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2020 DIGILAW 194 (JHR)

Sunil Kumar v. State of Jharkhand

2020-01-31

RAJESH KUMAR

body2020
ORDER : 1. Heard Ms. J. Mazumdar, learned counsel for the appellants and Mr. Abhay Kr. Tiwari, learned A.P.P. appearing for the State. 2. This appeal is directed against judgment of conviction dated 28.6.2006 and order of sentence dated 30.6.2006 passed by Shri Kamalesh Mishra, Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 240/99, Tr. No. 146/05 whereby and whereunder the appellants were convicted under Section 379/34 of the IPC and sentenced to undergo R.I. for seven years for the offence under Section 307/34 of the IPC. Further they were directed to undergo R.I. for one year for the offence under Section 379/34 of the IPC. 3. Sahibganj (T) P.S. Case No. 41/1994 has been registered on 29.3.1999 on written petition of Ashok Kumar Yadav (PW-5). As per the allegation, one of the accused Late Om Prakash Yadav has entered into the house of the informant and caught hold of his neck. He has been dragged out of house then these two appellants came with iron rod and lathi and started assaulting the informant and also his brother namely, Pappu Yadav (PW-3), who has come at the place of occurrence for rescuing informant. 4. On the basis of F.I.R. investigation has been initiated and after completion of investigation, appellants have been charge-sheeted. One of the accused, namely, Om Prakash Yadav has died during pendency of the investigation. 5. Thereafter, cognizance has been taken. Case has been committed to the court of sessions and ultimately, charge has been framed against these appellants under above sections to which the appellants pleaded not guilty and claimed to be tried. 6. To substantiate the prosecution story altogether nine witnesses have been examined. 7. PW-6, is Arun Kumar, PW-7, is Sanjay Paswan and PW-8, Umesh Pd. Gupta have been declared hostile. 8. PW-9, Umesh Kr. Yadav is a hearsay witness. 9. PW-1, Manoj Kumar Singh is the I.O. of the case, who has supported the allegation leveled in the F.I.R. 10. PW-2, Dr. Alakh Kumar Mandal is the doctor, who has examined the injured and has proved the injury. As per his testimony, Pappu Yadav (PW-3) has sustained one injury over the head caused by hard and blunt substance but the injury is simple in nature. 11. PW-5, Ashok Kumar Yadav has sustained two injuries on his head caused -by hard and blunt substance and both injuries are simple in nature. 12. As per his testimony, Pappu Yadav (PW-3) has sustained one injury over the head caused by hard and blunt substance but the injury is simple in nature. 11. PW-5, Ashok Kumar Yadav has sustained two injuries on his head caused -by hard and blunt substance and both injuries are simple in nature. 12. PW-3, Pappu Yadav is one of the injured witness, who has supported the incident. There is exaggeration and not supported by the medical evidence. 13. PW-5, the informant, is also an injured witness, who has also supported the incident and has sustained two injuries. He has exaggerated the incident, but the same is not supported by the medical evidence. In his cross-examination at para-22, he has admitted that there a land dispute between the parties for which litigation is going on. 14. PW-4, Vivekanand Yadav is cousin of the informant. He has himself admitted in para-4 of his cross-examination that he is not an eye-witness and further he had narrated the incident as per the information given by the informant. 15. On conclusion of prosecution witnesses, the appellants have been examined under Section 313 of the Cr.P.C. and the defense of the appellants was totally denial. 16. Learned counsel for the appellants has assailed the judgment of conviction on the ground that there is contradiction between the testimony of PW-5 and PW-3 compared with the medical evidence of PW-2. It has also been argued that PW-5 in his cross-examination at para-22 has admitted that there is a land dispute between the parties. Thus, there is every chance of false implication and further no independent witness has supported the incident. 17. Per contra, learned A.P.P. has supported the judgment of conviction and argument has been advanced that the injured witness has supported the prosecution story and gets corroboration from medical evidence. 18. Heard learned counsel for the parties. 19. From perusal of material available on record and after hearing the parties, it appears that injured witnesses (PW-3 and PW-5) have named the appellants as assailants. PW-5 has sustained two simple injuries caused by iron rod over his head, which has been corroborated by the medical evidence of PW-2. Similarly, one injury caused by hard and blunt substance over the head of the PW-3, namely, Pappu Yadav and get corroboration from the medical evidence of PW-2. PW-5 has sustained two simple injuries caused by iron rod over his head, which has been corroborated by the medical evidence of PW-2. Similarly, one injury caused by hard and blunt substance over the head of the PW-3, namely, Pappu Yadav and get corroboration from the medical evidence of PW-2. The injured witness has exaggerated the incident but from close scrutiny of the material available on record, it appears that the appellants have assaulted PW-3 and PW-5 by hard and blunt substance either by lathi or iron rod. The weapon of assault has not been recovered by the I.O. 20. The narration of incident and nature of injury does not support the charge of Section 307 of the IPC. Further the appellants have been convicted under Section 379/34 of the IPC for stealing watch and a sum of Rs. 936/-. This allegation does not get any corroboration and is highly doubtful. 21. Considering the materials on record, this Court finds that the conviction of these appellants under Sections 307 and 379/34 of the IPC is not sustainable. However, the incident has taken place and the injured persons (PW-3 and PW-5) have been assaulted, which has resulted in their simple injury and as such, the appellants stand convicted under Section 323 of the IPC. 22. The appellants have remained in custody pre-trial period from 31.3.1999 to 5.7.1999 and after completion of investigation from 28.6.2006 till 17.8.2006 i.e. they have remained in custody for about five months. The incident is of the year 1999 and the trial has concluded in the year 2006 and the appeal is being heard in the year 2020. 23. Considering the nature of allegation, the injuries sustained by the injured and further the period of litigation as well as the period of custody, these appellants are sentenced for five months i.e. period already undergone. 24. Accordingly, judgment of conviction dated 28.6.2006 and order of sentence dated 30.6.2006 passed by Shri Kamalesh Mishra, Additional Sessions Judge, Fast Track Court, Sahibganj in Sessions Case No. 240/99, Tr. No. 146/05 is modified to the extent indicated above. 25. Since the appellants are already on bail, they are discharged from the liability of their bail bonds. 26. With above modification, the present appeal stands disposed of.