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Jharkhand High Court · body

2017 DIGILAW 1148 (JHR)

Md. Merazuddin Ansari v. State of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard Ms. Rupali Dungdung, learned counsel for the petitioners and Mr. Arun Kumar Pandey, learned A.P.P. for the State. 2. This application is directed against the judgment dated 22.08.2002 passed by the learned Additional Sessions Judge I, Rajmahal in Criminal Appeal No. 12 of 1996 whereby and whereunder the judgment and order of conviction and sentence dated 31.01.1996 passed by the learned Judicial Magistrate 1st class, Rajmahal in G. R. No. 458 of 1990 convicting the petitioner for the offence under Section 323 of I.P.C. has been upheld and the sentence of 6 months Rigorous Imprisonment has been modified and reduced to 2 months R.I. 3. The prosecution story in brief is that a public drain near the house of the informant was closed by the accused persons which led to spreading of drain water outside. It is alleged that on 05.12.1990 when the informant was cleaning the drain, he was abused and assaulted by the accused persons. On hearing the cry of alarm, the son and nephew had also come and they were also assaulted by the accused persons. Based on the aforesaid allegations, Rajmahal P. S. Case No. 273 of 1990 was instituted. After investigation, charge-sheet was submitted under Section 337/323/34 of I.P.C. and thereafter cognizance was taken, charges were framed and thereafter trial proceeded. 4. The learned trial court vide judgment dated 31.01.1996 had convicted the petitioners for the offence under Section 323 of I.P.C. and sentenced them to undergo R.I. for six months. Petitioners preferred an appeal being Criminal Appeal No. 12 of 1996 which however was dismissed on 22.08.2002 by the learned Additional Sessions Judge I, Rajmahal and the sentence imposed upon the petitioners was reduced and modified to 2 months R.I. 5. The prosecution in course of trial had examined as many as 5 witnesses in support of its case. P.W. 1 – Gopinath Choudhary is a hearsay witness who has heard about the incident. P.W. 2 – Md. Irshad Alam has stated that the accused persons had closed the drain and when they went to clean it, his father was assaulted. In trying to save his father, this witness as well as his cousin brother were also assaulted by the petitioners. P.W. 3 – Md. Islam has stated that on hearing the cry of alarm, he went to the place of occurrence and saw the accused persons assaulting his maternal uncle. In trying to save his father, this witness as well as his cousin brother were also assaulted by the petitioners. P.W. 3 – Md. Islam has stated that on hearing the cry of alarm, he went to the place of occurrence and saw the accused persons assaulting his maternal uncle. This witness had also been assaulted by the accused persons. P.W. 4 – Md. Naziruddin is the informant who has stated that the dispute related to closing of the drain and when he was cleaning the drain, he was assaulted by the petitioners and when his son and nephew had come to save him, they were also assaulted. This witness had admitted that a case was also instituted against him, his son and nephew by the accused persons. P.W. 5 – Dr. A. K. Sinha has examined P.W. 3 & 4 and had found certain injuries on their person which were opined to be simple in nature. 6. It has been stated by the learned counsel for the petitioners that the dispute was with relation to a drain and in fact the petitioners had also filed a case against the informant party, but such fact has not been appreciated by the learned trial court. It has also been stated that in the ensuing scuffle the accused persons have also sustained injuries which would suggest that the informant party were the aggressors. Learned counsel further submits that P.W. Nos. 2, 3 & 4 are all related to each other and being interested witnesses their testimony should have been discarded. It has further been stated that no independent witness has come forward to support the case of the prosecution. 7. Learned A.P.P. has opposed the prayer made by the petitioners. 8. It appears that the narration made in the FIR has been supported by the informant P.W. 4 with respect to the assault committed by the petitioners upon him as well as his son and nephew. It is the consistent case of the prosecution that P.W. 2, 3 & 4 were all assaulted by the petitioners and the resultant injuries suffered by them were confirmed by the doctor – P.W. 5 who had found injuries on the person of P.W. 3 & 4. It is the consistent case of the prosecution that P.W. 2, 3 & 4 were all assaulted by the petitioners and the resultant injuries suffered by them were confirmed by the doctor – P.W. 5 who had found injuries on the person of P.W. 3 & 4. Although it has been strenuously argued by the learned counsel for the petitioners that some injuries were also sustained by the petitioners in the scuffle which took place, but no injury report has been brought on record to substantiate such claim. The fact that the criminal case has been instituted against the informant party solidifies the claim of the informant that the incident had taken place. Moreover, the evidence of P.W. 2 and 3 corroborates what has been stated by the informant P.W. 4 with respect to the place of occurrence, the manner of assault and the reason for the assault having been committed upon such witnesses. The Investigating Officer of the case has not been examined, but the same has not caused prejudice to the defence as the consistent evidence of P.W. Nos. 2, 3 & 4 do reveal the place of occurrence and the fact that the incident had taken place between the petitioners and the informant resulting in cases having been instituted by both the sides. Such circumstances has properly been appreciated by the learned trial court while convicting the petitioners under Section 323 of the I.P.C. and sentencing them accordingly. The learned appellate court has affirmed the judgment of conviction, but reduced the sentence awarded to the petitioners to 2 months R.I. 9. Since the prosecution has been able to prove its case beyond all reasonable doubt, this court is not inclined to interfere in the judgment of conviction so awarded by the learned trial court and which has been affirmed in appeal. However, with respect to the sentence imposed upon the petitioners, it appears that the petitioners are facing the rigors of prosecution case since 1990 and they have also for some time remained in custody out of the maximum period of sentence of 2 months R.I. 10. In such circumstances, the sentence imposed upon the petitioners is reduced and modified to the period already undergone. 11. This application is dismissed with the aforesaid modification in sentence.