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2012 DIGILAW 1641 (PAT)

Md. Islamuddin v. State of Bihar

2012-12-06

ASHWANI KUMAR SINGH

body2012
JUDGMENT The present appeal has been filed under Section 378(4) of the Code of Criminal Procedure in pursuance of the leave granted by this Court on 18.4.2002 in S.L.A. No. 68 of 2001. 2. The appeal is directed against the judgment and order dated 2.6.2001 passed by Sri Harishankar, the learned Judicial Magistrate 1st class, Araria in Complaint Case No. C 1577/1995/ T.R. No. 814/2001, by which, the opposite party no. 2 Seikh Karu has been held guilty for the offence punishable under Sections 341 and 323 of the Indian Penal Code whereas, opposite party No. 3 Suleman, has been held guilty for the offence punishable under Section 341 of the Indian Penal Code. The learned Magistrate after hearing the parties on the question of sentence, instead of sentencing opposite party nos. 2 and 3 to any punishment released them after due admonition. By order dated 18.4.2002, this Court had granted leave to appeal against the impugned judgment and order only with regard to the question of sentence. 3. As per prosecution case, the appellant had filed a complaint on 24.11.1995 in the court of the learned Chief Judicial Magistrate, Araria with respect to an occurrence which is alleged to have taken place on 22.11.1995 at about 7 p.m. In the complaint, it has been alleged that when the complainant after selling cattle in Jokihat was returning to his house and when he reached near Bara Gaon mill Chowk then all accused persons surrounded him and opposite party no. 2 told Sk. Karu that he was the person who got him married against his will with Fatma. On the order of opposite party no. 2 Sk. Karu, opposite party no. 3 Suleman and Sakil (since dead) caught hold of the complainant. The complainant raised alarm, upon which, witness Fool Mohammad came. It has further been alleged that opposite party no. 2 Sk. Karu gave a dagger blow on the chest of the complainant. However, Fool Mohammad intervened, as a result of which, he sustained a cut injury at his nose. In the meantime, opposite party no.3 Suleman took away Rs. 2,500/- from the pocket of the complainant. On 23.11.1995 a panchayati was convened to resolve the dispute but, the accused persons failed to abide by the decision given by the panches. 4. On the basis of the aforesaid complaint, the case was registered. In the meantime, opposite party no.3 Suleman took away Rs. 2,500/- from the pocket of the complainant. On 23.11.1995 a panchayati was convened to resolve the dispute but, the accused persons failed to abide by the decision given by the panches. 4. On the basis of the aforesaid complaint, the case was registered. The learned Chief Judicial Magistrate, Araria, after taking cognizance of the offence, made over the case for inquiry and trial under Section 192 of the Code of Criminal Procedure to the court of another Magistrate. The statement of the complainant was taken on oath. In course of inquiry, three witnesses were examined on behalf of the complainant. The learned Magistrate, thereafter, issued process against the accused persons under Section 204 of the Code of Criminal Procedure summoning them to face trial. After appearance of the accused persons, opposite party nos. 2 & 3 were charged for the offence punishable under Sections 323 and 341 of the Indian Penal Code, whereas, opposite party no. 3 Suleman was separately charged for the offence under Section 379 of the Indian Penal Code. The accused persons pleaded not guilty to the offence and claimed to be tried. 5. In course of trial, altogether three witnesses, including the complainant were examined in support of the charges. They are Fool Mohammad (PW 1), Abul @ Rabul (PW 2) and Md. Islamuddin (PW 3). 6. After discussing the evidence on record, the trial court came to the conclusion that the prosecution had failed to prove the charge under Section 379 of the Indian Penal Code against opposite party no. 3 Suleman and, thus, the trial court acquitted him of the aforesaid charge. 7. I find from the record that though, there is allegation that P.W. 1 Fool Mohammad had sustained a cut injury on his nose but, no injury report has been brought on record. It is true that the witnesses are consistent on the point of assault but, the ocular testimony of the witnesses examined on behalf of the complainant has not been corroborated by medical evidence. 8. Admittedly, opposite party nos. 2 & 3 have got no criminal antecedent. It is true that the witnesses are consistent on the point of assault but, the ocular testimony of the witnesses examined on behalf of the complainant has not been corroborated by medical evidence. 8. Admittedly, opposite party nos. 2 & 3 have got no criminal antecedent. It is true that nobody can claim the benefit of Section 3 of the Probation of Offenders Act as a matter of right and the court has to pass appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. 9. In the present case, apparently, the dispute between the parties is of trivial nature. The alleged occurrence is said to have taken place 17 years back. This period is enough to exhaust anybody mentally, physically and economically and, thus, after lapse of such period, it would not be proper to send a person to jail. Even on merit, I do not find that the court below committed any apparent illegality in releasing opposite party nos. 2 & 3 after due admonition instead of sentencing them to imprisonment. 10. I, thus, find no merit in the present appeal. It is dismissed, accordingly.