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2017 DIGILAW 693 (JHR)

Abdul Ajij @ Ajij Mian v. State Of Jharkhand

2017-04-13

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. Heard Mr. Binod Kumar Jha, learned counsel for the petitioners and Mr. Ashok Kumar, learned A.P.P. appearing on behalf of the State. 2. In this application the petitioners have challenged the order dated 03.09.2002 passed in Cr. Appeal No.90 of 1996 and 95 of 1996 passed by the learned 3rd Additional District and Sessions Judge, Deoghar whereby and where under the judgment and order of conviction passed by the learned Judicial Magistrate, Ist Class, Deoghar in connection with G.R. No.392 of 1985 convicting the petitioners for the offences punishable under Sections 147 and 447/149 of the IPC and sentencing them accordingly has been affirmed. 3. It appears that the first information report was instituted on 13.07.1985 in which it was alleged that while the informant along with his brothers were uprooting and seedling the paddy for plantation, the petitioners and the other accused persons forming an unlawful assembly variously armed with lathi and rod had directed the informant to leave the place. It is also alleged that on an objection made by the informant, the accused persons had started assaulting him with lathi and spade. It is further alleged that the other brothers of the informant were also subjected to assault. On raising an alarm, the other cultivators came to the place of occurrence at which the accused persons had fled away. 4. Based on the aforesaid allegation, Madhupur P.S. Case No.48 of 1985 was instituted against the petitioners and others for the offences punishable under sections 147, 148, 149, 323, 324, 342 and 447 of the IPC. After Investigation culminated in submission of charge-sheet, cognizance was taken by the learned S.D.J.M., Madhupur and the case was transferred for trial before the Judicial Magistrate, Ist Class, Deoghar in G.R. Case No.392 of 1985 who had convicted the petitioners for the offences punishable under Sections 147 and 447/149 and sentenced them accordingly. The appeal preferred by the petitioners being Cr. Appeal No.90 of 1996 and 95 and 1996 was also dismissed by the learned 3rd Additional District and Sessions Judge, Deoghar on 03.09.2002. It has been stated by the learned counsel for the petitioners that the defence had taken plea of non-examination of the Investigating Officer as well as the false implication of the petitioners on account of previous land dispute existing between the parties. It has been stated by the learned counsel for the petitioners that the defence had taken plea of non-examination of the Investigating Officer as well as the false implication of the petitioners on account of previous land dispute existing between the parties. It has also been stated that most of the witnesses are the brothers of the informant and their evidence could not have been relied upon by the learned trial court while convicting the petitioners. It has further been stated that there were several discrepancies in the evidence of the witnesses. Learned counsel submits that the doctor has also not been examined and therefore the injuries upon the person of the informant and his brothers having not been proved, hence, the petitioners deserves to be acquittal. 5. Learned A.P.P. appearing on behalf of the State has opposed the prayer made by the petitioners. 6. It appears that in course of trial, seven witnesses were examined on behalf of the prosecution. P.W.-1 Md. Anwarul Haque is a formal witness. P.W.-2 Ainul is one of the eye-witness who had stated about the incident on the date of occurrence and the manner of assault as well as the part played by the accused persons in committing the assault upon the informant as well as his brothers. This witness has admitted that there is a land dispute existing between the parties. P.W.-3 Chiraguddin is the informant of the case who had stated that while he was uprooting seedling of paddy crops, the accused persons including the petitioners had told him to leave and on his objection he was assaulted and subsequently his other brothers were also assaulted. This witness has also admitted to the factum of the land dispute existing between the parties. It has further been stated by P.W.-3 that the case has also been filed by the accused persons with respect to the same occurrence on the same date. P.W.-4 Abdul Majid is another brother of the informant P.W.-3 who has also stated in similar term as what has been stated by P.W.-3. P.W.-5 Lal Mohammad is the cultivator who had seen the occurrence and had deposed in similar fashion to that of the other eye-witness. P.W.-6 Abdul Razak is also another brother of P.W.-3 who was also working with the informant when the assault by the accused persons had taken place. P.W.-5 Lal Mohammad is the cultivator who had seen the occurrence and had deposed in similar fashion to that of the other eye-witness. P.W.-6 Abdul Razak is also another brother of P.W.-3 who was also working with the informant when the assault by the accused persons had taken place. This witness, however, has stated that the accused persons had never claimed the land in question. P.W.-7 Safique Mian is an independent witness who has stated that while he was ploughing his adjoining land at the place of occurrence, P.W.-3 and P.W.-6 were also uprooting seedling of paddy crop, the accused persons including the petitioners had entered into the plot of land and had committed assault upon them. P.W.-8 Md. Reyasat is one of the son of P.W-6 Abdul Razak who has also stated on similar term to what has been stated by the other eye-witnesses. 7. Although, the defence had claimed that there was a bona fide land dispute between the parties but no documents has been produced by the defence before the learned trial court to substantiate such claim. It is a fact that the doctor and the Investigating Officer of the case was never examined but it is to be seen in view of the evidence of the witnesses as to whether their non-examination was fatal to the prosecution case. It appears that the several eye witnesses had deposed in similar fashion with respect to the petitioners being the aggressors who had entered into the agricultural field of P.W.-3 while he, his brothers as well as the other persons were uprooting seedling of paddy crop and thereafter had assaulted them. The evidence of the eye-witnesses P.Ws.-2, 3, 4, 5, 6, 7 and 8 do sufficiently prove the place of occurrence as well as the manner of occurrence. Moreover, it appears from the evidence of one of the witnesses that with respect to the same occurrence another case had been instituted by the accused persons against the informant party. The occurrence thus seems to have been established by the prosecution witnesses as also the incident of commission of assault by the petitioners upon the P.W.-3 and his other brothers. Thus, the testimony of the witnesses also dilute the claim of the defence of non-examination of the doctor in course of trial. 8. The occurrence thus seems to have been established by the prosecution witnesses as also the incident of commission of assault by the petitioners upon the P.W.-3 and his other brothers. Thus, the testimony of the witnesses also dilute the claim of the defence of non-examination of the doctor in course of trial. 8. The learned trial court, therefore, on proper appreciation of the evidence of the witnesses has rightly convicted the petitioners for the offences punishable under Sections 147 and 447/149 of the IPC whereas acquitting the petitioners for the offences punishable under Sections 323, 324, 342 and 148 of the IPC. The learned appellate court also based on the materials available on record has affirmed the judgment of conviction and sentence passed by the learned trial court. 9. There being no reason to conclude otherwise with respect to the judgment of conviction passed by the learned trial court, the same is hereby sustained. However, with respect to the sentence which has been awarded to the petitioners is concerned, it appears that they are facing rigours of the prosecution case since the year 1985 and had also remained in custody for sometime. Considering the long pendency of the case as well as the period of custody the sentence imposed upon the petitioners is, therefore, modified to the period already undergone by the petitioners. 10. Accordingly, this application stands dismissed with the aforesaid modification in sentence.