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2009 DIGILAW 478 (JHR)

Md. Shakil v. State of Jharkhand

2009-03-31

PRADEEP KUMAR

body2009
JUDGMENT : By Court - This appeal is directed against the judgment of conviction and order of sentence dated 27.6.2001 passed by Sri V.N. Jha, learned 6th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 144 of 1992, by which judgment, learned Sessions Judge found that the sole appellant was guilty under Section 325/323 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year under Section 325 of the Indian Penal Code and rigorous imprisonment for three years under Section 323 of the Indian Penal Code, both the sentences to run concurrently. 2. The prosecution was started on the basis of the fardbeyan given by the informant, Rashida Khatoon (P.W. 5). stating therein that on 8.2.1991, at 5.00 P.M., she was in her house, just besides her house, when she heard that the daughter of Asin, -Naz and her son Javed were making hot exchange of words, she went out to stop the quarrel. Consequently, Md. Shakil came out of his house armed with sword and stated that he would slain them and started abusing with the weapon. The informant asked him not to do so. Then, the accused, Md. Shakil inflicted blow of sword in the right side of her neck and blood started oozing out. She started bleeding from her injury. Thereafter, her gotani, Nazima Khatoon has also came out and she was also assaulted and she received injury on the left Pakhura. It is stated that the occurrence was seen by Md. Roshan Alam and Kurban Ali and others. 3. On the basis of the said fardbeyan, police registered a case under Section 324/ 307 of the Indian Penal Code and after investigation submitted charge-sheet against the accused under both the Sections. 4. Since. Section 324/307 of the Indian Penal Code was exclusively triable by the Court of Sessions the learned Magistrate after taking cognizance of the offence committed the case to the Court of Sessions, where the trial was held. 5. Learned Sessions Judge found that there is no evidence that the accused. Md. Shakil wanted to commit murder of the informant. Since. Section 324/307 of the Indian Penal Code was exclusively triable by the Court of Sessions the learned Magistrate after taking cognizance of the offence committed the case to the Court of Sessions, where the trial was held. 5. Learned Sessions Judge found that there is no evidence that the accused. Md. Shakil wanted to commit murder of the informant. Rashida Khatoon and as such he was acquitted from the case under Section 324/307 of the Indian Penal Code but having seen the injuries caused by the accused which was supported by the evidence of witnesses, the court below convicted the appellant under Sections 325 and 323 of the Indian Penal Code as stated aforesaid. 6. It is submitted by learned counsel for the appellant that it is clear from the statement of the informant in F.I.R. itself that in her presence they were fighting with her son Javed and daughter of Asin. Naz, who were not examined in the trial court. It is further submitted that there was no any intention to cause injury on both of them. It is further submitted that Dr. Kameshwar Prasad Sinha, who examined as P.W. 7 has found only one lacerated injury on the person of the informant, Rashida Khatoon below right ear and in the opinion of doctor, it was caused by long, hard and blunt substance. He has also stated that he has examined the gotani of the informant, Nazma Khatoon (P.W. 4) and on her person also, he found a lacerated wound on her forearm of alJout 2%" above wrist joint, which was also caused by long, hard and blunt substance. 7. Thus, it has not been proved that the injuries were caused by any sharp cutting weapon and in fact in the prosecution case also none of the witnesses stated that the sharp cutting weapon was used by the accused. 8. In that view of the matter, the order of conviction and sentence dated 27.6.2001 passed by the trial court under Section 325/323 of the Indian Penal Code is bad in law and fit to be set aside. 9. Learned counsel for the State had supported the prosecution case and submitted that the conviction under Section 325/323 of the Indian Penal Code is well founded, since, the appellant assaulted the informant and her gotani by the sword. 10. 9. Learned counsel for the State had supported the prosecution case and submitted that the conviction under Section 325/323 of the Indian Penal Code is well founded, since, the appellant assaulted the informant and her gotani by the sword. 10. After hearing both the parties and after going through the evidences on record, I find that the prosecution has examined altogether seven witnesses and the evidences of P.W. 4, Nazma Khatoon and P.W. 5, the informant, Rashida Khatoon are most important as far as offence is concerned. P.W. 5, Rashida Khatoon has supported the case and stated that the hot exchange of words was going on between Javed and Naz on the date of occurrence and the accused, Md. Shakil charged sword upon her, by which she received injuries on her neck. In Para 5 of cross-examination, she has clearly stated that only once she received the injuries on her neck and there is no repetition. P.W. 4, Nazma Khatoon, who was also injured, has also stated that when she came out of the house, she saw that the accused, Md. Shakil was assaulting Rashida Khatoon with sword on her neck and when she intervened, she also received injuries on her hand. The doctor has cross-examined as P.W. 7 and he has very clearly stated that no sharp cutting injuries was found and the injuries were caused by long, hard and blunt substance and dangerous for life. 11. Thus, the trial court not found the offence under Section 324/307 of the Indian Penal Code, rather the prosecution case, as alleged, was also not found proved by the trial court. However, since simple injuries were caused to the informant on her neck and on the hand of gotani of the informant, P.W. 4, the trial court has found the accused guilty for the offence under Section 325/323 of the Indian Penal Code, but in my opinion, since the prosecution has failed to prove that the injuries were caused by sharp cutting weapon like sword and the doctor also found no injury by sharp cutting weapon, the conviction under Section 325 I.P.C. and order of sentence dated 27.6.2001 passed by Sri V.N. Jha, learned 6th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 144 of 1992 is set aside. The appellant has already sentenced for three months rigorous imprisonment under Section 323 of the Indian Penal Code. 12. The appellant has already sentenced for three months rigorous imprisonment under Section 323 of the Indian Penal Code. 12. It is submitted by the learned counsel for the appellant that the appellant has remained in jail for about three months from 9.2.1991 to 11.4.1991 and he has sufficiently been punished. 13. In that view of the matter, the appellant, who has remained in jail for the period of three months and he has already undergone sufficient punishment, his sentence awarded by the court below is reduced to the period already undergone and the appellant, who is on bail, is discharged from the liability of the bail bond. 14. In that view of the matter, this appeal is allowed in part with the aforesaid amendment.