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2010 DIGILAW 437 (JHR)

Firangi Sah v. State of Jharkhand

2010-04-08

PRASHANT KUMAR

body2010
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 12.11.2002 and 13.11 .2002 respectively passed by 5th Additional Sessions Judge, F.T.C.-II Godda in Sessions Case No. 87 of 2002, whereby and where under he convicted the appellants under Sections 307/34, 342 and 448 of the IPC and sentenced them to undergo R.1. for seven years under Sections 307/34 IPC, S.I. for one year under Section 342 IPC and S.I. for one year under Section 448 IPC. 2. It is alleged that in the night of 15.6.1993 at about 9 p.m., all the appellants entered in the house of informant and on being instigated by appellant no. 1 (Firangi Sah), appellant no. 3 (Bhaingri Sah) caught hold informant and then appellant no. 2 (Dinesh Sah) inflicted injury on the informant with an intention to commit his murder. It is stated that the informant tried to save his life and caught hold the knife, because of that he received injury on his right palm and left middle finger. It is also alleged that in course of occurrence informant also received an injury on his back caused by knife. 3. It appears that on the next day, the matter was reported to the police and on the basis of said information Mahgama P.S. Case No. 49 of 1993 dated 16.6.1993 instituted and police took up investigation. 4. It appears that after completing the investigation police submitted charge sheet against the appellants under Sections 448, 341, 342, 324 and 307/34 IPC. It further appears that after cognizance the case has been committed to the Court of Session as the offence under Section 307 of the IPC is exclusively triable by the Court of Sessions. 5. The record further reveals that the learned sessions court framed and explained charges to the appellants under Sections 448, 342 and 307/34 of the I.P.C, to which the appellants pleaded not guilty and claimed to be tried. Thereafter the prosecution adduced oral and documentary evidence in support of its case. It then appears that the statements of appellants recorded under Section 313 Cr. P.C. in which their defence is of total denial. It then appears that considering the evidence available on record, the learned court below convicted and sentenced the appellants as aforesaid, against that the present appeal has been filed. 6. While assailing the judgment and findings of court below, Sri. P.C. in which their defence is of total denial. It then appears that considering the evidence available on record, the learned court below convicted and sentenced the appellants as aforesaid, against that the present appeal has been filed. 6. While assailing the judgment and findings of court below, Sri. A.K. Kashyap, Sr. Advocate submits that in the instant case the entire case is based on the evidence of P.Ws 2, 3, 6 and 7. The other witnesses of facts i.e. P.W. 1, 4 and 5, who are co-villagers, have not supported the case of prosecution. It is further submitted that P.W. 2 though in the court had claimed himself to be the eye witness of the occurrence but his attention was drawn to his previous statement made before the police to the effect that he heard about the occurrence. It is submitted that the I.O. has not been examined and therefore the contradiction elicited in the statement of P.W. 2 has not been proved. Thus, serious prejudice caused to the defence. It is further submitted that the evidence of P.W. 7 who is the injured (informant) of the present case is contradictory to his previous statement made in the FIR. It is submitted that the informant has not stated in the FIR that appellant no. 2 and 3 had assaulted him with lathi, but after nine months of the occurrence while deposing in court he made development in the prosecution story and alleged that he was also assaulted by the appellant no. 2 and 3, thus his entire evidence is liable to be discarded. So far the statement of P.W. 3 and 6 is concerned it is submitted that their evidence is contradictory to the evidence of P.W. 7 as stated by him in the FIR. Accordingly, it is submitted that all the appellants are entitled to be acquitted from the charges levelled against them. Sri. Kashyap further submits that, even accepting the evidence of prosecution as available on the record, no case under Section 307/34 IPC is made out. It is submitted that it has come in the evidence as well as other materials available on record that the occurrence took place inside the house of informant. It has also come in the evidence that after receiving injury the informant and his wife raised, alarm and then people gathered. It is submitted that it has come in the evidence as well as other materials available on record that the occurrence took place inside the house of informant. It has also come in the evidence that after receiving injury the informant and his wife raised, alarm and then people gathered. Thus till the arrival of villagers, appellants had ample opportunity to kill the informant, if they had such intention. It is submitted that all the injuries found on the body of informant are simple in nature and there is no injury on the vital part of the body. This also shows that the appellants had no intention to commit murder of informant. It is submitted that at best a case under Sections 323, 324, 342 and 448 is made out. It is submitted that from the date of occurrence by now more than 17 years had already elapsed. Thus the appellants are entitled to get the benefit under the Probation of Offenders Act. For this purpose Sri Kashyap relied upon a judgment of Their Lordships of Supreme Court reported in 2004(7) SCC 659 . 7. On the other hand Sri PK Nayak learned counsel for the informant and Sri Prem Prakash learned Additional P.P. opposed the submission raised on behalf of the appellants and submits that there is repetition of blow by knife and the appellants also assaulted informant with lathi. It is further submitted that the version of P.W. 6 and 7 find full corroboration from the medical evidence. Thus the offence under Section 307 of the I PC is made out. It is submitted that since the maximum punishment under Section 307 I PC is life imprisonment therefore Probation of Offenders Act has no application. It is further submitted that there is no illegality and/or irregularities in the impugned judgment of conviction and order of sentence, therefore, no interference require by this court. 8. Having heard the submission, I have gone through the record of the case and carefully scrutinized the evidence. As noticed above in the instant case P.W. 1, 4 and 5 have been declared hostile. P.W. 2, 3, who are co-villagers and residing in the neighbourhood of informant had stated that they arrived at the place of occurrence after hearing hulla and saw that the appellant no. As noticed above in the instant case P.W. 1, 4 and 5 have been declared hostile. P.W. 2, 3, who are co-villagers and residing in the neighbourhood of informant had stated that they arrived at the place of occurrence after hearing hulla and saw that the appellant no. 1 has inflicted injuries on the informant with knife, whereas appellant no.2 and 3 had assaulted him with lathi. This fact is also supported by P.W. 6 and 7 in their depositions. I further find that aforesaid statement of witnesses find full support from the evidence of P.W. 8, who medically examined the informant and found three incised wound caused by sharp cutting weapon and four injuries caused by hard and blunt substance. Thus it appears that the prosecution has been able to prove that on the date and time of occurrence the appellants entered in the house of informant and caught hold him and then assaulted him with knife and lathi. 9. However, from the perusal of record, I find that the occurrence took place in the night of 15.6.1993 inside the house of informant. It further appears from the evidence available on record that at that time only informant and his wife were present. It has aslo been stated by the informant in his fardbeyan, as well as in his statement that after receiving injuries he raised alarm and then villagers arrived at the place of occurrence. It is worth mentioning that at the time of occurrence appellant no. 1 was armed with knife whereas appellant no. 2 and 3 were armed with lathi. The evidence also shows that after receiving injuries informant fell on the ground and became unconscious. Thus, I find that there is no intervening circumstance which prevented the appellants from killing the informant if they had such intention. Moreover from the perusal of medical evidence, I find that there is' no injury on the vital part of the body. I further find that all the injuries are simple in nature. This shows that the appellants had no intention to commit murder of in-formant. In that view of the matter, no offence under Section 307 of the IPC is made out against the appellants. Since, I have already come to the conclusion that the appellants entered in the house of informant and caught hold him, and then appellant no. 1 assaulted him with knife whereas appellant no. In that view of the matter, no offence under Section 307 of the IPC is made out against the appellants. Since, I have already come to the conclusion that the appellants entered in the house of informant and caught hold him, and then appellant no. 1 assaulted him with knife whereas appellant no. 2 and 3 assaulted him with lathi. I find that against the appellant no. 1 offence under Section 324 of the IPC, whereas against appellant nos. 2 and 3 an offence under Section 323 of the IPC is made out I further find that against all the appellants, offences under Section 342 and 448 of the IPC is made out. I, accordingly, modify the judgment of conviction to the aforesaid extent and convict the appellants for the aforesaid offences. 10. It is admitted position that occurrence took place in the year 1993, thus, about 17 years had already elapsed. It further appears that both the parties are neighbours. As noticed above, injuries caused on the person of informant are simple in nature and not on the vital part of the body. There is also nothing on record to show that the appellants have any other criminal antecedent. Thus, in my view, this is a fit case in which the benefit of Section 4 of Probation of Offenders Act be extended to the appellants. Accordingly, I set aside the order of sentence and direct that the appellants shall furnish a bond of Rs, 25,000/- each with two sureties of the like amount to the satisfaction of learned court below 'for keeping peace in the locality for two years. If the appellants disturb the peace of the locality, it is open for the trial court to cancel the bond and pass substantive sentence against them. 11. In the result, this appeal is dismissed with the aforesaid modification in , the judgment of conviction and order of sentence.