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2020 DIGILAW 311 (JHR)

Alimuddin Mian v. State Of Jharkhand

2020-02-14

RAJESH KUMAR

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JUDGMENT 1. By Court: Heard the parties. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 27.02.2006 passed by Sri Prashant Kumar, Sessions Judge, Jamtara, in Sessions Case No.97 of 2002 whereby the appellant has been convicted for the offence under Sections 354 and 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two years with a fine of 1000/- for the offence under Section 354 of the Indian Penal Code and in default thereof, further rigorous imprisonment for one month and he has been further sentenced to undergo simple imprisonment for six months for the offence under Section 323 of the Indian Penal Code. Both the sentences were directed to run concurrently. 3. Narayanpur P.S. Case No.06 of 2002 dated 08.02.2002 has been registered under Sections 323, 379, 376 and 511 of the Indian Penal Code on the fardbeyan of the informant namely, Khurshida Khatun(P.W-4) wherein it has been alleged that the accused/appellant, who is a co-villager and next door neighbour, has entered into the house of the informant and has insulted her by putting her down and also pulled her cloth. Cause has been disclosed as a dispute regarding cutting of bamboo shrub by the informant and her sister. 4. On the basis of the FIR, investigation has been done and the appellant has been charge sheeted under Sections 376/511, 379 and 323 of the Indian Penal Code. Cognizance has been taken and the case was committed to the court of Sessions and charge has been framed under Sections 376/511 and 323 of the Indian Penal Code. The charge has been read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 5. On conclusion of the trial, the accused/appellant has been convicted and sentenced under the aforesaid Sections of the Indian Penal Code, against which, present appeal has been filed. 6. To substantiate the prosecution story, altogether eight witnesses have been examined. P.W.1-Lukmaan Mian, P.W.2- Kulla Mian and P.W.3-Somra Mian are the co-villagers; P.W.4- Khurshida Khatun is the prosecutrix and informant of this case; P.W.5-Sahidan Bibi is mother-in-law of the informant; P.W.6- Jahiruddin Mian is father-in-law of the informant; P.W.7-Abida Khatun is sister of the informant and one of the victim and P.W.8- Dr. Rajendra Prasad Singh is the Medical Officer. 7. P.W.1-Lukmaan Mian, P.W.2- Kulla Mian and P.W.3-Somra Mian are the co-villagers; P.W.4- Khurshida Khatun is the prosecutrix and informant of this case; P.W.5-Sahidan Bibi is mother-in-law of the informant; P.W.6- Jahiruddin Mian is father-in-law of the informant; P.W.7-Abida Khatun is sister of the informant and one of the victim and P.W.8- Dr. Rajendra Prasad Singh is the Medical Officer. 7. Submission has been advanced by the learned counsel for the appellant that the appellant has wrongly been implicated by the informant. In fact, there was quarrel between the family members of the appellant and the informant and her sister for cutting of bamboo shrub. Mother and sister of the appellant and the informant and her sister were quarrelled themselves and just to take revenge, the appellant has been implicated in this case. Counsel for the appellant has relied upon the testimony of P.W.2- Kulla Mian and P.W.3-Somra Mian, who had deposed that the appellant was not at the place of occurrence rather quarrel has been taken place between the mother and sister of the appellant and the informant and her sister. P.W.1-Lukmaan Mian has deposed that there was quarrel between the appellant and the prosecutrix and her sister, but the sex angle was not there. It was a simply quarrel between the parties. P.W.4-Khurshida Khatun (informant) and P.W.7-Abida Khatun, sister of the informant and injured witness have supported the incident but from their testimony, it appears that they have tried to exaggerate the incident and has given colour of sex just to make the incident more grave. P.W.8-Dr. Rajendra Prasad Singh is the medical officer, who has proved the injury on the leg of the informant caused by hard and blunt substance which is simple in nature. P.Ws.5 and 6 are mother-in-law and father-in-law of the informant and they have supported the incident but they are not the eye witness rather they are hearsay witness. 8. It has been argued that there is material contradiction in the testimony of the prosecution witness, especially referring to P.Ws.2 and 3, who have not been declared hostile. 9. Per contra, learned APP has supported the judgment of conviction and it has been argued that the injured witness P.W.-4 and P.W.-7 have supported the incident, which got corroborated from the medical evidence of P.W.-8. 9. Per contra, learned APP has supported the judgment of conviction and it has been argued that the injured witness P.W.-4 and P.W.-7 have supported the incident, which got corroborated from the medical evidence of P.W.-8. Further, it has been clearly alleged that cloth has been disturbed indicating sex angle and as such, court below has rightly convicted the appellant. 10. From perusal of the record and the testimony of the prosecution witness, it appears that there was a dispute between the parties with regard to the possession of bamboo shrub. The witnesses Nos.2 and 3 have deposed that the quarrel has taken place between the informant and her sister on the one side and mother and sister of the appellant on the other side. P.W.-1 is an independent person and has claimed to be a witness, has deposed that there was quarrel between the appellant and two sisters and the villagers were assembled there but the nature of the incident has been simple quarrel and no sex angle has been alleged by P.W.-1. The testimony of P.Ws.4 and 7 with regard to the nature and reason of incident, suggest that it was a simple quarrel between the parties and the informant and her sister has suffered injury. It appears that sex angle has been imported by the informant and her sister just to make the incident graver. No independent witness has pointed regarding tearing of cloths. 11. In view of the above discussion and considering the materials available on record, the conviction of the appellant under Section 354 of the Indian Penal Code is, hereby, set aside whereas conviction of the appellant under Section 323 of the Indian Penal Code for causing simple injury to the informant and her son is sustained and fine of Rs.10000/- is imposed upon the appellant, to be deposited in the court below within one month from today, which shall be released in favour of the informant and her sister. 12. With the above modification, present appeal stands disposed of. 13. Since, the appellant is already on bail, he is discharged from the liability of the bail bond.