) ----- 1.Mukteshwar Singh, s/o Sri Girdhari Singh, resident of village Balidih Bishanpur sit v. For the
Case Details
Cr. Appeal (D.B.) No.165 of 2013 ----- (Against the judgment of conviction dated 20.02.2013 and order of sentence dated 22.02.2013 passed by learned Additional Sessions Judge-I, Bermo at Tenughat in Sessions Trial No.111 of 1996) ----- 1.Mukteshwar Singh, s/o Sri Girdhari Singh, resident of village Balidih Bishanpur sit, PO and PS Balidih, District Bokaro 2.Kinkar Singh, s/o late Harkhu Singh, resident of village Bengabad, PO and PS Nirsa, District Dhanbad … Appellant(s). The State of Jharkhand … Respondent(s). Versus For the Appellant(s) For the State
Legal Reasoning
evidence we find that though these appellants have assaulted the injured but the assault is on the elbow and on the ankle. Mukteshwar Singh was armed with an axe who admittedly assaulted with the handle of the axe and injured the informant on his leg and elbow. So far as Kinkar Singh is concerned, he has assaulted with a lathi. This clearly suggests that the intention to commit murder is missing in this case. If the appellants had any intention to commit murder of the injured they could have easily used the axe and the sharp side of the axe. Further the assault is on the ankle and on the elbow which also suggests lack of intention of committing murder. When there is lack of intention of committing murder, the appellants could not have been convicted under section 307 of the Indian Penal Code. 11. From the medical evidence on record we find that there was fracture of bone which comes within the definition of grievous hurt under section 325 of Indian Penal Code. 12. Section 325 of the Indian Penal Code reads as under: 3 “325. Punishment for voluntarily causing grievous hurt. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 13. Thus, from the evidence we are of the opinion that the case would come within the purview of section 325 of the Indian Penal Code where the appellants have caused grievous hurt to the injured. Thus, we convert the conviction of section 307 of the Indian Penal code to section 325 of the Indian Penal Code. So far as the sentence is concerned the appellants have suffered the rigors of the prosecution from July 1993. Today, we are in the year 2024, thus 31 years have elapsed. On the date of judgment Mukteshwar Singh was of 40 years and Kinkar Singh was of 38 years. Today they are of approximately 68 to 70 years old. It will not be proper to send them in custody again. Moresoever they have already spent 4-5 months in custody. Thus, the sentence imposed is modified, to the period which they have already undergone. 14. Since the appellants are on bail, they are discharged from the liability of their bail bonds. The bailors are also discharged from their respective liabilities of the bail bond. 15. Accordingly, the instant criminal appeal stands partly allowed. 16. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith. (ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi Dated: 22nd July 2024 Tanuj/ .A.F.R. 4
Arguments
------ : Mr. Mahesh Kumar Sinha, Advocate : Mr. Rajesh Kumar, APP. …...... PRESENT SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. Per Ananda Sen, J.: Heard the learned counsel for the appellants and the learned counsel for the State at length. 2. This appeal arises out of judgment of conviction dated 20.02.2013 and sentence dated 22.02.2013 in Sessions Trial No. 111 of 1996 whereby and whereunder learned Additional Sessions Judge-I, Bermo at Tenughat convicted the appellants for committing offence punishable under sections 341 and 307/34 of the Indian Penal Code and sentenced to RI for 10 years and fine of Rs. 5,000/- under section 307 IPC and they are further sentenced to SI for one month under section 341 IPC. 3. The learned counsel for the appellants submits that from the facts of the case and the prosecution evidence, it is clear that this case will not come within the purview of section 307 of the Indian Penal Code. He submits that though the appellants were armed with axe yet the injury is caused by hard and blunt object, such as, the handle of the axe. As per him the intention to commit murder is missing in this case which is apparent, as the injury, if any, is on the elbow and on the ankle and not on any vital part of the body. He lastly submits that the appellants have remained in custody for more than five months. 4. The learned counsel appearing on behalf of the State submits that there was intention to commit murder which would be derived from the fact that the appellants were armed with an axe. The injury report of the doctor suggests that the injuries are grievous. 5. We have gone through the FIR dated 02.07.1993. As per the FIR we find that there is an allegation that these two appellants had some altercation with the informant in respect of purchasing of khapda as a result of which these appellants assaulted informant and injured him with lathi and axe which resulted in lodging of Nawadih PS Case No. 50 of 1993 under sections 341/323/324/325/307/34 of the Indian Penal Code. 6. After investigation the police submitted chargesheet under sections 341/323/325/307/34 of the Indian Penal Code. Thereafter cognizance was taken and the case was committed. At the time of framing of charge the accused pleaded not guilty and thus the trial proceeded. 7. Only three witnesses have been examined in this case: PW1 Khem Narayan Singh is the informant/injured who supported his version in the FIR and stated that he was assaulted by these two appellants by lathi and by the handle of the axe. PW2 is the doctor who found the following five injuries on the informant: (i) Lacerated wound 2”x 1/4 “ x ¼” at the angle of the mouth left side. (ii) A fracture in the right elbow joint. (iii) Fracture in left elbow joint. (iv) Lacerated wound 2” x ½” x ¼” on right knee joint. (v) Lacerated wound 1” x ¼” x ¼” in the left ancle joint. PW3 has been declared hostile. 2 8. Conviction in this case is under section 307 of the Indian Penal Code. Section 307 reads as follows: “307. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.” 9. As per section 307 of the Indian Penal Code there should be an intention to commit murder and the perpetrator of the crime should have an intention or knowledge that his act of assault would cause death. 10. From the evidence on record and from the medical