of complainant went and tied the buffalo of the appellant at his house. On this topic, earlier also some altercation also took place. On being annoyed due to this reason, appellant/accused Fhateek came on 7.11.1992 at about 4 p.m. in the evening being armed with a Patal and with that Patal, he caused injuries to Jagdish Bairagi (P.W.2) which hit on the left side of his neck as a result of which blood started oozing out. On hearing the noise, the complainant along with his daughter in law, Shanker (P.W.5) and other people reached on the place of occurrence who also witnessed the incident. Then the complainant took his son at Government Hospital from where he was referred to Kiccha Hospital. With the same averments, the report was lodged by P.W.1 Vishwanath Bairagi after getting it scribed by Anil Kumar Sarkar on 8.11.1992 at 8.45 AM at Police Chowki Shaktifarm, P.S. Sitarganj, i.e. Ex.Ka-1. On the basis of this FIR, H.M. Ramesh Chand prepared the Chick FIR, i.e. Ex.Ka-3. The entry was also made in the G.D., the carbon copy of which is Ex.Ka-4. The investigation of this case was entrusted to S.I. Kamrul Haq (P.W.3). Injured Jagdish Bairagi (P.W.2) was medically been examined on 7.11.1992 at 8:40 P.M. by P.W.4 Dr. R. Singh and his medical report Ex.Ka-8 was prepared. The entry was also made in the G.D., the carbon copy of which is Ex.Ka-4. The investigation of this case was entrusted to S.I. Kamrul Haq (P.W.3). Injured Jagdish Bairagi (P.W.2) was medically been examined on 7.11.1992 at 8:40 P.M. by P.W.4 Dr. R. Singh and his medical report Ex.Ka-8 was prepared. The I.O. also took in his possession the blood stained clothes of the injured Jagdish Bairagi and prepared the Fard, i.e. Ex.Ka-2. The I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-5. The I.O. also took in his possession the Patal (which was used in the aforesaid crime) and prepared Fard, i.e. Ex.Ka-6. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, filed the charge sheet, i.e. Ex. Ka-7. 4. Learned Munsif Magistrate, Khatima committed the case to the court of Sessions on 11.12.1992 after giving necessary copies to the appellant/accused as required under Section 207 Cr.P.C. The case was transferred by learned Sessions Judge to III Addl. Sessions Judge for disposal according to law. 5. On 7.09.1993, learned III Additional Sessions Judge, Nainital framed the charge against the appellant/accused under Section 307 IPC. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Vishwanath Bairagi, complainant, P.W.2 Jagdish, injured eyewitness, P.W.3 S.I. Kamrool Haq, I.O. of the case, P.W.4 Dr. R. Singh, who medically examined the injured, P.W.5 Shankar Majoomdar, said to be eyewitness and P.W.6 Jadav Mandal, before whom the appellant/accused was said to be arrested. 7. Thereafter, the statement of the appellant/accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. However, he did not produce any oral or documentary evidence in defence. 8. After appearing the evidence on record and hearing learned counsel for the parties, the learned III Additional Sessions Judge, Nainital vide judgment and order dated 01.10.1996 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. 8. After appearing the evidence on record and hearing learned counsel for the parties, the learned III Additional Sessions Judge, Nainital vide judgment and order dated 01.10.1996 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellant/accused has preferred the present appeal. 9. P.W.1 is Vishwanath Bairagi who has supported the contents of the FIR and he also proved the FIR lodged by him, i.e. Ex.Ka-1. 10. P.W.2 is Jagdish, injured witness who has stated that on the date of incident at about 4 p.m., he had gone for grazing the buffaloes. Then the buffalo of appellant/accused had also come within his buffaloes. On this, he took the buffalo of appellant/accused and tied her in the house of appellant/accused. Due to this reason, the appellant/accused became annoyed and caused injuries with Patal on his neck. After that he was medically been examined. His blood stained clothes were also taken which are Ex.1 to 4. 11. P.W.3 is S.I. Kamrul Haq, I.O. of the case, who stated that Chik FIR was prepared by Head Constable Ramesh Chand Dhaundiyal i.e. Ex.Ka-3. The entry was also made by him in the G.D., the copy of which is Ex.Ka.4. He also prepared the site plan of the place of occurrence i.e. Ex.Ka-5. He also recovered the Patal, which was used in the crime, and took the same into possession and prepared the Fard, i.e. Ex.Ka-6. During investigation, the recorded the statements of witnesses and on completion of investigation, he filed the charge sheet, i.e. Ex.Ka-7. 12. P.W.4 is Dr. R. Singh who has proved the injury report Ex.Ka-8 prepared by him about the injured Jagdish Bairagi, who was examined on 7.11.1992 at 8:40 P.M. He has stated that the injury on the person of injured Jagdish could be caused on 7.11.1992 at 4:00 P.M. with Gandasa. In cross-examination, he stated that the injuries on the persons of injured could also be caused by falling down on the sharp edged weapon. 13. P.W.5 is Shankar Majoomdar who has not supported the prosecution case and was declared hostile. 14. P.W.6 is Jadav Mandal, who too has not supported the prosecution case and was declared hostile. 15. In cross-examination, he stated that the injuries on the persons of injured could also be caused by falling down on the sharp edged weapon. 13. P.W.5 is Shankar Majoomdar who has not supported the prosecution case and was declared hostile. 14. P.W.6 is Jadav Mandal, who too has not supported the prosecution case and was declared hostile. 15. Thereafter, the statement of the appellant/accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated due to enmity. However, he did not produce any oral or documentary evidence in defence. 16. Sri J.S. Virk, learned counsel for the appellant/accused submitted that the injuries mentioned in the injury report (Ex.Ka-8) are not grievous in nature and the medical officer in the medical report has wrongly mentioned the injury on the person of deceased was grievous injury. He further submitted that as per Section 320 IPC, the injury found on the person of injured does not fall within the definition of grievous injury. I find substance in the argument put forth by the counsel for the appellant/accused because the statement of Medical Officer P.W.4 Dr. R. Singh as well as that of injured Jagdish (P.W.2) does not speak that the injury was dangerous to life. Even it was not caused with the intention to kill the injured. From the injury report (Ex.Ka-8), it does not reveal that whether there was any (1) Emasculation (2) permanent privation of the sight of either eye (3) permanent privation of the hearing of either ear (4) privation of any member or joint (5) destruction or permanent impairing of the powers of any member of joint (6) permanent disfiguration of the head face or (7) fracture or dislocation of a bone or tooth. Thus, from the evidence of medical officer P.W.4 Dr. R. Singh and also from the injury report (Ex.Ka-8), it is proved that the injury caused to the injured does not come within the definition of grievous hurt. Hence, the argument of learned counsel for the appellant/accused has force. Therefore, on the basis of the injury report and also from the statement of medical officer and injured, the instant case falls under Section 324 IPC and not under Section 326 IPC as has been held by the trial court. 17. Hence, the argument of learned counsel for the appellant/accused has force. Therefore, on the basis of the injury report and also from the statement of medical officer and injured, the instant case falls under Section 324 IPC and not under Section 326 IPC as has been held by the trial court. 17. Learned counsel for the injured Jagdish Bairagi and the accused/appellant Fhateek have moved an compounding application no. 763/09 before this Court which is supported by the affidavits of appellant-accused Fhateek and that of injured Jagdish Bairagi. Learned counsel for both the parties have submitted that both the parties have entered into compromise and the relations between the parties have become cordial and now they are living peacefully having no dispute with each other. It is further submitted by learned counsel for both the parties that the appeal may be decided in terms of the compromise arrived at in between the parties. 18. After considering all the facts and peculiar circumstances of the case, it is expedient in the interest of justice that the compounding application be allowed and the case may be decided in terms of the compromise arrived at in between the parties. Accordingly, the compounding application is allowed. The compromise arrived at in between the parties is accepted and the offence under Section 324 IPC is accordingly compounded in terms of the compromise arrived at in between the parties. 19. Thus, for the reasons as recorded above, the judgment and order dated 01.10.1996 passed by III Additional Sessions Judge, Nainital in Sessions Trial No. 307/1992, State Vs. Fhateek, convicting the accused/appellant Fhateek u/s 326 IPC and sentencing him to 3½ years’ R.I. with fine of Rs. 1,000/- and in default of payment of fine, to undergo six months’ further R.I. is hereby set aside and he is found guilty of the offence punishable u/s 324 IPC. However, since both the parties have entered into compromise, the offence u/s 324 IPC is compounded and the accused/appellant Fhateek is hereby acquitted of the charge of offence punishable u/s 324 IPC. The appeal is liable to be disposed of accordingly. 20. For the reasons as recorded above, the appeal is disposed of. 21. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith.