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2012 DIGILAW 104 (JHR)

Gandur Sao v. State of Jharkhand

2012-01-18

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court.- This appeal arises out of the judgment of conviction dated 27.09.2003 and order of sentence dated 29.09.2003 passed by the learned Additional Sessions Judge. Fast Track Court No. I. Gumla in Sessions Trial No. 57 of 2002, convicting the appellant under Sections 302 and 307, IPC and sentencing him to undergo R.I. for life under Section 302, IPC and R.I. for seven years under Section 307. IPC, However, both the sentences were directed to run concurrently. 2. The prosecution case in short is that the informant -Salma Khatoon (PW 8) in her Jardbeyan recorded on 13.12.2000 at about 8.30 p.m. stated that in the evening of the same day when her husband (deceased) was" in his courtyard and she was in the house of her son Kamruddin, the appellant came and started taking away the bicycle kept in the courtyard of the house. The deceased told him that he has kept the bicycle in mortgage for Rs. 250/- from his brother and if he wants to take away the bicycle he should give the said amount to him. An altercation followed thereafter between them. The appellant asked why he will take his mortgaged bicycle. Meanwhile the appellant assaulted the deceased with iron Dawli, due to which the deceased fell down. On hulla, the informant came there and tried to save her husband. The appellant also assaulted her with Dawli causing bleeding injury on her left palm and forehead. On hulla, the appellant fled away. The villagers took them to hospital for treatment but her husband died ill the way. Later on, the informant came to know that the appellant also assaulted Dukhan Mian (PW 7) with Dawli causing injury on his left ear. He also got medical treatment. 3. Mr. Zaid Ahmad learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence on the various grounds. 4. On the other hand. Mr. D.K. Chakraborty, learned counsel for the State supported the impugned judgment. . 5. The prosecution has examined eleven witnesses, As per the FIR the informant (PW 8) is the only eye witness to the first incident of assault on her husband (deceased), but she has not supported the prosecution case. PW 2 is the doctor who conducted postmortem on the deceased. He found one incised wound on the forehead apart from one abrasion and one bruise. PW 2 is the doctor who conducted postmortem on the deceased. He found one incised wound on the forehead apart from one abrasion and one bruise. He also found blood in the peritorial cavity and rupture of spleen. The incised injury was caused by sharp cutting weapon and other injury was caused by hard and blunt substance. PW 10 is the doctor who examined the informant (PW 8) as well as Dukhan Mian (PW 7) and found injuries on the person of the informant as well as Dukhan Mian (PW 7). Such injuries were found to be simple in nature and caused by hard and blunt substance like 'Dawli', 6. PWs 1, 6 and 7 have consistently supported the prosecution case. so far as the second incident of assault made by the appellant on DiIkhan Mian on the vital part of his body is concerned. PW 11 is one of the Investigating Officer who investigated the case. Other witnesses are either formal or hearsay. 7. After carefully going through the records and hearing the parties at length, in our opinion, the prosecution has not been able to prove it's case against the appellant, so far as the first incident of assault on the husband of the informant (PW 8) is concerned. PW 8 has turned hostile, though she is an eyewitness to the occurrence as per the FIR. However, the prosecution has been able to prove it's case, so far as conviction under Section 307, IPC is concerned. PW s-1, 6 and 7 are consistent on this point apart from the evidence of the doctor (PW 10) 8. In the result, this appeal is partly allowed. The judgment of conviction and order of sentence as passed by the trial Court under Section 302, IPC against the appellant, is hereby set aside. The appellant is acquitted of the charges for the offence under Section 302, IPC. However, the order of conviction and sentence under Section 307, IPC is confirmed. It is informed that the appellant has served his sentence under Section 307, IPC. Accordingly, he is directed to be released forthwith if not wanted in connection with any other case. Appeal partly allowed.