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2018 DIGILAW 2131 (JHR)

Chamu Mazi v. State Of Jharkhand

2018-09-25

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellants, Mr. Kaushalendra Prasad and Mr. S.K. Srivastava, Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 28.04.2005, passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No.37 of 2002, whereby both the appellants have been convicted for the offence committed and punishable under Section 323 of the Indian Penal Code and awarded sentence of rigorous imprisonment for one year with a fine of Rs. 500/- each and in case of default in payment of fine, further rigorous imprisonment for two months although, by the same impugned judgment the learned trial court has acquitted Mamta Kumari and Sumitra Devi of the charge under Sections 447, 427, 341, 323 and 307/34 of the Indian Penal Code and also acquittal these two appellants namely, Chamu Mazi and Sufal Mahto @ Sufal Yadav of the charge under Sections 447, 427, 341 and 307/34 of the Indian Penal Code. 3. The prosecution case is based upon written report of Balika Devi (P.W.-4), before the officer-in-charge, Jamtara police station on 17.06.2001, wherein the informant has alleged, that today i.e. 17.06.2001 in the morning at 10:00 A.M. when the informant came out of her house, she saw Chamu Mazi and Sufal Mahto (appellants) were grazing their cattle in the paddy field of the informant. On protest made by the informant, the accused Chamu Mazi abused her and ordered to kill the informant, upon which Sumitra Devi and Mamta Kumari thrashed the informant on the ground and Sufal Mahto assaulted the informant on her head by an axe causing bleeding injury and also assaulted the informant by means of handle of axe on her left arm. The informant has further alleged the accused persons have assaulted with intention to kill her. 4. On the basis of written report, police has registered Jamtara P.S. Case No.124 of 2001, dated 17.06.2001, under Sections 341, 323, 307/34 and 427 of the Indian Penal Code against all four accused persons namely, Chamu Mazi, Sufal Mahto, Sumitra Devi and Mamta Kumari. 5. After investigation, the police has submitted final formal report vide charge sheet no.161 of 2001, dated 24.12.2001, under Sections 341/323/307/447 and 427/34 of the Indian Penal Code against all the named accused persons. 5. After investigation, the police has submitted final formal report vide charge sheet no.161 of 2001, dated 24.12.2001, under Sections 341/323/307/447 and 427/34 of the Indian Penal Code against all the named accused persons. The cognizance of the offence has been taken vide order dated 24.12.2001 and the case has been committed to the court of sessions vide order dated 04.02.2002. 6. The charge has been framed against all the four accused persons under Sections 447, 427, 341 and 307/34 of the Indian Penal Code, on 26.09.2002, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and also adduced a number of documentary evidence as exhibits. Guru Manjhi has been examined as P.W.-1, Amala Devi has been examined as P.W.-2, Urmila Devi has been examined as P.W.-3, Balika Devi, informant, has been examined as P.W.4, Saulakh Singh, investigating officer, has been examined as P.W.-5 and Dr. Srinath Mishra, Medical Officer, has been examined as P.W.-6. Endorsement of officer-in-charge on the written report, has been proved and marked as exhibit-1, formal first information report, has been proved and marked as exhibit-2, medical requisition of the investigating officer for treatment of the informant and report on 17.06.2001, has been proved and marked as exhibit-3, injury report of informant, Balika Devi, has been proved and marked as exhibit-4 and supplementary injury of Balika Devi, has been proved and marked as exhibit-4/1. 8. After closure of the prosecution evidence, the statement of the appellants/accused persons have been recorded under section 313 Cr.P.C., on 16.04.2005, to which they pleaded, that false allegations have been levelled against them and they are innocent. But no defence witness has been examined nor documentary evidence has been adduced on behalf of the defence. 9. After hearing the learned counsel for the parties and after perusal of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against both the appellants namely, Chamu Mazi and Sufal Yadav convicting them under Sections 323 of the Indian Penal Code. 9. After hearing the learned counsel for the parties and after perusal of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against both the appellants namely, Chamu Mazi and Sufal Yadav convicting them under Sections 323 of the Indian Penal Code. By the same impugned judgment Mamta Kumari and Sumitra Devi have been acquitted of the charge under Sections 447, 427, 323, 341, 307/34 of the Indian Penal Code and these two appellants have been acquitted of the charge under Sections 447, 427, 341 and 307/34 of the Indian Penal Code. No acquittal appeal has been preferred by the State or the informant against the said acquittal. The appellants have assailed the impugned judgment of conviction and order of sentence by preferring the present appeal before this Hon''ble Court. 10. Heard, learned counsel for the appellants Mr. Kaushalendra Prasad, Advocate. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that the appellants have been acquitted of the graver charge under Section 307/34 of the Indian Penal Code by disbelieving the major part of the prosecution case and as such, conviction of the appellants under Section 323 of the Indian Penal Code is itself doubtful and the appellants are entitled for benefit of doubt. Learned counsel for the appellants has further submitted, that as per the first information report and the evidence led by prosecution witnesses, the material brought on record against Chamu Mazi is that he has only given order to assault the informant, upon which Sufal Yadav has assaulted the informant Balika Devi (P.W.-4) on her head by the sharp portion of the tangi and by the handle of axe on her left arm and as such, the conviction of the appellant Chamu Mazi under Section 323 of the Indian Penal Code is not sustainable in the eyes of law. 11. Heard, Mr. S.K. Srivastava, learned Additional Public Prosecutor appearing on behalf of the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and learned trial court has rightly convicted the appellants under Sections 323 of the Indian Penal Code. 11. Heard, Mr. S.K. Srivastava, learned Additional Public Prosecutor appearing on behalf of the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and learned trial court has rightly convicted the appellants under Sections 323 of the Indian Penal Code. Learned counsel for the State has further submitted, that these two appellants are aggressor as on the order of Chamu Mazi, Sufal Yadav has assaulted the informant on her head causing bleeding injury. Dr. Sri Nath Mishra (P.W.-6) has proved the injury report issued by Dr. R.D. Das, who has examined the victim on 17.06.2001 and the same has been marked as exhibit-4 and supplementary injury report of the informant issued by said Dr. R.D. Das has been proved and marked as exhibit-4/1. Learned counsel for the State has further submitted, that victim of the case, Balika Devi, has been examined as P.W.-4 and she has categorically stated in paragraph 5 of her examination-in-chief that on the order of Chamu Mazi, Sufal Yadav has assaulted on the head of the informant by means of sharp portion of an axe as well as by handle of the axe on her wrist. The victim has also shown the scar of injury on her head and hand to the learned trial court. Learned counsel for the State has further submitted, that Guru Manjhi, who has been examined as P.W.-1, Amla Devi, who has been examined as P.W.-2 and Urmila Devi, who has been examined as P.W.-3 are eye witnesses to the occurrence. Saulakh Singh, investigating officer, who has been examined as P.W.-5, has proved the endorsement in the handwriting and signature of the then, officer-in-charge on the fardbeyan as exhibit-1 and formal first information report as exhibit-2 and the medical requisition for examination of the injured as exhibit-3. Learned counsel for the State has further submitted, that the learned trial court has rightly convicted the appellants under Section 323 of the Indian Penal Code and as such, this Court may not interfere with the impugned judgment of conviction and order of sentence at this stage. 12. Heard, learned counsel for the appellants Mr. Kaushalendra Prasad, Advocate and Mr. Learned counsel for the State has further submitted, that the learned trial court has rightly convicted the appellants under Section 323 of the Indian Penal Code and as such, this Court may not interfere with the impugned judgment of conviction and order of sentence at this stage. 12. Heard, learned counsel for the appellants Mr. Kaushalendra Prasad, Advocate and Mr. S.K. Srivastava, learned Additional Public Prosecutor appearing for the State and perused the record i.e. first information report, framing of charge, evidence of six prosecution witnesses, four prosecution exhibits and the statement of the appellants recorded under Section 313 Cr.P.C. and impugned judgment of conviction and order of sentence. This court has scrutinized the evidence of the prosecution witnesses. P.W.-1, Guru Manjhi, P.W.-2, Amla Devi and P.W.-3, Urmila Devi are admittedly eye witnesses to the occurrence and P.W.-4 Balika Devi is the informant and victim of the case and the evidence of all these prosecution witnesses are consistent to each other. There are no major contradictions in the evidence of these witnesses, so far the commission of the offence is concerned. Saulakh Singh, A.S.I. (P.W.-5), is the investigating officer, who has investigated the case and after finding the case to be true, submitted the chargesheet. Dr. Sri Nath Mishra being a Medical Officer has proved the handwriting and signature of Dr. R.D Das, who has examined the victim, Balika Devi and proved the injury report as exhibit-4 and supplementary injury report as exhibit-4/1. There is nothing on record to dispel the prosecution case as the prosecution witnesses have been cross-examined at length by defence but nothing has been elucidated to disbelieve the prosecution case. Under the aforesaid circumstances, as discuss above this Court is of the opinion that learned trial court has rightly convicted the appellants under Section 323 of the Indian Penal Code and as such, the judgment of conviction dated 28.04.2005, passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No.37 of 2002 is hereby upheld and affirmed. Under the aforesaid circumstances, as discuss above this Court is of the opinion that learned trial court has rightly convicted the appellants under Section 323 of the Indian Penal Code and as such, the judgment of conviction dated 28.04.2005, passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No.37 of 2002 is hereby upheld and affirmed. At this stage, learned counsel for the appellants has submitted, that since the appellants are aged persons as such, instead of sending them jail, it would be appropriate, if the sentence is modified as they have no criminal antecedent and as such, this court is hereby taking judicial notice of the material available on record and the nature and the gravity of the offence committed by the appellants. This Court, after due consideration and after hearing the learned counsel for the State, is of the opinion that sending appellant to jail after 17 years of the occurrence will not give any fruitful result in the society, as learned counsel for the appellants has submitted, that instead of sending the appellants to the jail after 17 years of the occurrence and they have already deposited the fine amount in the court below, the sentence may be modified by this Hon''ble Court. 13. Considering the nature of allegation and dispute between the parties and after hearing the learned counsel for the State, this Court is of the opinion that learned counsel for the appellants is justified in his submission that instead of sending them jail at this age, after 17 years of the occurrence, which will not bring any fruitful result to the society, as such, instead of sentence the appellants to the jail this court is hereby modifies the sentence of rigorous imprisonment for one year by directing the appellants to appear before the learned lower court within three months from today for receiving due admonition under Section 3 of Probation of Offences Act, as the appellants have already deposited the fine amount. 14. In the result, the instant criminal appeal is dismissed with modification in sentence. 15. The appellants, who are on bail, their bail bonds are hereby cancelled. If the appellants will fail to appear before the court below for receiving due admonition within three months from today, they will serve the sentence of rigorous imprisonment for six months. 16. 14. In the result, the instant criminal appeal is dismissed with modification in sentence. 15. The appellants, who are on bail, their bail bonds are hereby cancelled. If the appellants will fail to appear before the court below for receiving due admonition within three months from today, they will serve the sentence of rigorous imprisonment for six months. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.