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2010 DIGILAW 864 (JHR)

Md. Jalil v. State Of Jharkhand

2010-09-06

PRADEEP KUMAR

body2010
JUDGMENT : Pradeep Kumar, J. This appeal is directed against the judgment of conviction dated 15.7.2002 and order of sentence dated 16.7.2002 passed by Shri Lakshmi Kant Sharma, Additional Sessions Judge, Fast Track Court No. 1, Deoghar in Sessions Case No. 178/93/6/2002, by which judgment he found the Appellant guilty u/s 304 Part (I) of the Indian Penal Code and sentenced him to undergo R.I. for 10 years. 2. It is submitted by the learned Counsel for the Appellant that although P. Ws. 3, 4, 5 & 6 all have stated that assault was made by the Appellant, Md. Jalil as well as co-accused, Md. Alam, but the said co-accused Md. Alam was given benefit of doubt only on the ground that the independent witness i.e. P.W.1, has not supported the fact that he assaulted the deceased. But, in fact, the cross-examination of the said witness i.e. P.W.1 which shows that the Appellant, Md. Jalil had no lathi in his hand and subsequently when the deceased, Nasarullah assaulted him with lathi on the head of Md. Jalil then by snatching the lathi from another persons he gave him lathi blow on his head and as such there was no intention on the part of the Appellant to assault the deceased and as such the conviction is bad in law and only fit to be set aside. Moreover, learned Counsel further submitted that at least this case will come u/s 304 Part (II) of the Indian Penal Code, because the Appellant had no intention and it was just a spontaneous assault after the deceased assaulted him. 3. On the other hand, learned Counsel for the State has opposed the prayer, but admits that there is allegation against the Appellant of giving one lathi blow on the deceased and as such the Appellant has rightly been convicted and it requires no interference by this Court. 4. After hearing both the parties and going through the evidences on record, I find that the prosecution case was started on the basis of a Fardbeyan given by Md. Rezaullah-P.W.6 stating therein that on 14.6.1993 at about 1.30 P.M. his brother went to the house of his married daughter to solve the dispute between his daughter and her husband, Md. Alam. Rezaullah-P.W.6 stating therein that on 14.6.1993 at about 1.30 P.M. his brother went to the house of his married daughter to solve the dispute between his daughter and her husband, Md. Alam. The informant was standing outside his house, then the informant heard a 'Hulla' of his brother then, he ran towards the house of the 'samdhi' of his brother and saw that his brother, Nasrulla is being assaulted by Md. Alam and his father, Md. Jalil with 'Lathi and Tangi', causing bleeding injury on his head, due to which deceased fell down. Thereafter, both the accused persons ran away. Then, the informant brought his brother to the hospital at Madhupur, where during treatment he died. 5. On the basis of the said F.I.R. police registered a case under Sections 341/323/324/307/302/34 of the Indian Penal Code and after investigation submitted charge-sheet in the case. 6. Since, the case was exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions where charges were framed by the 1st Additional Sessions Judge, Deoghar u/s 302 of the Indian Penal Code and after trial the sole Appellant was found guilty u/s 304 Part (I) of the Indian Penal Code and sentenced as aforesaid. 7. It appears that in course of trial, the prosecution has examined 9 witnesses. 8. P.W.1, Kurban Mian stated that he reached the place of occurrence where he saw that Md. Jalil assaulted the deceased with 'lathi' on his head, due to which he fell down. But, in his cross-examination, he admitted that firstly the deceased Nasrulla assaulted Jalil with lathi on his head. Thereafter, Jalil snatched lathi from another person and gave him lathi blow. 9. P.W.2, Golo Mian was tendered for cross-examination and nothing was taken from him. 10. P.W.3, Abdul Rahim also stated that he reached the place of occurrence where he saw that Jalil and Alam assaulting the deceased as a result of which he fell down. 11. P.W.4, Sirajuddin also stated that he reached the place of occurrence and he found Jalil giving a lathi blow on the head of the deceased and Alam assaulting with back of he tangi. 12. P.W.5, Salma Khatun also stated that she reached the place of occurrence where she saw Jamil assaulting the deceased with lathi on his head. 13. P.W. 6, Md. Rajulla also stated similar statement of P.W.5 14. 12. P.W.5, Salma Khatun also stated that she reached the place of occurrence where she saw Jamil assaulting the deceased with lathi on his head. 13. P.W. 6, Md. Rajulla also stated similar statement of P.W.5 14. P.W.7, Kapildeo Prasad Kesri is the I.O. of the case and has supported the Fardbeyan and proved the charge-sheet. 15. P.W.8, M.P. Yadav is also I.O. of the case and has proved the charge-sheet. 16. P.W.9, Dr. A.K. Jain. According to him, the deceased had one lacerated wound on scalp and another lacerated wound on the left side of head and both injuries were caused by hard and blunt substance may be lathi. 17. Thus, from the evidences, it appears that although except P.W.1, the other witnesses have stated that two blows; were given, one by the Appellant, Jalil and another by Alam, who was given benefit of doubt by the trial court. The trial court relied only on the independent witness-P.W.1, has come to a finding that the lathi blow which caused the injury oh the head of the deceased, was given by this accused-Appellant, Md. Jalil, but lost sight of the fact that he also stated in his cross-examination that after he was assaulted by the deceased then he snatched lathi from another person and gave him lathi blow. In that view of the matter, the offence will come u/s 304 Part (II) of the Indian Penal Code since he had no intention nor he come to the place of occurrence with lathi in order to assault him or cause his death. He snatched the lathi from another person and gave him lathi blow which might have proved to be fatal. 18. In that view of the matter, the conviction u/s 304 Part (1) of the Indian Penal Code is altered to that of Section 304 Part (II) of the Indian Penal Code and the Appellant who was aged about 65 years on the date of judgment i.e. on 15th July, 2002, is presently aged about 73 years. Hence the Appellant is sentenced to the period already undergone by him i.e. nine and half months during trial. 19. With the aforesaid alternation in the sentence, the appeal is allowed in part. 20. The Appellant is on bail, he is released from the bondage of his bail bond. Appeal partly allowed.