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2010 DIGILAW 70 (JHR)

Patrik Kindo v. State of Bihar

2010-01-12

PRADEEP KUMAR

body2010
JUDGMENT (1) HEARD the learned counsel for the appellant and the learned counsel for the State. (2) THE instant appeal is directed against the judgment of conviction and order of sentence dated 17th July, 1999 passed in S.T. No. 221 of 1992 by Shri Asgar Ali, 1st Assistant Sessions Judge, Gumla, by which judgment he found the sole appellant guilty u/S. 307 of the I.P.C. and sentenced him to undergo R.I for four years. It is submitted by learned counsel for the appellant that there is no eye-witness of the case except the informant. Even, injury report has not been proved, as such, it cannot be said that the injury caused to the informant, Ishwar Ekka, is dangerous to his life and Section 307 of the Indian Penal Code is bad in law and fit to be set aside. (3) ON the other hand, learned counsel for the State has supported the prosecution case and stated that the informant's injury was caused by Sabal on the head, it must be grievous and dangerous to life, as such, he has rightly been convicted. (4) AFTER hearing both the parties and going through the records, the prosecution case was started on the basis of fardbeyan given by the informant, Ishwar Ekka, stating therein that on 28-7-1990 at 10.30 a.m. when he was going to his paddy field for uprooting the paddy seedlings towards north of his house and when he was on the way, the accused, who was hiding in a maize field, came out and assaulted on the head of the informant by Sabal. Thereafter, the accused has also given 2-3 Sabal blows which hit right hand and leg of the informant. Then, one villager, namely, Fulo Devi, came to save him and on her hulla, the mother of the informant came and took him to the hospital. He stated that one day before the date of occurrence, the accused entered his house and demanded khaini and committed theft of Rs. 80/- from his room, for which Panchayati was held in the village. On the basis of said Ferdbeyan, police registered a case under Sections 307, 323, 324 and 380 of the Indian Penal Code and after investigation, police submitted charge- sheet in the case in all the aforesaid Sections. 80/- from his room, for which Panchayati was held in the village. On the basis of said Ferdbeyan, police registered a case under Sections 307, 323, 324 and 380 of the Indian Penal Code and after investigation, police submitted charge- sheet in the case in all the aforesaid Sections. Since, the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and subsequently the case was tried by learned 1st Assistant Sessions Judge, Gumla, who found the appellant guilty under Section 307 of the Indian Penal Code. (5) IT appears that in the course of the trial, the prosecution has examined as many as seven witnesses. P.W. 1, Josfina Ekka, mother of the informant. P.W. 2, Fulmani Orain, is the villager. P.W. 3, Ishwar Ekka, informant. P.W. 4, Gulkab Ekka, wife of the informant. P.W. 5, Nobel Ekka, is a villager. P.W. 6, Gain Kerketta and P.W. 7, Jovakin Kerketta, were tendered by the prosecution and they have said nothing about the occurrence. . IT appears that P.W. 1, Josfina Ekka, mother of the informant stated that when she heard hulla, she came at the place of occurrence and one of the villager Fulmani Orain, told her that accused (Patrik Kindo) had assaulted her son and she saw that her son was unconscious. Thereafter, she took him to the hospital. P.W. 2, Fulmani Orain, is a villager. She saw the accused (Patrik Kindo) assaulting the informant (Ishwar Ekka) with Sabal on his head and on her hulla, accused threw the sabal and ran away. P.W 3, Ishwar Ekka, informant, has supported the prosecution case and stated that when he was going for uprooting the paddy seedlings then the accused had assaulted him on the back side of his head, on the right hand and legs by Sabal and after making hulla he fell down and become unconscious. He gained his consciousness in the hospital then gave his statement, which was recorded before the officer -in- charge. He also stated that one day before the date of occurrence at night, the accused entered into his house for demand of khaini. Thereafter, he came out from the room with copy, in which Rs. 80/- was kept by him. In the next morning, he had seen that the amount was missing. Thereafter, a Panchayati was held in the village. He also stated that one day before the date of occurrence at night, the accused entered into his house for demand of khaini. Thereafter, he came out from the room with copy, in which Rs. 80/- was kept by him. In the next morning, he had seen that the amount was missing. Thereafter, a Panchayati was held in the village. P.W. 4, Gulab Ekka, wife of the informant told that when she heard about the occurrence then she went there and took him to the hospital. P.W. 5, Nobel Ekka, is a villager, who said that the informant met him in the month of Asharh and told that the accused has committed theft of Rs. 80/-, for which a panchayati was held in the village. (6) THUS, it appears that the prosecution case is in support of the evidence of P.W. 3, informant and independent witness P.W. 2 and also the evidences of P.Ws. 1 and 4. The I.O. and the doctor have not been examined in this case and no injury report proved in the trial Court. It is difficult to say that the injury caused to the informant is grievous in nature and dangerous to his life. In that view of the matter, conviction of the appellant under Section 307 of the Indian Penal Code is bad in law and the same is converted under Section 324 of the Indian Penal Code. Since, the evidence is that the accused assaulted the informant by Sabal, which is dangerous weapon. Accordingly, the sentence of R.I. for four years under Section 307 of the Indian Penal Code is altered to the sentence for two years under Section 324 of the Indian Penal Code. It appears from the record that the appellant was not granted bail. After that, the appellant has filed this appeal on 5- 4-2000 and he remained in custody for more than the conviction passed by the trial Court or by this Court. In that view of the matter, trial Court is directed to release this appellant forthwith, if not wanted in any other case. (7) ACCORDINGLY, this appeal is allowed in part with alteration in the order of sentence. Appeal partly allowed.