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2017 DIGILAW 1290 (JHR)

Faizul Shaikh v. State Of Jharkhand

2017-07-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Uday Choudhury, learned counsel appearing for the petitioners and Mr. Shekhar Sinha, learned A.P.P. for the State. 2. This application is directed against the judgment dated 13.01.2005 passed by the learned Additional Sessions Judge-II, Rajmahal in Criminal Appeal No. 30 of 1999 whereby and where-under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Rajmahal in G.R. No. 261 of 1994 on 12.08.1999 convicting the petitioner for the offences punishable under Sections 323, 341 of the Indian Penal Code and the petitioner nos. 1 and 3 having been sentenced to undergo rigorous imprisonment for three years whereas the petitioner No. 2 has been sentenced to undergo rigorous imprisonment for two years has been affirmed. 3. It has been stated by the learned counsel for the petitioners that there are vital contradictions in the evidence of witnesses. Learned counsel submits that only on account of minor dispute the incident had taken place. It has been stated that the injury suffered by the informant was opined to be simple in nature. Learned counsel further submits that the Investigating Officer of the case has not been examined. An alternative argument has been put forward by the learned counsel for the petitioners to the effect that if this Court is not inclined to interfere in the judgment of conviction the period of sentence imposed upon the petitioners be reduced considering the fact that the petitioners are facing the rigors of the prosecution case since the year 1994. 4. Learned A.P.P. has opposed the prayer made by the petitioners. 5. The prosecution story in brief is that while the informant along with his uncle was sailing the boat to cross the Gumani river, the petitioner No. 1 was taking bath. It is alleged that in course of sailing the boat was shaking upon which the petitioner No. 2 hurled abuse to the informant. It is alleged that thereafter the petitioner No. 2 started assaulting the informant with slaps which was objected to by the uncle of the informant and resultantly the petitioner No. 3 had caught hold of the informant whereas the petitioner No. 2 stabbed his back. It is alleged that thereafter many persons had assembled and the matter was reported to the police. 6. Based on the aforesaid allegation G. R. No. 261 of 1994 was instituted. It is alleged that thereafter many persons had assembled and the matter was reported to the police. 6. Based on the aforesaid allegation G. R. No. 261 of 1994 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken and after charge was framed trial proceeded. 7. In course of trial nine witnesses were examined on behalf of the prosecution. P.W.-1, Sariful Sheikh is an eye-witness to the alleged occurrence who had stated that at the time of the incident he was sitting near the bank of Gumani river and he had seen the informant coming on a small boat whereas the petitioner No. 1 was taking bath. He had further stated that the petitioner No. 2 had gave four slaps to the informant and thereafter the petitioner No. 3 had pushed the informant and the petitioner No. 1 stabbed at his back. P.W.-2, Muddasar Hussain is the uncle of the informant and is an injured person who had stated about the assault committed by the accused persons upon the informant. P.W.-3, Mohammad Rahiman is also an eye-witness to the occurrence who had specifically stated about the petitioner No. 2 assaulting with a dagger on the back of the informant. P.W.-4, Sariful Islam is the informant of the case who has supported the prosecution case and had stated that since the boat was shaking the same was objected to by the petitioner No. 1 and resultantly altercation ensued at which the petitioner No. 2 stabbed on the back of the informant with the assistance of the petitioner No. 3. P.W.-5, Dr. Amarnath Gupta had stated that he had examined the injured Muddasar Hussain (P.W.-2) and had found one sharp penetrating wound on the right side of the back. This witness had also examined P.W.-4, Sariful Islam, and had also found some incised wound on the lower portion of right finger caused by sharp cutting weapon. The injuries found on the P.W.-4 was opined to be simple in nature. P.W. 5, Ajit Kumar Das is a formal witness who had proved the First Information Report. P.W.-7, Anarul Haque @ Anamul, P.W.-8, Ainamul Haque and P.W.-9, Aitabuddin Sheikh, have not supported the prosecution case and have been declared hostile by the prosecution. 8. It appears that the evidence of the informant and his uncle have been supported by the evidence of the eye-witnesses P.W.-1 and P.W. 3. P.W.-7, Anarul Haque @ Anamul, P.W.-8, Ainamul Haque and P.W.-9, Aitabuddin Sheikh, have not supported the prosecution case and have been declared hostile by the prosecution. 8. It appears that the evidence of the informant and his uncle have been supported by the evidence of the eye-witnesses P.W.-1 and P.W. 3. The informant as well as his uncle who have been examined as P.W.-2 and P.W.-4 have categorically stated about the involvement of the petitioners in committing assault upon the informant and his uncle Muddasar Hussain. The specific role of the accused have also been depicted in their evidence as it is the consistent case of the prosecution that initially the assault was committed by P.W.-1 and subsequently the petitioner No. 3 had caught hold of the informant and the petitioner No. 2 had given a knife injury on the back. The evidence of the witnesses, therefore, had established the place of occurrence and are consistent and corroborative to each other and have also specified the role of each of the petitioners in committing the act of the assault upon the informant and his uncle. The non-examination of the Investigating Officer pales into insignificance in view of such evidence. The ocular evidence has duly been supported by the medical evidence. The injury report has also been brought on record. Such circumstance having rightly been considered by the learned trial court the petitioners were convicted for the offences punishable under Sections 323 and 341 of the Indian penal Code as well as under Section 324 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for various terms. The learned appellate court also on proper appreciation of the material available on record dismissed the appeal. 9. There being no reasons to conclude otherwise with respect to the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court the same is, hereby, sustained. 10. However, with respect to the sentence which has been imposed upon the petitioners is concerned, it appears that the petitioners are facing the rigors of the prosecution case since the year 1994 and have also remained in custody for sometime. The act of the petitioners also does not seem to be premeditated or preplanned. 10. However, with respect to the sentence which has been imposed upon the petitioners is concerned, it appears that the petitioners are facing the rigors of the prosecution case since the year 1994 and have also remained in custody for sometime. The act of the petitioners also does not seem to be premeditated or preplanned. Considering the fact that the petitioners are facing the mental agony for the last more than two decades and the fact that they had also remained in custody for sometime, the period of sentence imposed upon the petitioners is modified to the period already undergone. 11. This application stands dismissed with the aforesaid modification in sentence.