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2013 DIGILAW 272 (JHR)

Gupteshwar Choudhary v. State of Jharkhand

2013-02-22

R.R.PRASAD

body2013
JUDGMENT Since, two cases giving rise to aforesaid two appeals, have arisen out of the same transaction, it were heard together and are being disposed of by this common judgment. 2. It is the case of the prosecution, which has given rise to Cr. Appeal No. 755 of 2010 that while the informant was at his door alongwith his two brothers, Ashok Choudhary and Surendra Choudhary came over there and started hurling abuses on them. Meanwhile the appellants of Cr. Appeal No. 755/2010 came variously armed and they also started abusing them. When it was protedted, appellant no. 1 Gupteshwar Choudhary gave a Garasa blow on the head of Ramchandra Choudhary whereas appellant no. 5 Kamlesh Choudhary and appellant no. 2 Binde Choudhary assaulted Ramchandra Choudhary with Barcha and Lathi as a result of which Ramchandra Choudhary sustained five injuries, whereas Ramjanam Choudhary sustained three injuries. Thereupon, Niranjan Choudhary lodged a case, which was registered as Hussainabad P.S. Case No. 40/2006, under Sections 147, 148, 149, 323, 324, 325, 307, 447, 504 of the Indian Penal Code. In that course, appellant Binde Choudhary and Shailesh Choudhary had also sustained injuries and, therefore, Binde Choudhary lodged a counter case, which was registered as Hussainabad P.S. Case No. 41/2006, under Sections 341, 323, 504/34 of the Indian Penal Code on the allegation that while Ashok Choudhary and Surendra Choudhary were quarreling in inebriated condition. Gupteshwar Choudhary went over there to pacify them, all the appellants of Cr,. Appeal No. 895/2010 came over there and started abusing him. When he (informant) alongwith his brother Sailesh reached there they were assaulted by them as a result of which all the three persons sustained injuries. Both the trials were taken up by the same court. The prosecution adduced witnesses in both the cases. After closure of the prosecution cases, statements of the accused persons of both the cases, were recorded and then the appellants of Cr. Appeal No. 755/2010, were convicted for the offence punishable under Sections 307/149 of the Indian Penal Code as well as under Section 148 IPC vide judgment dated 20th August 2010. All of them were sentenced to undergo R.I. for five years for the offence under Section 307/149 IPC, whereas no separate sentence was awarded for an offence under Section 148 IPC. Similarly, all those five appellants of Cr. All of them were sentenced to undergo R.I. for five years for the offence under Section 307/149 IPC, whereas no separate sentence was awarded for an offence under Section 148 IPC. Similarly, all those five appellants of Cr. Appeal No. 895 of 2010, on being convicted for an offence under Section 323/34 of the Indian Penal Code were sentenced to undergo R.I. for six months vide judgment dated 20th August, 2010. 3. Being aggrieved by the judgment of conviction and order of sentence dated 20th August 2010, passed in the aforesaid cases by the Additional Sessions Judge, F.T.C.I, Palamau at Daltonganj, these appeals have been preferred by the appellants. 4. Mr. N.K. Jaiswal, learned counsel appearing for the appellants in Cr. Appeal No. 755 of 2010, submits that Ramchandra Choudhary is said to have been inflicted with five injuries, whereas Ramjanam Choudhary has been alleged to have been inflicted with three injuries but none of the injuries sustained by them has been found to be dangerous to life and, thereby, the Court below has committed illegality in convicting the appellants for an offence under Section 307/149 of the Indian Penal Code. It was further pointed out that while these two appeals were pending for hearing, good sense prevailed upon the parties and they have entered into a compromise and a joint compromise petition has been filed in both the cases and, therefore, the joint compromise petition be considered in the light of the judgment rendered in a case of “Ishwar Singh versus State of Madhya Pradesh, reported in (2008) 15 SCC 667 ”, wherein the Hon'ble Supreme Court in stead of allowing the offence which was non-compoundable to be compounded, gave due consideration of it in imposing substantive sentence. 5. Mr. Bibhash Sinha, learned counsel appearing for the appellants in Cr. Appeal No. 895 of 2010, submits that it is true that the parties have entered into a compromise and have filed a joint compromise petition and, therefore, keeping in view the offences, under which the appellants have been convicted being compoundable, joint compromise petition be accepted and the appellants be acquitted. 6. Having heard learned counsel appearing for the appellants and the learned counsel for the State and looking to the records, I do find that it is the case of the prosecution, which has given rise to Cr. 6. Having heard learned counsel appearing for the appellants and the learned counsel for the State and looking to the records, I do find that it is the case of the prosecution, which has given rise to Cr. Appeal No. 755/2010, that appellant Gupteshwar Choudhary assaulted Ramchandra Choudhary with Garasa, as a result of which Ramchandra Choudhary sustained five injuries on his persons, whereas Kamlesh Choudhary and Binde Choudhary, appellants in Cr. Appeal No. 755/2010, have been alleged to have assaulted Ranjanam Choudhary with Barcha and Lathi as a result of which he sustained three injuries. The injuries sustained by both of them are as follows: Injuries sustained by Ramchandra Choudhary: (i) lacerated wound over scalp anteriorly of right side size 4”x ½” x¼” (ii) lacerated wound over scalp anteriorly on the left side of the mid line 3” x½” x¼” (iii) lacerated wound over scalp on mid line size 3” x½” x¼” (iv) swelling over left forearm lower half with bonny (v) swelling over upper 1/3rd right forearm laterally. Injuries sustained by Ramjanam Choudhary: (i) lacerated wound over scalp of mid line anteriorly 3”x ½” x¼” with bonny (ii) two penetrating wound over forehead 2” above from each other with bonny crepetus present (iii) swelling over left upper eyelid and adjoining forehead.” 7. So far as injury nos. (i) to (iii) sustained by Ramchandra Choudhary are concerned, those injuries have been found to be simple in nature whereas no opinion has been given with respect of injury nos. (iv) and (v). Similarly, injury nos. (i) and (ii) sustained by Ramjanam Choudhary are concerned, opinion was kept reserved by the Doctor, which was never brought on record, whereas injury no. (iii) was found to be simple in nature. 8. So far as the case, which has given rise to Cr. Appeal No. 895 of 2010 is concerned, Gupteshwar Choudhary, Binde Choudhary and Shailes Choudhary have sustained simple injuries. Thus, the question does arise as to whether the trial court is justified in recording order of conviction for an offence under Sections 307/149 of the Indian Penal Code against the appellants of Cr. Appeal No. 755 of 2010. 9. As has been noticed above, the injuries, which were found over the scalp of Ramchandra Choudhary, have been opined to be simple in nature. Whereas injury nos. (iv) and (v), which were found over the forearm, no opinion has been given. Appeal No. 755 of 2010. 9. As has been noticed above, the injuries, which were found over the scalp of Ramchandra Choudhary, have been opined to be simple in nature. Whereas injury nos. (iv) and (v), which were found over the forearm, no opinion has been given. Similarly, in case of Ramjanam Choudhary, no opinion has been given with respect to injury nos. (i) and (ii), whereas injury no. (iii) was found to be simple in nature. Still, the Court for the reasons best known to it has taken injury nos. (i) and (ii) of Ramjanam Choudhary, to be serious in nature though it were never on the vital part of the body and convicted the appellants of Cr. Appeal No. 755/2010, for an offence under Sections 307/149 of the Indian Penal Code. 10. It is true that one lacerated wound was found over the scalp and two penetrating wounds were found over the forehead of Ramjanam Choudhary. But, those injuries have never been said to be grievous nor in absence of any evidence can be said to be dangerous to life and under the situation, the trial court certainly committed illegality in recording conviction for an offence under Section 307/149 of the Indian Penal Code against the appellants of Cr. Appl No. 755/2010. Accordingly, it is set aside. However, keeping in view the fact, which has come on the record, that the injuries were caused by Gadasa and Barcha, which can certainly be said to be a dangerous weapons, the appellants are liable to be convicted for the offence under Section 324/149 of the Indian Penal Code. 11. So far as the impugned judgment giving rise to Cr. Appeal No. 895/2010 is concerned, I do not find any illegality with it, wherein the Court having found the appellants guilty recorded conviction for an offence under Section 323/34 of the Indian Penal Code. But, since, the offences have been compounded, the appellants of Cr. Appeal No. 895/2010, are acquitted of the charges. Whereas, the appellants of Cr. Appeal No. 755 of 2010 are sentenced for the period already undergone in custody. With the aforesaid modification in the judgment of conviction and order of sentence passed in S.T. Case No, 228 of 2007 and also with the modification in order of sentence passed in S.T. No. 56/2008, aforesaid appeals stands disposed of.