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2017 DIGILAW 1171 (JHR)

Gulab Sheikh v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Ranjan Kumar Singh, learned counsel for the petitioner and Mr. Sudhansu Kumar Deo, learned A.P.P. for the State. 2. This application is directed against the judgment dated 03.09.2002 passed in Criminal Appeal No. 55 of 2001/46 of 2002 by the learned 1st Additional Sessions Judge, Deoghar whereby and where under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate 1st class, Madhupur at Deoghar in connection with G. R. No. 347 of 1997 convicting the petitioner for the offence under Section 325 of I.P.C. and sentencing him to undergo R.I. for 2 years has been affirmed. 3. The allegation made in the FIR is that while the informant was going to Shyam Biri Company to bring Kendu leaves, the petitioner who happens to be his brother-in-law had given one blow of rod on the left leg of the informant. The reason for the occurrence according to the informant is that the petitioner had assaulted the sister of the informant who thereafter was given shelter by the informant. Based on the aforesaid allegations, G.R. No. 347 of 1997 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken charge was framed under Section 325 of I.P.C. and trial proceeded. 4. In course of trial, 5 witnesses were examined on behalf of the prosecution. P.W. 1-Ramdeo Pandit did not support the prosecution case and therefore he was declared hostile by the prosecution. P.W. 2 -Saharun Sheikh did not support the prosecution case and he was also declared hostile by the prosecution. P.W. 3-Abalu Hussain is the informant who has stated that on the date of occurrence when he was going to bring Kendu leaves and as soon as reached the leprosy hospital, the petitioner started abusing him and thereafter petitioner went towards his rick-shaw took out an iron rod and assaulted the informant which resulted in his leg being fractured. This witness has stated that 15 days before the occurrence, the petitioner had turned out his sister from his house after assaulting her. P.W. 4-Alimuddin has stated that at the time of incident, he was sitting on the corner of leprosy hospital and was taking tea. He stated that the informant was going with his Thela and petitioner has taken out a rod from his rickshaw and assaulted the informant on his left leg. P.W. 5-Dr. P.W. 4-Alimuddin has stated that at the time of incident, he was sitting on the corner of leprosy hospital and was taking tea. He stated that the informant was going with his Thela and petitioner has taken out a rod from his rickshaw and assaulted the informant on his left leg. P.W. 5-Dr. Bishnu Nath Das had examined the informant (P.W. 3) and had found fracture on left tibia and fibula bone and the said injuries were found to be grievous. 5. It has been stated by the learned counsel for the petitioner that the evidence of P.W. 3 has not been supported by any of the witnesses. He further submits that two of the independent witnesses namely, P.W. 1 and P.W. 2 have been declared hostile by the prosecution and therefore, the case virtually rests on the evidence of P.W. 3. Further submission has been advanced that the Investigating Officer of the case has not been examined which has caused prejudice to the defence. 6. Learned A.P.P. has opposed the prayer made by the petitioner. 7. It appears that the evidence of P.W. 3 has been corroborated by a chance witness namely, Alimuddin (P.W. 4) who had seen the petitioner taking out a rod from his rick-shaw and assaulting the informant on his left leg with a rod. The evidence of P.W. 3 and P.W. 4 have been supported by the evidence of doctor (P.W. 5) who has found a fracture injury on the left leg of the informant which was found to be grievous in nature. The place of occurrence has been established by the evidence of P.W. 3 and P.W. 4 and therefore, the non-examination of the Investigating Officer has not proved fatal to the defence. 8. The circumstances enumerated above has rightly been considered by the learned trial court while convicting the petitioner under Section 325 of I.P.C. The learned appellate court on proper appreciation of the materials available on record dismissed the appeal preferred by the petitioner. There being no reason to conclude otherwise, the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is hereby sustained. 9. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing the rigors of the prosecution case since the year 1997. There being no reason to conclude otherwise, the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is hereby sustained. 9. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing the rigors of the prosecution case since the year 1997. The assault made by the petitioner was not on the vital part of the body. The petitioner seems to be the brother-in-law of the informant. On such consideration therefore, the period of sentence imposed upon the petitioner is modified to the period already undergone. 10. This application stands dismissed with the aforesaid modification in sentence.