Jado Mian @ Sohrab Ansari v. The State of Jharkhand

judgment of conviction and sentence dated 16.01.2008 passed by Sri. Alok Kumar Dubey, learned 5th Additional Sessions Judge, (F.T.C), Dumka in connection with Session Case No.44 of 2007, by which, the appellants have been convicted for the offences under Section 325, 323/34 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for a period of three (03) years for the offence under Section 325/34 of the IPC, however, no separate sentence has been passed for the offfence under Sections 323/34 of the IPC.

2. Heard Mr. Durga Charan Mishra, learned counsel for the appellant and Mr. Tarun Kumar learned counsel for the State.

3. As per the FIR, it is alleged that on 22.12.2004 at about 04:00 P.M., while the informant along with Palton Mandal was taking tea at the Tea Stall of one Dilip Pal and in the meantime, Mahir Mian and Jado Mian i.e, the appellants came there and started abusing and slapped him. On hullah, his elder brother Vijay Kumar Mandal came there and then they had thrashed him on the ground and started pelting bricks and stone and due to which, the left hand of the elder brother of the informant was fractured and he became unconscious.

4. It further transpires that the police had submitted charge-sheet under Sections 341, 323, 337, 504, 506 and 308/34 of the IPC against 2 the appellants, however, the learned Court below had taken cognizance on 19.03.2005 against the appellants under Sections 341, 323, 337, 504, 506 and 308/34 of the IPC. After supplying the police paper to the accused person, the case was committed to Sessions Court. The charges were framed against these appellants on 19.03.2007 under Sections 323, 338 and 308 of the IPC to which they pleaded not guilty and claimed to be tried.

5. At the outset, learned counsel for the appellants has submitted that the present criminal appeal is not being pressed on merit rather he is pressing on the point of sentence. It is further submitted that the appellants have undergone the rigours of trial for more than 18 years. It is further submitted that injured was treated in the private hospital not in the Government hospital and injury report is doubtful and as such, lenient view may be taken.

6. Learned counsel for the State has opposed the prayer and has submitted that the judgment of conviction and sentence dated

16.01.2008 passed by the learned Court below is fit and proper and no interference is required. It is further submitted that the appellants had assaulted the Informant and his elder brother and due to which, the left hand of his elder brother was fractured and as such, the learned Court below has rightly convicted the appellants for the offence under Section 325 and 323/34 of the IPC by taking lenient view. It is further submitted that P.W.8 namely, Vijay Kumar Mandal is the injured person and P.W.10 namely, Subhash Chandra Mandal is the Informant, who have fully supported their case. It is further submitted that P.W.1 namely, Dr. Noel Kisku is the Doctor and P.W.11 namely, Suresh Singh is the Investigating Officer of this case, who have fully supported and corroborated the prosecution case. Thus, this criminal revision may be dismissed.

7. Perused the Lower Court Records of this case and considered the submissions of both the sides. 3

8. It transpires that the occurrence had taken place on 22.12.2004 in the evening at around 04:00 P.M, but the FIR was lodged by the Informant namely, Subhash Chandra Mandal against the appellants on

23.12.2004 at 11:30 A.M. for the offences under Sections 341, 323, 337, 504, 308/34 of the IPC.

9. It further transpires that the charges were framed against these appellants under Section 323, 338, and 308 of the IPC on 19.03.2007 and to which, they pleaded not guilty and claimed to be tried.

10. During the trial, the prosecution got examined eleven witnesses who are as follows:- (i) P.W.1 is Dr. Noel Kisku, (ii) P.W.2 is Deepak Kr. Singh, (iii) P.W.3 is Dilip Pal, (iv) P.W.4 is Anant Saha, (v) P.W.5 is Kanhaia Gupta, (vi) P.W.6 is Abhay Hansda, (vii) P.W.7 is Suman Mandal, (viii) P.W.8 is Vijay Kumar Mandal i.e., injured (ix) P.W.9 is Palton Hansda, (x) P.W.10 is Subhash Chandra Mandal, (i.e., informant) and (xi) P.W.11 is Suresh Singh

11. The prosecution got proved the following documents as the exhibits:- (i) (ii) Exhibit–1 is the Injury Report, Exhibit-2 is the written application, (iii) Exhibit-2/1 is the Endorsement of written application, (iv) Exhibit-3 is the signature of the Shiv Nath Prasad on formal F.I.R.

12. Thereafter, the appellants were examined under Section 313 Cr.P.C on

09.01.2008.

13. It further transpires that P.W.1 (i.e, Dr. Noel Kisku), who is the Medical Officer of MalPahari Hospital and has proved injury report of the injured marked as Exhibit.1.

14. It further transpires that P.W.2 is Deepak Kr. Singh, P.W.3 is Dilip Pal, P.W.4 is Anant Saha, P.W.5 is Kanhaia Gupta and P.W.6 is Abhay Hansda and who have been declared hostile by the prosecution and as 4 such, no reliance can be placed upon their evidence and their evidence is not relevant for the prosecution.

15. It further transpires that P.W-7 is Suman Mandal i.e the informant, who has supported the prosecution case and stated that Manir Mia and Jado Mian came and had assaulted him with hand and stone. When Vijay Mandal came to save him, then Manir Mian had thrashed Vijay Kumar Mandal on the ground causing injury in his hand.

16. It further transpires that P.W-8 is Vijay Kumar Mandal i.e, the informant who has stated that he had been thrashed and abused by the appellants and the appellants had caught hold of his brother namely, Subhash Chandra Mandal and were assaulting him and he had tried to save him then he was thrashed by Manir Mian and due to which, his left hand was fractured and he became unconscious and was taken to the hospital. During his cross-examination, he has stated that he had not been treated at Sikari Pahara Government Hospital rather he was treated in Mohar Pahadi Hospital for five days. P.W.8 has also not stated that he was assaulted by bricks and stone.

17. It further transpires that P.W.9 is Palton Hansda, who also supported the prosecution case on the point of assault and injury sustained by the injured person, although, he had claimed that he had only tried to intervene in the matter.

18. It further transpires that P.W.11 is the Investigating Officer of this case, who stated that the FIR was lodged on 23.12.2004 and the occurrence was taken place on 22.12.2004 and he merely stated that he has recorded the statement of the witnesses and has submitted charge- sheet against the accused persons. During his cross-examination, he stated that he had sent the informant and his elder brother to the hospital. Thus from scrutinizing the evidence of P.W.11, it appears that although the injured Vijay Kumar Mandal had sustained grievous injury 5 and his left hand was fractured, but ‘X-Ray’ report has not been brought on record.

19. Under the Circumstances, the conviction against the appellants under Section 325/34 of the IPC is not made out and at best it can be a case of simply injury under Section 323 IPC.

20. It further transpires from the evidence of the I.O that he had been merely done the table work by submitting charge-sheet.

21. It also transpires that the injured was not treated in any Government hospital, although he has admitted that he was treated in private Hospital but he had not produced any prescription of his treatment done in private hospital.

22. Considering the aforesaid facts that more than 18 years have passed from the occurrence and the appellants have faced long protracted trial and they can be given the benefit under the provision of Section 4 of Probation of Offenders Act.

23. Section 4 of the Probation of Offenders Act, 1958 reads as under:- “Section 4:- Power of court to release certain offenders on probation of good conduct:- to release him on probation of good conduct, (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour. Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may 6 in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”

24. Under the circumstances, the appellants namely, Jado Mian @ Sohrab Ansari & Manir Ansari, are directed to be released on executing bond of Rs.5,000/- each with one surety for a period of one year by giving benefit of Section 4 of the Probation of Offenders Act, 1958 and as such, the appellants are directed to be released on his entering into a bond of Rs.5000/- each with one surety and to appear and receive sentence when called upon during such period, not exceeding two years, and in the meantime, the appellants are directed to keep the peace and be of good behavior.

25. In the result, this criminal appeal is allowed in part.

26. Let the original L.C.R be sent to the learned Court below at once by the Office. (Sanjay Prasad, J.) Raja/-