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2010 DIGILAW 909 (JHR)

Durga Hazra v. State of Jharkhand

2010-09-17

PRADEEP KUMAR

body2010
JUDGMENT (1) THIS appeal is directed against the judgment of conviction and order of sentence dated 26th October, 2002, passed by Sri R. K. Srivastava, Addl. Sessions Judge, F.T.C. Ill, Bokaro, in Sessions Trial No. 119 of 1996, by which judgment, the appellants have been convicted under Sections 307 / 452/148/149/324 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years for the Section 307, 3 years rigorous imprisonment for Section 452, one year rigorous imprisonment under Section 148/149 of the Indian Penal Code and one year rigorous imprisonment under Section 324 of the Indian Penal Code. (2) IT is submitted by learned counsel for the appellants that in the instant case, the prosecution has failed to bring the FIR on record since the I.O. was not examined nor the Fardbean was proved, only the informant proved his L.T.I on the Fardbeyan. Moreover, even the injury report and the Doctor, who examined the injured person, was also not examined in this case. In that view of the matter the convictions of the appellants under Section 307 or 324 is bad in law and fit to be set aside in absence of injury report. It cannot be said as to whether the injured person, P.W. 9-Bashu Hazra has received any injury by tangi and whether injured was serious in nature and was sufficient to cause death or not and as such, the finding of the trial court and convicted the appellants under Sections 307 or 324 of the Indian Penal Code is bad in law and fit to be aside. (3) LEARNED counsel for the State opposes the prayer, but admits that neither the FIR was proved nor the injury report was proved in the trial. In absence of injury report, the court has found appellants guilty under Sections 307 and 324 of the Indian Penal Code. (3) LEARNED counsel for the State opposes the prayer, but admits that neither the FIR was proved nor the injury report was proved in the trial. In absence of injury report, the court has found appellants guilty under Sections 307 and 324 of the Indian Penal Code. (4) AFTER hearing learned counsel for both the parties and going through the record, the prosecution case was started on the basis of Fardbeyan given by P.W. 8- Menu Hazra, stating therein that all the appellants along with the other accused persons who have been acquitted by the trial Court entered into the house of the informant variously armed with lathi and tangi and appellant No. 1, namely Durga Hazra who had tangi in his hand gave tangi blow on the forehead of the Bashu Hazra, P.W.-9 causing serious injury and he became unconscious. On the basis of the said Fardbeyan, the Police registered a case under Sections 147/307/325/323/452 of the Indian Penal Code and submitted charge- sheet after investigation subsequently, since the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions and the trial was held by the Additional Sessions Judge, F.T.C.III, Bokaro and found the appellants guilty. It appears that in course of the trial the neighbouring witnesses, P.W. 1-Debu Hazra, P.W. 2-Sachin Hazra, P.W. 3-Dhiren Hazra, P.W. 4-Mithla Hazrin, all the above witnesses had been declared hostile and they have not supported the prosecution case. The other witnesses are all relatives of the informant, namely, P.W.5-Lalji Hazra, P.W. 6- Dhaneshwari Devi, P.W. 7-Champa Devi, P.W. 8-Menu Hazra and P.W. 9-Bashu Hazra is the victim. They have all stated that all the appellants entered into the house variously armed with lathi and tangi and Durga Hazra assaulted him with Farsa on his forehead causing injury and he felled down. He also received injury at his hand as well as on other parts of his body. (5) THE other witnesses have also stated that no doubt the prosecution has been able to prove the charges under Sections 148, 452 of the Indian Penal Code, but in absence of the injury report and examination of the Doctor, it cannot be said to be a finding under Section 307 or under Section 324 of the Indian Penal Code. (5) THE other witnesses have also stated that no doubt the prosecution has been able to prove the charges under Sections 148, 452 of the Indian Penal Code, but in absence of the injury report and examination of the Doctor, it cannot be said to be a finding under Section 307 or under Section 324 of the Indian Penal Code. (6) IN that view of the matter, the conviction of the appellants under Section 307 and Section 324 are set aside and all the four appellants are found guilty under Sections 148, 452 and 323 of the INdian Penal Code. In view of the fact that the case was initiated in the Year, 1995, and the appellants had undergone rigour of trial and the appeal since last 15 years and there is admitted land disputes between the parties, in that view of the matter, the sentence altered to that period already undergone during trial which is about six months undergone by appellant No. 1 and three months by the other appellants. (7) ACCORDINGLY, the appeal is allowed in part since the appellants are on bail, they are released from the bondage of their bail bonds. Appeal partly allowed.