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2013 DIGILAW 44 (PAT)

Rashid Churihara v. State of Bihar

2013-01-10

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. 1. This criminal appeal has been directed against the judgment of conviction and sentence order dated 28.08.2001 passed by 1st Additional Sessions Judge. Aurangabad in Sessions Trial No. 134 of 1994/338 of 1997 by which and whereunder he convicted the appellants under Section 323 of the Indian Penal Code and sentenced them to suffer one year rigorous imprisonment. 2. PW 5. Aslam Khalifa gave his written report to officer in charge of Haspura Police Station stating therein that on 11.09.1993, his brother Shamshuddin Khalifa (PW 4) was sitting on chowki in his dalan. At about 06:00 a.m. appellants being armed with deadly weapons came there and started abusing and assaulting the aforesaid Shamshuddin Khalifa and in that course, appellant Rashid Churthara ordered the others to kill him upon which appellant. Ilias Khalifa gave one sword blow causing head injury to Shamshuddin Khalifa whereas rest appellants started assaulting him with lathi fists and slaps. The H.M.T. watch of Shamshuddin Khalifa fell on the ground which was picked up by the appellant, Moin Khalifa. The occurrence was witnessed by the villagers. The reason behind the alleged occurrence is said to be previous enmity. 3. On the basis of aforesaid written report, Haspura P.S. Case No. 58 of 1993 under Sections 448, 323, 324, 407, 379, 504/34 of the Indian Penal Code was registered and. accordingly formal first information report was drawn against the appellants under the aforesaid sections. 4. The matter was investigated by the Investigating Officer and after completion of investigation. He submitted charge-sheet for the offences under Sections 448, 323, 324, 307, 379, 504/34 of the Indian Penal Code against all the appellants. The cognizance of the offences was taken and the case was committed to the Court of Sessions in usual way. 5. The appellants were put on trial and they were charged for the offences punishable under Sections 307, 323, 307/34 and 379 of the Indian Penal Code. 6. To substantiate the charges, prosecution examined, altogether, seven witnesses. The prosecution got exhibited the signature of informant on ferdbeyan as Exhibit-1, injury report as Exhibit-2 formal first information report as Exhibit-3. ferdbeyan as Exhibit-4 and case diary as Exhibit-5. 7. The statements of appellants were recorded under Section 313 of the Cr. PC in which they denied the prosecution story and claimed themselves to be innocence. 8. The defence also adduced documentary evidence. ferdbeyan as Exhibit-4 and case diary as Exhibit-5. 7. The statements of appellants were recorded under Section 313 of the Cr. PC in which they denied the prosecution story and claimed themselves to be innocence. 8. The defence also adduced documentary evidence. The trial Court having considered the evidences available on the record convicted the appellants in the manner as stated above. 9. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and sentence order submitting that there was previous enmity and land dispute between the parties and there was several contradictions in depositions of prosecution witnesses but the learned trial Court over-looked the aforesaid contradictions and previous enmity and passed the impugned judgment of conviction and sentence order which is not in accordance with law. 10. On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order submitting that almost all the prosecution witnesses have made consistent statements on the point of assault and. Therefore, the learned trial Court has rightly convicted the appellants under Section 323 of the Indian Penal Code and there is no scope to interfere into the findings of the learned trial Court. 11. Having heard the contentions of both the parties. I have gone through the record. I find that PW 4. Shamshuddin Khalifa who is injured of this case has specifically stated that he was assaulted by the appellants with the sword and other weapons and I do not find anything in his deposition to disbelieve his statement. It would appear from perusal of the impugned judgment that the learned trial Judge has acquitted the appellants, for the offences punishable under Sections 307, 307/34 and 379 of the Indian Penal Code on the ground that none of the prosecution witnesses had stated that the appellants assaulted the injured with intent to kill him and the doctor as well as Investigating Officer had not been examined by the prosecution. Therefore, I find that not only injured but other eye-witnesses have also made consistent statements on the point of assault and I am of the opinion that the learned trial Court has lightly convicted the appellants for the offence punishable under Section 323 of the Indian Penal Code. Therefore, I find that not only injured but other eye-witnesses have also made consistent statements on the point of assault and I am of the opinion that the learned trial Court has lightly convicted the appellants for the offence punishable under Section 323 of the Indian Penal Code. So far as the quantum of sentence is concerned, admittedly, the alleged occurrence took place in the year 1993 and there was land dispute between the parties prior to the alleged occurrence. Furthermore, I find that no previous conviction had been proved by the prosecution before the trial Court and therefore, in my view, the period already undergone by the appellants in course of trial shall meet the end of Justice and, accordingly, this appeal stands dismissed with the aforesaid modification in sentence order. Appeal dismissed.