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2010 DIGILAW 937 (JHR)

Azad Tailor @ Azad Khan v. State of Jharkhand

2010-09-24

PRADEEP KUMAR

body2010
JUDGMENT Pradeep Kumar, J. 1. This appeal is directed against the judgment of conviction dated 4.1.2003 and order of sentence dated 6.1.2003 passed by Shri Prem Prakash Pandey, Additional Sessions Judge, Deoghar in Sessions Case No. 284/01, by which judgment he found the Appellants guilty under Sections 448, 341, 323 and 307/34 of the Indian Penal Code and sentenced them to undergo R.I. for 7 years under Sections 307/34 of the Indian Penal Code and R.I. for 1 year under Section 323 of the Indian Penal Code and R.I. for 1 year under Section 448 of the Indian Penal Code and S.I. for 1 month under Section 341 of the Indian Penal Code. He directed all the sentences shall run concurrently. 2. It is submitted by the learned Counsel for the Appellants that it will appear from the evidences that the fight took place between two parties with regard to the land of their in-laws' since both are related as brother-in-law (sarhu) having married to two sisters and there was no intention to commit any murder. The injuries found by the doctor, is also simple in nature caused by hard and blunt substance. In that view of the matter, the finding of conviction under Sections 307/34 as also under Sections 448 and 341 of the Indian Penal Code is only fit to be set aside. Moreover, learned Counsel further submitted that since both the parties have compromised the matter and compromise petition has been filed in that regard, which has been duly affidavitated by the accused-Appellant and the informant and as such the finding of conviction under Sections 307/34 as also under Sections 448 and 341 of the Indian Penal Code may also be set aside and the Appellants may be allowed to compromise other sections, which are compoundable. 3. On the other hand, learned Counsel for the State has opposed the prayer and submitted that the allegation is that with intention to cause death of the accused, Irshad Tailor had given a blow from stone (lorha), causing serious injuries on the head of the informant and as such allegation under Section 307 of the Indian Penal Code is made out. 4. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a fardbeyan given by the informant, Zakir Husain (P.W.3) stating therein that on the date of occurrence i.e. 30.5.2000 at about 9.30 a.m. the sons, namely, Isrhad Tailor and Naushad Tailor of Azad Tailor (Appellant No. 1) came there and assaulted him. He ran to his house, whereupon, they, entered into his house and assaulted him with iron rod and finally accused, Irshad took a piece of stone (lorha) and caused injury on his lead, due to which he fell down. Then, on hearing 'hullah' the witnesses came and saved him. 5. On the basis of the said FIR police registered a case under Sections 341/448/323/324/307/34 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, finally the case was tried by the Additional Sessions Judge, who found the Appellants guilty as aforesaid. 7. It appears that in course of trial, the prosecution has examined 5 witnesses and 1 defence witness has also been examined. 8. PW 1. Md. Sajid. who is the son of the informant, has stated that on the date of occurrence Le. on 30.5.2000 at about 9.30 a.m. when he was in his house, his father, Zakir Husain had some hot exchange with the accused, Azad Tailor, in the meanwhile, his two sons, namely Irshad Tailor and Naushad Tailor came there and when they wanted to assault his father lie went to his house then both his two sons entered into his house and started assaulting his father with fist blow and thereafter with iron rod. On asking of their father Azad Tailor the accused, Irshad Tailor took a piece of stone (lorha) and gave lorha blow on the head of his father, causing injury. Then, Azad Tailor also gave a lorha blow. He identified the accused persons in Court. In his cross-examination, he admitted that the accused, Azad Tailor, is his maternal uncle in law and he wanted a share in his mama's properties. 9. PW 2, Ashia Khatoon, who is the wife of the informant, has stated that on the date of occurrence Le. He identified the accused persons in Court. In his cross-examination, he admitted that the accused, Azad Tailor, is his maternal uncle in law and he wanted a share in his mama's properties. 9. PW 2, Ashia Khatoon, who is the wife of the informant, has stated that on the date of occurrence Le. on 30.5.2000 at about 9.30 a.m. the accused, Azad Tailor had hot exchange with her husband thereafter she saw two sons of Azad Tailor came there. Seeing them, her husband entered into his house then, all the three accused persons entered into the same house and assaulted her husband firstly with fists thereafter by iron rod. Thereafter, the accused, Azad Tailor gave a lorha blow on the body of her husband. She further stated that the assault was made with an intention to cause death of her husband. She identified the accused persons in Court. She further stated that a fight took place with regard to the land of her father. 10. PW 3, Zakir Husain, who is the informant, has stated that on the date of occurrence i.e. on 30.5.2000 at about 9.30 a.m. there was a hot exchange between him and the accused, Azad Tailor thereafter his two sons, Naushad Tailor and Irshad Tailor came there and entered into his house and assaulted him with fists blow then they assaulted him with iron rod. Thereafter, the accused Irshad Tailor took a piece of stone (lorha) and gave a lorha blow on his head, causing injury on his head and thereafter he was taken to hospital. He identified the accused persons in Court. 11. In his cross-examination, he admitted that there was a fight with regard to the property after his marriage. 12. PW 4, B.K. Singh, the Investigating Officer of this case. He has proved the formal FIR as Ext.-2. He has stated that after investigation he submitted the charge-sheet. 13. PW 5, Dr. Vishwanath Das, who examined the informant, Zakir Husain and found following three injuries on the person of the informant: 1. Lacerated wound 2" x 1/4" x bone deep red in colour on middle portion of skull, 2. Abrasion with tenderness over right lateral side of neck; 3. Abrasion on left side of forehead. In his opinion, all the three injuries were simple in nature, which was caused by hard and blunt substance. The duration of injuries within 6 hours. 14. Lacerated wound 2" x 1/4" x bone deep red in colour on middle portion of skull, 2. Abrasion with tenderness over right lateral side of neck; 3. Abrasion on left side of forehead. In his opinion, all the three injuries were simple in nature, which was caused by hard and blunt substance. The duration of injuries within 6 hours. 14. The defence witness No. 1 has been examined by defence, who stated that both the. parties were fighting with regard to their in laws' property. 15. After going through the evidences, it is apparent that there was no intention to cause the death of the informant as neither any serious injury was caused by rod nor by 'lorha'. The doctor has found that injury Nos. 2 and 3 were caused by lathi and not by rod. He has further stated that injury No. 1 may be caused by some stone, but that was also simple in nature. In that view of the matter, the conviction of the Appellant under Sections 307/34 is not warranted in law and accordingly the same is hereby set aside. The Appellant's are found guilty under Sections 323, IPC as also under Sections 448, 341, Indian Penal Code, as the parties have filed joint compromise petition vide LA. No. 286 of 2010. wherein they have stated that the accused-Appellant No. 1, Azad Tailor and the informant, Zakir Hussain are closely related being brother in law (sarhu) and Appellants Nos. 2 and 3 are nephew of the informant. In that view of the matter, they have compromised the matter and since all the three Sections 323, 448, 341. which are compoundable under Section 320, Code of Criminal Procedure, hence the parties are allowed to compromise the case and accordingly the Appellants are acquitted from the charges. 16. Hence, the judgment of conviction dated 4.1.2003 and order of sentence dated 6.1.2003 passed by Shri Prem Prakash Pandey, Additional Sessions Judge, Deoghar in Sessions Case No. 284/01, is hereby set aside and the appeal is accordingly allowed and the LA. No. 286 of 2010 is also allowed. 17. Since, the Appellants are on bail, they are discharged from the bondage of their bail bond. Appeal allowed.