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2017 DIGILAW 1382 (JHR)

Aghnu Mian v. State Of Jharkhand

2017-08-07

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. - Heard Ms. Madhulika Das Gupta, learned counsel appearing for the petitioners and Mr. Ram Prakash Singh, learned A.P.P. for the State. 2. This application is directed against the judgment dated 30.03.2005 passed by the learned Additional Sessions Judge-IV, F.T.C., Jamtara in Criminal Appeal No. 33 of 2004 whereby and where under the judgment and order of conviction and sentence dated 11.06.2004 passed by the learned Sub-Divisional Judicial Magistrate, Jamtara in G.R. Case No. 332 of 1992 by which the petitioners had been convicted for the offences under Sections 148, 323/149, 324/149, 325/149 and 326/149 of the Indian Penal Code and sentenced to undergo rigors imprisonment for various terms has been affirmed. 3. The prosecution story in brief is that the informant along with others were ploughing their fields when the accused persons variously arms started assaulting them. It is alleged that the informant and others sustained injuries and after the villagers rescued them they were brought to the hospital where they were treated. 4. Based on the aforesaid allegation G.R. Case No. 332 of 1992 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken charge was framed and trial proceeded. 5. In course of trial seven witnesses were examined on behalf of the prosecution. P.W.-1, Siddique Mian, has deposed that he along with his family members were ploughing the field when accused persons variously armed had started assaulting them. He has stated that the assault was made with sword and lathi. He has further deposed that Plot No. 237 and Plot No. 244 belongs to his mother. He has stated that the name of Pahlu Mian was recorded in the record of rights. Pahlu Mian has died issuless and after his death his daughter and his son-in-law came in possession of the said plots. He has also stated about the proceeding under Section 145 Cr. P.C., 1973 going on between the parties. This witness is the brother of the informant. P.W.-2, Sarif Mian, is the informant of the case who has supported the occurrence of assault. He has stated that Plot No. 237 and 244 stand recorded in the name of Pahlu Mian. He has further deposed that his Fulejan Bibi had filed a case under Section 145 Cr. P.C., 1973 which was pending since 1991. The informant is also an injured witness. He has stated that Plot No. 237 and 244 stand recorded in the name of Pahlu Mian. He has further deposed that his Fulejan Bibi had filed a case under Section 145 Cr. P.C., 1973 which was pending since 1991. The informant is also an injured witness. P.W.-3, Rafique Mian, is also an the injured eye-witness who has supported the occurrence of assault. This witness has disclosed that he had inherited the place of occurrence land through his mother Fulejan Bibi. P.W.-4, Islam Mian, is also one of the injured eye-witness who has supported the allegation of assault. P.W.-5, Karim Mian, is also an injured eye-witness. This witness has denied the possession of the accused persons over the place of occurrence land. P.W.-6, Suleman Mian, is also an eye-witness who has supported the assault committed upon the informant and other. P.W.-7, Dr. Damodar Yadav, has proved the injury reports marked as Exhibit-1 to Exhibit-1/ 4. This witness is not the doctor who had treated the injured. 6. Since the prosecution has been able to establish its case beyond all reasonable doubts the petitioners were convicted by the learned Sub-Divisional Judicial Magistrate, Jamtara on 11.06.2004 for the offences under Sections 148, 323/149, 324/149, 325/149 and 326/149 and sentenced them to undergo imprisonment for various terms. The petitioners preferred an appeal being Criminal Appeal No. 33 of 2004 which however was dismissed by the learned Additional Sessions Judge-IV, F.T.C., Jamtara on 30.03.2005. 7. It has been stated by the learned counsel for the petitioners that the evidence of the witnesses suffered from material contradiction more so with respect to the weapon of assault. It has been stated that doctor has not been examined and even the Investigating Officer has also not been examined and such non-examination are fatal to the prosecution case. Learned counsel further submits that the informant parties were the aggressors and a counter case has also been filed against the informant and others. It has been stated that the witnesses examined on behalf of the prosecution are all interested witnesses and, therefore, their evidence cannot be relied upon. Learned counsel further submits that Plot Nos. Learned counsel further submits that the informant parties were the aggressors and a counter case has also been filed against the informant and others. It has been stated that the witnesses examined on behalf of the prosecution are all interested witnesses and, therefore, their evidence cannot be relied upon. Learned counsel further submits that Plot Nos. 237 and 244 belong to the accused having been inherited and the same stands recorded in the name of raiyat Pahlu Mian and, therefore, the act of the informant party would be that of aggressors as they were ploughing the field belonging to the petitioners. 8. Learned A.P.P. has supported the impugned judgment. 9. Although the doctor has not been examined but the injury reports have been proved and have been marked as Exhibit-1 to Exhibit-1/ 4. A perusal of the injury report suggests that there was indiscriminate assault made by the accused persons upon the informant party. The witnesses who have been examined on behalf of the prosecution barring P.W.-6 and P.W.-7 are all injured eye-witnesses and their testimony cannot be disbelieved merely because of the fact that they are related witnesses. The place of occurrence has duly been proved on account of the various documents submitted by the parties as also on account of the oral evidence of the prosecution. Although defence has claimed ownership over the plot nos. 237 and 244 but as it appears that it is disputed question of title as a proceeding which was initiated under Section 145 Cr. P.C., 1973 at the behest of Fulejan Bibi was still pending. The written report was not proved on account of non-examination of the Investigating Officer but it has rightly been held by the learned trial court that the written report can well be gone into with the aid of Section 294 Cr. P.C., 1973 10. The circumstances enumerated above, negates the contentions of the petitioners that the land belonged to them and it was the injured witnesses who were the aggressors. Having rightly considered the aforesaid facts the learned trial court had convicted the petitioners which was subsequently affirmed in appeal. There being no reason to conclude otherwise, this application fails so far as the challenge which has been made to the judgment of conviction is concerned. 11. Having rightly considered the aforesaid facts the learned trial court had convicted the petitioners which was subsequently affirmed in appeal. There being no reason to conclude otherwise, this application fails so far as the challenge which has been made to the judgment of conviction is concerned. 11. As regards the sentence imposed upon the petitioners, it appears that the petitioners are facing rigors of the prosecution case since the year 1992. The petitioners appear to be related to the informant and are engaged in a long standing land dispute. The petitioners have also remained for sometimes in custody. On consideration of the aforesaid fact the period imposed upon the petitioners is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in sentence.