Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 344 (PAT)

Mohamad Ejaj Ahamad v. State of Bihar

2013-03-13

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 15.1.2000 and sentence order dated 16.1.2000 passed by learned Addl. Sessions Judge IX, Saran at Chapra in Sessions trial no. 84/1992 by which and whereunder he convicted the sole appellant for the offence punishable under section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years. 3. The brief fact, which lies to file this criminal appeal, is that P.W. 3, Abdul Wahid Ansari gave his fardbeyan to ASI of Chapra Town police station on 30.12.1990 in injured condition at sadar hospital to this effect that on the same day at about 4 p.m. while he was going to market and reached near Gola of Chota Telpa, the appellant came there and pushed him as a result of which he fell down on the earth and after that the appellant gave several dagger blows causing injuries on his right hand, chest and abdomen. The witnesses came there and saved the life of the informant and after the occurrence, informant was taken to hospital for treatment. 4. On the basis of the aforesaid fardbeyan, Chapra Town P.S. case no.328/1990 for the offence under section 307/34 of the Indian Penal Code was registered and formal FIR was drawn up against the appellant for the above stated offence. The matter was investigated and after investigation, police submitted charge sheet for the offences under sections 324 and 307/34 of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 5. The appellant was put on trial and he was charged for the offence punishable under section 307 of the Indian Penal Code. The appellant denied the charge and claimed to be tried. 6. In course of trial, altogether, six witnesses were examined on behalf of the prosecution and the prosecution also got exhibited documentary evidence including injury report of P.W.3. The statement of the appellant was recorded under section 313 of the Cr. P.C in which he reiterated his innocence. 7. Although no evidence was adduced on behalf of the appellant in support of his defence but from perusal of statement recorded under section 313 of the Cr. The statement of the appellant was recorded under section 313 of the Cr. P.C in which he reiterated his innocence. 7. Although no evidence was adduced on behalf of the appellant in support of his defence but from perusal of statement recorded under section 313 of the Cr. P.C as well as trends of cross-examination of prosecution witnesses, it appears that the defence of the appellant was total denial of the prosecution story. 8. The learned trial court, having relied upon the testimony of prosecution witnesses as well as documentary evidence adduced on behalf of the prosecution, passed the impugned judgment of conviction and sentence order in the manner as stated above. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that the learned trial court has based its findings only on the basis of conjecture and surmises. He further stated that investigating officer has not been examined in this case and the doctor, who examined P.W.3, specifically, stated that injuries found on the person of P.W.3 were not caused in the manner as stated by P.W.3 in his deposition. He further stated that the prosecution failed to prove its case beyond all shadow of reasonable doubts but in spite of that the learned trial court convicted the appellant. Learned counsel for the appellant further submitted that alleged occurrence took place in the year 1990 and the impugned judgment was pronounced by the learned trial court in the year 2001 and at the time of pronouncement of judgment, the appellant was aged about 62 years. Now, the appellant has already become 75 years and, therefore, no purpose would be served if the appellant is sent to jail. 9. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that P.W.3 (informant) as well as other witnesses have supported the prosecution case and P.W.5 has proved injuries found on the person of P.W.3 and, therefore, there is no scope for this court to interfere into the impugned judgment of conviction and sentence order. 10. P.W.1, P.W.2 and P.W.4 claimed themselves to be eye-witnesses of alleged occurrence and all the aforesaid prosecution witnesses stated that the appellant had given dagger blows to P.W.3 causing injury on his chest, abdomen and left hand. 11. P.W.3 is the informant and injured of this case. 10. P.W.1, P.W.2 and P.W.4 claimed themselves to be eye-witnesses of alleged occurrence and all the aforesaid prosecution witnesses stated that the appellant had given dagger blows to P.W.3 causing injury on his chest, abdomen and left hand. 11. P.W.3 is the informant and injured of this case. This witness also stated that the appellant gave dagger blows to him causing injuries on his chest, abdomen and left hand. Furthermore, P.W.3 stated that witnesses came there and saw the occurrence. P.W.3 further stated that when witnesses reached there, appellant fled away from the place of occurrence. 12. Although defence tried to impeach the credibility of the aforesaid prosecution witnesses but could not succeed to elicit anything from the depositions of the aforesaid witnesses and, therefore, I am of the opinion that the aforesaid witnesses clearly proved the occurrence as stated by P.W.3 in his fardbeyan. Furthermore, P.W.5 is a doctor who had examined P.W.3 after the alleged occurrence. This witness found three injuries on the person of P.W.3. This witness stated that he found following injuries on the person of P.W.3 :- 1. Incised wound 1 ½” x ½” x muscle deep cut over superficial and deep muscle of left chest wall; 2. Incised wound 2 ½ ”x 1” x muscle deep on the upper part of front of right arm; 3. Incised wound 2”x ¼” x skin deep cut of superficial muscle on the upper part of left side of abdomen. 13. This witness opined that all the aforesaid injuries were caused by sharp cutting weapon such as Chura and furthermore, this witness opined that injury no.1 was dangerous to life whereas rest two injuries were simple in nature. This witness admitted in his cross-examination that when P.W.3 was brought before him for the first time, his injuries had not been provided with any first aid. Furthermore, this witness stated that there was no bleeding from injury no.1 when he examined P.W.3 though there should be profuse bleeding from injury no.1. He further admitted that if a person sits on the chest of the victim and gives any blow by sharp cutting pointed weapon with inimical hands, the depth of injuries caused may be deeper in size than injuries found on P.W.3. This witness further stated that in the above stated situation, no injury could be caused on the upper part of abdomen. 14. This witness further stated that in the above stated situation, no injury could be caused on the upper part of abdomen. 14. Although P.W.5 has opined that injury no.1 of P.W.3 was dangerous to his life but P.W.5 has not given any reason for coming to the aforesaid conclusion. Admittedly, injury no.1 was muscle deep cut over superficial and deep muscle of left chest wall and, therefore, only because the aforesaid injury was found on chest of P.W.3, it can not be said that the aforesaid injury was dangerous to the life of P.W.3. 15. Learned counsel for the appellant submitted that even if, it is assumed for the sake of argument that the appellant gave dagger blows to P.W.3, then also, there was no intention to commit murder of P.W. 3 because the nature of injuries suggests that intention of the appellant was only to cause hurt to P.W.3 and, therefore, conviction of the appellant under section 307 of the IPC is not in accordance with law. 16. I find some substance in the above stated submission of learned counsel for the appellant because injuries found on the person of P.W.3 suggest that no much force was used by the appellant in causing hurt to P.W.3 and the nature of the injuries suggests that only intention of the appellant was to cause hurt to P.W.3 and, therefore, in my view, at best, the appellant can be convicted under section 324 of the IPC and accordingly, his conviction is altered into section 324 of the IPC in place of section 307 of the IPC. 17. So far as sentence of the appellant is concerned, admittedly, the appellant has already attained age of 75 years and he had already suffered jail terms for near about six months during the pendency of the trial as well as during the pendency of this appeal. Furthermore, alleged occurrence took place in the year 1990 and, therefore, considering the aforesaid circumstances, in my view, the ends of justice would be met, if the appellant is sentenced to the period already undergone by him in course of trial as well as during the pendency of the appeal. 18. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with the modification in the impugned judgment of conviction and sentence order in the manner as stated above.