Md. Aasu v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 589 of 2007 Md. Aasu Versus The State of Jharkhand ------- …… Appellant ……. Respondent CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State -------- : Mr. A.K. Kashyap, Sr. Advocate : Mr. Vineet Kr.Vasistha, Spl.PP ------- Oral Judgment in Court 09/Date:11th July, 2023 1. This Cr. Appeal (SJ) No.589 of 2007 has been filed on behalf of the appellant challenging the judgment of conviction dated 18.05.2007 and order of sentence dated 19.05.2007 passed in S.T. No.519 of 2001 (arising out of G.R.No.1894 of 2001) by Sri Ashok Kumar Mishra, learned Additional Sessions Judge, F.T.C-III, Dhanbad by which the appellant i.e. Md. Aasu has been convicted for the offence under section 324, 341 and 307 of the I.P.C and sentenced to undergo R.I. for one month under section 341 IPC, R.I for one year under section 324 IPC and R.I for seven years and to pay the fine of Rs.1000/- and in default S.I for six months under section 307 of the IPC. However, all the sentences have been directed to run concurrently. 2.
Legal Reasoning
The prosecution case, as per the FIR, is that on 10.07.2001 five persons including the appellant came to the house of the informant and assaulted him and his brother due to which he sustained injury on his head. The reason of occurrence is that on the previous night there was vulgar message between both the side but it was compromised by the appellant side on the date of occurrence i.e. 10.07.2021 and thereafter the appellants along with others had entered into his house and assaulted him. 3. Learned Senior Counsel appearing for the appellant has submitted that the impugned judgment of conviction and 2 sentence passed by the learned court below are illegal and not sustainable in the eye of law. It is submitted that all the prosecution witnesses are the interested witnesses and the doctor has found simple injury on the person of the injured. It is submitted that no offence under section 307 IPC is made out rather it is a case which is at best the offences under sections 324/325 of the IPC. The appellant has also remained in custody for 55 days and hence lenient view may be taken. 4. On the other hand, learned Spl.PP appearing for the State has submitted that the impugned judgment of conviction and sentence passed by the learned court below are fit and proper and no interference is required. It is submitted that the learned court below has rightly convicted the appellant for the offence under section 307 IPC as the injured has sustained four injuries and two of the injuries are on the vital part of the body whereas two injuries were not on the vital part. It is submitted that three other accused persons namely Md. Akhtar, Md. Sultan and Md. Mujib have been acquitted by the learned trial court below and yet this appellant has been convicted. It is submitted that the doctor has found simple injury on the persons of the injured. It is submitted that the counter case was instituted on behalf of the appellant side and one Md. Ibrar was also convicted for the offence under section 302 of the IPC in Sessions Trial No.519/2001 vide judgment of conviction dated 18.05.2007 and order of sentence dated 19.05.2007 by the learned Additional Sessions Judge, F.T.C-III, Dhanbad who had also tried the case of the appellant and three other persons. It is further submitted that P.W-1 is the informant namely Md. Ibrar and has fully supported his case. It is submitted that P.W-2 namely Md. Riyaz Khan and P.W-5 namely Md. Sabbir have fully supported and corroborated the 3 case of the informant. It is submitted that P.W-3 is the doctor namely Gauri Shanker Baraik, who has shown the injury on the persons of the injured and P.W-7 Ram Dharam Singh who is the I.O. of this case who has also supported and corroborated the prosecution case and has submitted charge sheet under section 307 of the IPC against the appellant. It is submitted that Exhibit- 2 is the injury report proved by the P.W-3-doctor and the appellant along with other accused persons have committed the murder of the injured, hence this Criminal Appeal may be dismissed. 5. Perused the Lower Court Record and considered the
Legal Reasoning
submissions of the learned counsel for both the sides. 6. It transpires that the informant Md. Ibrar had instituted FIR bearing Jharia P.S. Case No.234 of 2001 under section 143, 341, 337, 323 and 379 of the IPC against five persons namely Md. Rasool, Md. Sultan, Md. Akhtar, Md. Aasu i.e the appellant and Gulam Rasool. 7. The police, after investigation, submitted charge sheet under sections 341, 323 and 324 of the I.P.C on 26.11.2001 against the five persons including the appellant and accordingly the learned C.J.M, Dhanbad has taken cognizance against the appellant for the offence under sections 341, 323 and 324 of the I.P.C. 8. It transpires that after supplying the paper to the appellants and three others, the case was committed to the Court of Sessions Judge. Thereafter, the trial begun. 9. It transpires that after examination of three witnesses charge under Section 307 IPC was added in the light of the provision of section 216 Cr.P.C. 4 10. It transpires that two Sessions Trial were clubbed and tried, one was S.T. No.519/2001 and the other was G.R. No.1894/ 2001. 11. It transpires that prosecution has got examined five (05) witnesses, who are as follows: (i) P.W-1 is Md. Ibrar i.e. the informant, (ii) P.W-2 is Md. Riyaz Khan, (iii) P.W-3 is Dr. Gouri Shankar Baraik, (iv) P.W-4 is Ramdharam Singh i.e. the I.O and (v) P.W-5 is Md. Sabir. The prosecution has got marked the following 12. documents in support of its case, which are as follows:- (i) Exhibit-1 is the Signature on written statement, (ii) Exhibit-2 is the injury report and (iii) Exhibit-1/1 signature of I.O on forwarding of F.I.R. 13. Thereafter the appellant and others were examined under section 313 Cr.P.C on 08.08.2006 by the learned Additional Sessions Judge, F.T.C-III, Dhanbad and to which the appellant denied the circumstances put forth before him. 14. Thereafter the defence has not examined any witnesses but has proved certain documents as Exhibits, which are as follows:- copy of (i) Exhibit-A- Carbon copy of F.I.R of S.T. No.519/01, (ii) Exhibit-B-Carbon copy of charge sheet of S.T.No.519/01, (iii) Exhibit-C- Carbon S.T.No.519/01, (iv) Exhibit-D- Carbon copy of Post Mortem report of Md. Gulam, (v) Exhibit-E- Carbon copy of injury report of Md. Akhtar and (vi) Exhibit-1/1 Carbon copy of injury report of Md. Sultan. charge of 5 15. It transpires that learned court below i.e. Additional Sessions Judge, F.T.C-III, Dhanbad tried both the cases together and has convicted the said Md. Ibrar i.e. the informant of the present case for the offences under section 302 and 341 of the I.P.C and sentenced to undergo RI for life and R.I for one month respectively and also pay fine of Rs.20,000/- and in default of payment of fine he further sentenced to undergo SI for one year. However, the said trial court i.e. learned Additional Sessions Judge, F.T.C-III, Dhanbad has convicted the appellant Mr. Aasu under section 307 of the IPC and sections 341 and 324 of the IPC and sentenced him to undergo R.I for seven years and fine of Rs.1000/- under section 307 IPC, R.I. for one month under section 341 IPC and R.I for one year under section 324 IPC. 16. P.W-3 is the doctor namely Dr. Gouri Shankar Baraik who has found the following injury on the person of the injured which are as follows:- Incised wound of 2” bone deep on back Incised wound of 2” x bone deep on front “(i) side of head caused by sharp cutting weapon. (ii) side of head caused by sharp cutting substance. (iii) blunt substance. (iv) size caused by hard blunt substance. Scratch on (R.O) eyebrow on one inch Scratch on one-inch nose caused by hard The Doctor has opined that the Injury No.(i) and (ii) are simple caused by sharp cutting and Injury No.(iii) & (iv) are simple in nature. 17. It transpires that P.W-1 i.e. Md. Ibrar is informant and he has supported the prosecution case as made in the FIR. However, during cross examination he has stated that one accused Gulam Rasool, who has named by the informant has died in the Bokaro General Hospital. Therefore, it is evident that the informant has concealed the injury sustained by the defence side. 6 18. P.W-2 is Md. Riyaz Khan who has tried to support the prosecution case. However, during cross-examination he has stated that nothing has been compelled by the accused persons except ‘Mar-Pit’ and Sword has been played by the appellant Md. Aasu. 19. P.W-5 is Md. Sabir and he has stated that five persons had assaulted the informant i.e. Md. Ibrar but he has not described the weapon being carried by the appellant and the other persons. Thus, P.W-5 does not appear to be eye witness. 20. P.W-4 namely Ramdharam Singh is the I.O of this case. Though he has corroborated the prosecution case but he has stated that he has submitted charge sheet against the appellant and others accused under sections 341, 323 and 324 of the I.P.C. During cross-examination, he has stated in para 17 that informant has stated that no repeated blow was given by the appellant and he has also not stated before him while recording statement under section 161 that he said himself of the blow given by the appellant. 21. From perusal of the F.I.R, it transpires that there is general and omnibus allegation against all the five persons including the appellant for causing injury upon the informant by Sword, Slaps and Bricks and for snatching Rs.450/- from the pocket. However, the informant has concealed the fact of sustaining injury on the side of the appellant due to which one person Gulam Rasool has died which is also admitted by the informant and also by the I.O. 22. It is further evident that no offence under section 307 IPC is made out against the appellant. 7 23. In view of the above, no case under section 324 of the IPC is made out against the appellant and the appellant is acquitted for conviction under section 324 and 341 of the IPC. 24. Under the circumstances, the period of custody undergone by the appellant, Md. Aasu shall be the period of sentence. 25. In view of the above, the judgment of conviction dated 18.05.2007 and order of sentence dated 19.05.2007 passed in S.T. No.519 of 2001 (arising out of G.R.No.1894 of 2001) by Sri Ashok Kumar Mishra, learned Additional Sessions Judge, F.T.C-III, Dhanbad by which the appellant i.e. Md. Aasu has been convicted for the offence under section 324, 341 and 307 of the I.P.C and sentenced him to undergo R.I. for one month for the offence under section 341 IPC, R.I for one year for the offence under section 324 IPC and R.I for seven years and fine of Rs.1000/- for the offence under section 307 IPC, are set aside and the appellant namely Md. Aasu is acquitted and the appellant namely Md. Aasu is discharged from the liability of his bail bonds. 26. Thus, the Criminal Appeal (SJ) No.589 of 2007 is
Decision
allowed in part and stand disposed of. 27. Let the L.C.R be sent back to the learned court below at once. Saket/- (Sanjay Prasad, J.)