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2024 DIGILAW 731 (JHR)

Ashikul Sk. , S/o. Jami Sk. v. State of Jharkhand

2024-08-12

NAVNEET KUMAR, RATNAKER BHENGRA

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JUDGMENT : These appeals have been filed by the appellants of both these appeals above named against the Judgment of Conviction dated 18.12.2015 and order of sentence dated 21.12.2015 passed in S.T. No. 56 of 2013, arising out of Pakur (Muffassil) P.S. Case No.160 of 2012, corresponding to G.R. Case No.464 of 2012 by learned Additional Sessions Judge-I, Pakur, by which the appellants have been convicted under Sections 341, 323, 324/34, 307/34 of Indian Penal Code and sentenced to undergo imprisonment for one month under Section 341 of IPC, imprisonment for 01 year under Section 323 of IPC, imprisonment for 03 years under Section 324 of IPC and imprisonment for 10 years and fine of Rs.5,000/- under Section 307 of Indian Penal Code and in default of payment of fine, they have been further directed to undergo for one month imprisonment and it was further directed that all the sentences shall run concurrently. 2. The prosecution case is based on the written report of informant namely, Samaul Sk., in which it has been alleged that the accused persons were taking coal from the coal vendor on the road. In the meantime, Sabdul Sk., the brother of the informant protested that the coal vendor is a poor man, so they should not take coal from him. Thereafter, the accused persons started abusing him and accused Badrul Sk. inflicted a blow of Chheni (sharp cutting instrument) upon the brother of the informant. Thereafter, Azad Sk. came with Bhujali and inflicted a blow upon the chest of the brother of the informant; as a result, he sustained injury. The other accused persons assaulted him with fists and slaps. 3. On the basis of written report of informant Md. Samaul Sk., Pakur (Muffassil) P.S. Case No.160 of 2012 dated 07.06.2012 was instituted under Sections 341, 323, 324, 307, 504/34 IPC and after investigation, charge-sheet was submitted against the accused persons under the aforesaid sections and this case was committed to the Court of Sessions and the learned Additional Sessions Judge awarded the sentence to the appellants as aforesaid against which, these appeals have been filed by the appellants. 4. 4. Learned counsel appearing on behalf of the appellants at the outset submitted that this is a case, in which the offence under Section 307 of Indian Penal Code is not at all made out against all the appellants and utmost, the offence under Section 324 of Indian Penal Code is made out against two of the appellants i.e. Azad Sk. and Badrul Sk. and against the rest of the appellants, only offence under section 323 of IPC may be made and therefore, learned counsel submitted that in such circumstances, based upon the evidences, the conviction may be sustained against the submitted sections and the period already undergone by the appellants in the said sections may be considered as sentence sufficiently served to the period already undergone by the appellants. 5. Buttress of arguments, she has further submitted that the injured is PW-7, since he is injured and therefore he said to be the witness and there is no other eyewitness to the occurrence. She has further submitted that PW-1 and PW-2 are the brothers of the injured informant and they have vested interest in supporting the case of the brother and therefore, they are interested witnesses. Further learned counsel for the appellants submitted that from the evidence itself, it seems that they are not the eyewitnesses to the incident and she pointed out from paragraph-6 of PW-1 and submitted that it is apparent that he arrived after the incident and therefore, he is not the eyewitness to the occurrence. She has further stated that PW-2 is also not the eyewitness because she said that even though, he claims that he was present at the place of occurrence, but PW-2 has not intervened to save his brother, which would be a natural reaction and therefore, she submitted that PW-2 is also not the eyewitness. 6. Apart from this, she has stated that the child, from whom the coal was being looted, has not been examined. Learned counsel submitted that the case against the appellants is based only on the testimony of the injured PW-7 and therefore, such serious conviction, particularly, under Section 307 of Indian Penal Code cannot be sustained. 7. 6. Apart from this, she has stated that the child, from whom the coal was being looted, has not been examined. Learned counsel submitted that the case against the appellants is based only on the testimony of the injured PW-7 and therefore, such serious conviction, particularly, under Section 307 of Indian Penal Code cannot be sustained. 7. She has further submitted that as far as the evidence of the doctor is concerned, who is PW-9, it is indicated from his deposition that there are two injuries i.e., one is on the cheek and the another one is on the chest and the learned counsel for the appellants pointed out that the opinion of the doctor, who had stated in his examination-in-chief that both the injuries are reserved till their radiological examination report has come. Learned counsel has further submitted that the doctor has opined in his cross-examination that he cannot say that by which weapon, the injuries were caused. Therefore, learned defence counsel says that accompanied exhibit-4 parallel to the evidence of the doctor also does not indicate the nature of the injury. Therefore, it is not even indicated whether the injuries were grievous or not. Therefore, the counsel appearing on behalf of the appellants says that even the evidence of the doctor also, in which the radiological report has not come, the seriousness or gravity of the injuries has not been indicated or affirmed and therefore, in such circumstances, it is clear that the offence of section 307 of IPC cannot be made out. 8. Learned counsel has also submitted that the assaults, which are said to be serious, have been made by Azad Sk. and Badrul Sk. and there are only two injuries and it is clear that there was no repeated blows by any of the appellants and definitely not by the other three appellants i.e. Ashikul Sk., Jami Sk., Saidul Alam Sk. @ Saidul Sekh. and Badrul Sk. and there are only two injuries and it is clear that there was no repeated blows by any of the appellants and definitely not by the other three appellants i.e. Ashikul Sk., Jami Sk., Saidul Alam Sk. @ Saidul Sekh. Therefore, she says that the nature of the injury, which has not been ascertained by the doctor and the fact that there is no repeated blows and the fact that the incident occurred over the alleged looting of coal and due to objection of the informant, it was a sudden incident and therefore, it cannot be said that there was any intension to cause any grievous injury can be attributed, and therefore Section 307 of IPC actually may not be made out. She has also stated apart from that there is no recovery of Chheni & Bhujal, which were said to be used for assaulting by the appellants. 9. Further, she has stated that, the appellants have already remained in jail for a sufficient period of time as Ashikul Sk. has remained in jail about five months twenty days, Jami Sk. remained six months seven days, Saidul Alam Sk. @ Saidul Sekh remained five months twenty days, Azad Sk. remained one year four months three days and Badrul Sk. remained in custody for about seven months twelve days and therefore based on the aforesaid reasons and custodial report, the conviction under Section 307 of IPC may not be sustained and prays for acquittal of the appellants for conviction under Section 307 of IPC and for the other Sections, i.e. under Sections 324/34 IPC and under Sections 323/34 of IPC, it is prayed that the custody period already undergone by the appellants may be considered sufficient sentence. Learned counsel appearing on behalf of the appellants further submitted that the appellants are ready to pay a sum compensation amount to the injured as the Hon’ble Court may think prudent and reasonable. 10. On the other hand, learned Spl. Learned counsel appearing on behalf of the appellants further submitted that the appellants are ready to pay a sum compensation amount to the injured as the Hon’ble Court may think prudent and reasonable. 10. On the other hand, learned Spl. P.P. appearing on behalf of the State has opposed the submissions raised on behalf of the appellants and submitted that the medical evidence collaborates fully with the prosecution case and also the evidence of the injured informant, who is PW-7 and it is well established that the injured witness is a trustworthy witness and based upon his evidence, the conviction and sentence passed against the appellants by the learned court below be sustained. 11. Learned Spl. P.P. has further submitted that the evidence of the doctor indicates that the injuries were caused by as many as five persons by sharp cutting weapon and submitted that at least the two injuries, which were caused by sharp cutting weapon, one was on the vital part of body, which is chest, she has submitted that based upon such supporting evidences, the conviction under all the Sections along with Section 307 IPC as has been held by the learned trial court along with accompanied sentences are fully established and needs to be sustained. 12. Learned Special PP appearing on behalf of the State has also submitted the custodial report of the appellants is submitted today, which has been received from the Superintendent of Police of the Central Jail, Dumka, which has already been served on 07.04.2024 and she has stated that the appellants Ashikul Sk. has remained in custody for about five months twenty days, Jami Sk. has remained for about six months seven days, Saidul Alam Sk. @ Saidul Sekh remained for about five months twenty days, Azad Sk. has remained in custody for about one year four months three days and Badrul Sk. has remained in jail for about seven months twelve days and the custody period, which were served by the appellants are absolutely meager and therefore, the confinement of the appellants is still required and therefore, it is submitted by the learned Special P.P. that the conviction and sentence passed by the learned court below may be sustained. 13. We have heard the learned counsel for both the parties, noted their submissions and also gone through the records of this case. 14. 13. We have heard the learned counsel for both the parties, noted their submissions and also gone through the records of this case. 14. We noted the submissions that the allegations, which was also supported by the evidences which has been raised before us, it is apparent that the assault was made by five appellants, but the main acquisition is against two of the appellants i.e., Azad Sk. and Badrul Sk. of having assaulted with Chheni & Bhujali. However, at the same time, from the evidence of the doctor, we see that no radiological examination was conducted to affirm the nature of injuries and neither is it indicated whether the injuries are grievous or simple and therefore apparently, it is a great lacuna in the investigation and the case against the appellants and this Court has noted the same. Further, the incident, which seems to be occurred suddenly due to intervention of the informant over the alleged incident, in which the child who was possessing some coal, which was taken by the appellants, as a result of which, the incident took place and therefore, it seems to be a sudden incident and therefore, it cannot just to be said that the offence was well thought and pre-meditated. 15. Therefore, due to lack of nature of injury and the other aforesaid circumstances, we do not think that the conviction under Section 307 of Indian Penal Code be sustained. However, based upon the aforesaid reasons, this Court deem it proper to sustain the conviction under Sections 323/34 IPC as well as 324/34 Indian Penal Code against the appellants. 16. Accordingly, the appellants are acquitted from the charges levelled under Section 307 of Indian Penal Code and the Judgment of conviction dated 18.12.2015 and order of sentenced dated 21.12.2015 passed by the learned court below against the appellants under Sections, 341, 323 and 324/34 of Indian Penal Code be sustained. So far as sentence is concerned under Sections 341, 323 and 324/34 of Indian Penal Code, the appellants are sentenced to the period already undergone by them. 17. So far as sentence is concerned under Sections 341, 323 and 324/34 of Indian Penal Code, the appellants are sentenced to the period already undergone by them. 17. In pursuance of the submissions regarding compensation which has been made by the learned counsel for the appellants, we deem it fit and proper to award of Rs.50,000/-(Rupees Fifty Thousand Only) collective compensation against all the appellants to be paid to the injured within a period of four months from the date of receipt of this order and in default of payment of the same, the appellants will further directed to undergo two years simple imprisonment. 18. Accordingly the appellants are directed to make payment of Rs.50,000/-(Rs. Fifty thousand only) by way of compensation in order to give it to the injured-victim PW-7. In case of the default of payment of fine, the appellants shall undergo simple imprisonment for a period of two years. 19. The learned trial court is directed to ensure that the said fine amount be deposited by each of the appellants within the stipulated period of time and in default of payment of fine, each of the appellants will serve the sentence as awarded by this Court, by taking all necessary measures as per the provisions of law to ensure that the appellants serve the sentence of imprisonment in case of default of payment of fine. 20. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notice shall be sent to the victim PW-7 victim injured and on his appearance, the said fine amount, if so deposited by the appellants, shall be disbursed to him. In case, if the said victim is not traceable or not available or not found at the given address, or does not present before the Court after the notice, the same shall be disbursed to the close or near relatives or kith and kin of the said victim-injured as the concerned learned trial court may deem fit and proper. 21. Let a copy of this judgment be sent to the learned court below along with the Lower Court Records for its compliance. 22. Accordingly, these appeals are dismissed with modification in order of sentence as above.