Md. Salim vs The State Of Jharkhand ...... Opp. Party on 13 September, 2019

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Jharkhand High Court

Md. Salim vs The State Of Jharkhand ...... Opp. Party on 13 September, 2019

2. The sole appellant, Md. Salim had preferred this appeal in term of Sections 374(2) read with 389 of the Cr.P.C. being aggrieved and dissatisfied with the judgment of conviction dated 22.01.2007 and order of sentence dated 25.01.2007, passed by learned District & Sessions Judge, Dumka, in Sessions Trial No.58/2004, whereby and whereunder the appellant was held guilty for the offence under Section 324 of the IPC and sentenced to him undergo Rigorous Imprisonment for 01 year.

3. The present appeal was filed on 14.02.2007 and the appeal was admitted vide order dated 21.02.2007 and on the same day provisional bail granted to the appellant by the court below was affirmed. LCR was called for, which has been received and kept on record.

Thereafter matter was listed on 28.01.2019 after a period of 12 years and a report was called for as to whether appellant is dead or alive. The required report has been received which reveals that the appellant is alive.

Further, vide order dated 29.04.2019 this criminal appeal was dismissed for non-prosecution thereafter Cr.M.P. No.1381 of 2019 has been filed and the same has been allowed vide order dated 14.06.2019 and criminal appeal restored to its original file.

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4. The prosecution in brief is that on 03.10.2003, the complainant, Ravi Kant Kumar at 2.30 P.M was at his Darwaja and make some construction in his house in the meanwhile accused persons, namely, Md. Slim, Allauddin, Zalaluddin and Rasho arrived and accused Md. Salim inflicted the blow of Tangi over the neck of complainant resulting to cut and bleeding, thereafter the informant tried to escape, then Allauddin, Zalaluddin and Rasho caught the complainant and assaulted him by blow of fists and slap on this the complainant raised alarm and neighbour arrived, then the accused persons fled away and with the help of neighbour complainant brought to hospital immediately and the fardbeyan of complainant was recorded at Sadar Hospital, Dumka on the same day at 3 P.M. On the basis of these allegations, the present case was registered.

5. After completion of investigation, police submitted Final Form being Final Form No.169/03 on 31.10.2003 under Section 341, 323, 324, 307, 34 of the IPC against accused persons and case was committed to the court of Sessions Judge and numbered as Sessions Case No.58/2004. Thereupon charges were framed against the accused persons u/S 307/34 and 324/34 of the IPC on 25.02.2004 to which they pleaded not guilty and claimed to be tried.

6. During course of trial, altogether 12 witnesses were examined by the prosecution:-

P.W.-1, Chandan Kumar Singh P.W.-2,DeepakSingh P.W.-3, Himanshu Mishra P.W.-4, Ramakant Jha P.W-5 Dilip Kumar Sonkar P.W.-06, Sri Kant Yadav P.W.-07, Bhim Ram, P.W.-08, Shila Nath Singh P.W.-09, Dr. Nasimul Haque P.W.-10, Ravi Kant Kumar(complainant) P.W.11, Kishan Mandal P.W. 12, Smt. Chanchala Devi.

7. Prosecution has also brought on record the following -03- documents which has been marked as :-

Ext.-1, Injury report Ext. -2, is signature of Ravi Kant Kumar on fardbeyan. Ext. 2/1 is signature of Chandan Singh on fardbeyan Ext.-2/2 is signature of Himanshu Mishra on fardbeyan Ext.-3, is fardbeyan Ext.-4, is formal FIR.

8. On the other hand statement of accused persons was recorded under Section 313 Cr.P.C in which they have denied the allegation and pleaded not guilty.

9. Learned Sessions Court after conclusion of the evidence and after hearing the parties found the case is not true under Section 307 of the IPC against the appellant and only case found true under Section 324 of the IPC and held guilty the appellant. Further charges against the other accused, namely, Zalaluddin, Allauddin and Rasho Devi were acquitted from the charges under Section 307/34 and 324/34 of the IPC and they are discharged from the liability of their bail bond.

10. Findings P.W-10, Ravikant, who is informant and supported the case in his examination in chief and submitted that the occurrence took place on 3.10.2003 at 2.30 P.M when he was repairing the house and at that time accused Salim, Zaaluddin, Allaudding and Rasho came and appellant Salim assaulted him by means of Kulhari over his neck and he escaped, then Allauddin, Zalaluddin and Rasho Devi caught him and assaulted by means of fist and slap. On his alarm witness Chandan Singh, P.W.-1 and Hamanshu Mishra, P.W.-3, declare hostile came and brought him to the hospital. P.W.-1, Chandan Singh who supported the prosecution case and manner of the occurrence and injury received by the P.W.-10. P.W.-10 also stated that the he put his signature on fardbeyan which is marked as Ext.-2.

P.W.-9 is Doctor Nasimul Haque, who was posted at Sadar Hospital, Dumka and examined the injured, P.W.-10 and found inside deep wound 2"x skin on the right side of neck, inside deep wound 1/2"x skin on the right side of back. He opined that the injuries were simple in nature caused by sharp -04- cutting weapon like knife. In cross-examination stated that the sharp cutting weapon can not be like tangi. On court question stated that injuries no.1 can be caused and manufactured, if injured take the risk, such injuries can be inflicted by bled which is sharp cutting weapon. Further stated that he has not mentioned the time of injuries and he also stated that he did not find any injuries caused by hard and blunt substance.

P.W.-1, Chandan Kumar Singh, who supported the prosecution's case and soon after the occurrence came to the house of the informant and take him to hospital for treatment. He also supported the manner of the occurrence and injury received by the P.W.-10.

P.W.-02, Deepak Singh, declared hostile. P.W.-03, Himanshu Mishra, declared hostile. P.W.-04, Ramakant Jha, hearsay witness. P.W.-05, Dilip Kumar sonkar, declared hostile. P.W.-06, Sri Kant Yadav, tendered witness P.W.07, Bhim Ram, tendered witness P.W.-08, Shila Nath Singh, tendered witness P.W.-11, Kishan Mandal, I.O of this case in examination in chief stated that he proved the fardbeyan and formal FIR and he inspected the place of occurrence. In cross- examination stated that he did not prepare the sketch map of the place of occurrence. He denied the suggestion that investigation is defective.

P.W.-12 is also hearsay witness.

11. Learned counsel for the appellant in course of arguments has submitted that conviction under Section 324 of the IPC cannot be sustained in the eye of laws as charges under Section 307 of the IPC has not been proved. It is further submitted that P.W-10, informant in his fardbeyan given the description of the weapon used by the appellant to assault him is tangi, but in his evidence before the court has used the name of weapon Kulhari.

Hence, the prosecution has failed to prove its case beyond all reasonable doubts, therefore the appellant cannot be held guilty under the aforesaid Section and the impugned judgment and order deserves to be set aside.

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12. On the other hand learned counsel for the State opposed and submitted that the court below has rightly held the appellant guilty under the aforesaid offence. It is further submitted that the informant/injured was consistent during examination in chief and cross-examination and the fardbeyan was recorded in injured conditions at Sadar Hospital. Hence, there is no illegality in the judgment passed by the trial court and it does not require any interference and the appeal is fit to be dismissed.

13. After hearing the parties and going through the evidence, both oral and documentary, especially evidence of P.W.-10, informant/injured witness, I find that P.W.10 has clearly taken the name of appellant, Md. Salim who had assaulted him by means of Kulhari on his Neck and P.W.-09, Doctor who examined the injured witness, has corroborated the deposition of P.W.-10 with regard to the injury received by him and P.W.-1, Chandan Singh in his evidence has clearly supported the prosecution case and manner of the occurrence and the injury received by the P.W.-10.

In view of the above discussions, I find no infirmity or illegality in the judgment of conviction dated 22.01.2007 and order of sentence dated 25.01.2007, passed by learned District & Sessions Judge, Dumka, in Sessions Trial No.58/2004 and the same is hereby affirmed.

14. Accordingly, this Criminal Appeal is hereby dismissed.

15. The appellant is directed to surrender before the trial court within four weeks to serve the reaming part of the sentence.

16. If the appellant does not surrender within the stipulated period, trial court is directed to take all appropriate steps to arrest the appellant to serve the sentence awarded to him in this case.

Let the LCR be sent back to the court concerned forthwith.

(Anant Bijay Singh, J.) In the High Court of Jharkhand at Ranchi Date:- 13 /09/2019 Fahim/

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