Md. Jahangir vs The State Of Jharkhand
2021 Latest Caselaw 4594 Jhar

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                  CRIMINAL APPEAL (SJ) NO. 656 OF 2010

     Against the judgment of conviction dated 20.07.2010 and the order of
     sentence dated 22.07.2010 passed in Sessions Case No. 115 of 2009
     by learned Sessions Judge, Godda

            Md. Jahangir, son of Md. Samir, resident of village- Kaswa,
            Post Office & Police Station- Mahagama, District-Godda,
            (Jharkhand)                                   .......Appellant
                               Vs.
             The State of Jharkhand                    ........Respondent

For the Appellant : Mr. Manoj Kumar Sah, Advocate For the State: Mrs. Vandana Bharti, APP

PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA

C.A.V. on 18.06.2021 Delivered on 03/12/2021 By Court: This criminal appeal arises out of judgment of conviction and order of sentence dated 20.07.2010 and 22.07.2010 respectively passed by the learned Sessions Judge, Godda in Sessions Case No. 115 of 2009 whereby and where under appellant was convicted under section 307 of IPC and sentenced to rigorous imprisonment for 4 years and fine of Rs. 2,000/- and in default of fine amount appellant was to further undergo simple imprisonment for one month. The period undergone by the appellant was ordered to be set-off.

2. The prosecution case, in brief, as per the fardbayan dated 20.02.2009 of the informant Parvej Yusuf (PW-6) is that on 19.02.2009, on occasion of 'Chehallum' game was organised in the field of Urdu Middle School, Kaswa and informant had gone there. At about 7:30 pm when informant was returning to his home, appellant Jahangir of his village, with an intention to murder the informant, assaulted the informant on his neck with a broken portion of mercury tube light. Informant in order to save himself bent down his head as a result tube hit the head of the informant causing an injury on his head. Blood oozed out and the informant became senseless and fell down.

3. On the basis of the fardbeyan of the informant Mehagama P.S. Case No. 18 of 2009 dated 20.02.2009 was registered under

sections 341, 323 and 307 IPC. Charge sheet was submitted under sections 341, 323 and 307 of IPC and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the appellant under sections 307 and 341 of IPC and trial was held. At the conclusion of the trial appellant was convicted and sentenced as aforesaid. Hence, this appeal.

4. In support of its case the prosecution altogether examined seven witnesses out of whom PW-6 Parvej Yusuf is the informant of the case; PW-1 is Md. Ibrahim; PW-2 is Mr. Razzak; PW-3 Dr. Amitesh Ranjan Srivastav, who had examined the injured informant, PW-4 is Md. Sajjad Alam; PW-5 is Attaul Rahman Siddiqui and PW- 7 is Chandradeo Ram, who is the Investigating Officer of the case.

5. PW-6 Parvej Yusuf is the informant of the case. Informant has stated in his evidence that on the day of occurrence at 7.30 pm, procession was going on in the premises of Urdu Middle School, Kaswa. After the procession, he was going for Pahlam and Jahangir was going ahead of him. Jahangir turned on and wanted to assault on his neck with a mercury tube light. Informant bent down his head then tube light hit him on the left side of his head as a result he sustained cut injury and blood oozed out from his head and he became senseless. Informant has proved his fardbeyan which was marked as Ext-2. In his cross-examination informant has stated that gas light was burning in the school.

6. PW-1 is Md. Ibrahim and PW-2 is Md. Razzak and both have stated in their evidence that on the day of occurrence at 7:30 pm in the night, they were at the field of Urdu middle School, Kaswa. PW-1 has stated that suddenly the accused Md. Jahangir tried to assault the informant Md. Parvej Yusuf with a broken mercury tube at his neck. Parvej bent down his head so, mercury tube hit the head of Parvej and blood oozed out from the head of Parvej and he fell down and became senseless. They took Parvej to the village doctor Jakir and he tied bandage and advised to take Parvej to Mehagama Hospital. In his cross-examination, PW-1 stated that the procession concluded at 7.30 pm at the pond and he was with the informant. PW-

2 has reiterated the same as PW-1 about the assault on the informant by the accused.

7. PW3 is Dr. Amitesh Ranjan Srivastav, who had examined the injured informant. Doctor has deposed that on 19.02.2009 he had examined the informant Parvej Yusuf and found the following injuries on his person:-

(I) Penetrating wound on left frontal region 2"x1/4"x1/4".

(ii) Abrasion over left side of neck 1/4x1/4".

Doctor stated that he cannot say about the nature of injury no.1 but injury no.2 was simple. Injury no.1 was caused by sharp penetrating substance and injury no.2 was caused by hard and blunt substance. Doctor has proved the injury report of the informant which was marked as Ext.-1.

8. PW-4 Md. Sajjad Alam is a hearsay witness and had not seen the occurrence of assault but PW-4 has deposed that he saw informant Parvej 15-20 minutes after the occurrence and there was cut injury on his temple.

9. PW-5 is Attaul Rahman Siddiqui and he is the uncle of the informant Parvej. PW-5 has stated in his evidence that accused Jahangir had assaulted Parvej with a mercury tube light as a result Parvej sustained injury on his head and blood oozed out from the head of Parvej. Parvej became senseless and fell down on the spot. Parvej was taken to the village doctor Jakir on a cot but he expressed his inability for treating Parvej. Thereafter, Parvej was taken to Mehagama Referral, Hospital. In his cross-examination, PW-5 stated that place of occurrence is at a distance of 1000 feet from his house and he saw the occurrence from distance of 20-25 steps.

10. PW-7 is Chandradeo Ram, who is the Investigating Officer of this case. He has stated in his evidence that he had sent the injured Parvej for Medical examination by issuing injury requisition. Investigating Officer has proved injury requisition, which was marked as Ext.-3. Investigating Officer further proved the endorsement on the fardbeyan and formal F.I.R. which were marked as Ext.-2/1 and Ext.-4 respectively.

11. Defence had examined two witnesses DW-1 Md. Faiyaz and DW-2 Md. Hafiz. Both DW-1 and DW-2 have stated in their evidence that PW-5 is the uncle of the informant and PW-5 had contested MLA election which was opposed by the accused and hence false case was filed by the informant.

ARGUMENTS ON BEHALF OF APPELLANT

12. Learned counsel for the appellant, Mr. Manoj Kumar Sah submitted that there is lot of discrepancies in the evidence of the prosecution witnesses as compared to the fardbeyan of PW-6 Parvej Yusuf, who is allegedly the injured as well as the informant. First and foremost learned counsel points to the fardbeyan and submitted that the fardebyan dated 20.02.2009 describes an event that allegedly took place a day before on 19.02.2009 but narration of events in his evidence is quite different from what has been stated in the fardbayan. In the fardbeyan the informant had stated that on the day of occurrence on 19.02.2009, at around 7:30 pm he was returning home after watching games organised on occasion of Chehallum at Urdu Middle School, Kaswa and then accused Md. Jahangir suddenly with the intention to kill, attacked him with a mercury tube-light. But, in his evidence informant has stated that after the game was over, he was going for Pahlam and at that time accused Jahangir was going ahead of him and he was walking behind him. Then accused Jahangir turned around and assaulted the informant with the mercury tube. Learned counsel further submitted the fact that accused was going ahead of him and informant was behind the accused is not stated in the fardbayan and this is contradiction.

13. Learned counsel further submitted that in Para-4 informant has deposed that he had seen Jahangir, committing the assault. Informant was treated for 24 hours by the doctor but he had not given the treatment papers to the police and hence, not giving treatment papers to the police raises doubt in the prosecution case.

14. Learned counsel has then referred to the evidence of PW- 1, who is Md. Ibrahim and referred to para-6 of his deposition and pointed out that PW-1 has deposed that Jahangir was in front of the

procession and Parvej was at the back and he does not know who was going along with Jahangir and then Jahangir turned around and assaulted Parvej. The mercury tube was in the hand of the accused and it did not break into pieces, but, remained in his hand. The learned counsel points out that what is to be noted that as per this witness even after the assault by the tube-light, the tube-light was broken into pieces but had rather remained in his hand which is unbelievable.

15. The learned counsel has then referred to the evidence of PW-2, who is Md. Razzak and pointed out that PW-2 has deposed that Jahangir assaulted Parvej on his head and mercury tube by which accused assaulted was broken. This is contrary to the evidence of PW-1 as PW-1 had deposed that mercury tube did not break.

16. Learned counsel for the appellant has then referred to the evidence of PW-5, who is Attaul Rahman Siddiqui and own uncle of the informant and pointed out that in para-1, PW-5 has deposed that after the assault Jahangir fled away saying he missed otherwise informant would have been finished and such deposition has been given by PW-5 only to improve the case against the appellant. In paragraph-2, PW-5 has deposed that informant was carried to village doctor named Zakir and he expressed his inability to treat him but the said village doctor Zakir was not examined by the prosecution. Learned counsel further submitted that in his cross-examination PW-5 has deposed that informant Parvej is his own nephew and PW-5 himself was a candidate in the Mahagama Vidhan Sabha Seat for three time and in the last election also he was a candidate. Learned counsel submitted that it has come in the evidence of DW-1 and DW-2 that appellant had opposed PW-5 and hence, due to political rivalry both the informant PW-6 and his uncle PW-5 had filed false case against the appellant.

17. Counsel for the appellant Mr. Manoj Kumar Sah, then argued that from the evidence of the prosecution witnesses it is apparent that there was a crowd of persons playing game with lathi and dandas and during playing games, informant fell down and

injured himself. Admittedly there was already existing enmity and informant has used this injury that he received on falling, against the appellant. Counsel also argues even the doctor has said that injury can be result of fall.

18. Learned counsel says that there is discrepancies in the evidence regarding the weapon of assault. In paragraph-6 of the evidence of PW-1 it is said that mercury tube was not broken while in the evidence of PW-2 at paragraph - 3, it is said that mercury was broken. Learned counsel therefore, says allegedly the mercury or tube light is the main weapon of assault and such a large degree of variation or inconsistency should not be made regarding the assault by mercury. Counsel says that the section 102 Cr.P.C has not been complied with because there was no seizure of any blood stained clothes or blood stained soil and more importantly also there was no seizure of the mercury tube light whether broken or intact. Seizure is a compulsory requirement and not having being seized, procured or exhibited any of these items surely puts a cloud in the case of the entire prosecution and hence, appellant deserves acquittal.

19. Learned counsel also says that the offence under section 307 of the Indian Penal Code cannot be made out at all because apart from the discrepancies already indicated regarding assault by tube- light, only one tube-light blow was alleged to be given which indicates that appellant really had no intention to really cause severe injury or harm as there was no repeated blow whatsoever. The statement of PW-5 that the attack or assault missed this time otherwise the matter would have been finished is a statement that is surely an improvement to try to make out the case against the appellant strong. Learned counsel further submitted that PW-2 had deposed that glass supposedly from the mercury tube light was embedded in the head of the injured informant but doctor PW-3 had deposed that no glass piece was found in the head of the injured. Counsel says that nowhere else it has been said that any such glass piece was removed by anyone else by any other or doctor specifically and therefore this so called injury is also very much doubtful and

doctor had also said that the injury can be the result of a fall or dashing. Counsel also points out that nowhere has a doctor said that the injuries were dangerous to life. If the doctor had opined that the injuries were dangerous for life then alleged offence might have come under the preview of section 307 IPC but this is not the case. The doctor has also in paragraph-4 of his cross-examination said that he is not sure whether injury no. (i) was caused by a broken mercury and about injury no. (ii) doctor has said that it is by hard and blunt substance. Counsel says that when it has come in the evidence that the appellant had made only one assault and ran away then if there are two injuries then given the inconsistent nature of evidence regarding assault, the prosecution case becomes doubtful.

20. Learned counsel also says admittedly there is enmity between both the parties and PW- 6 informant himself has said in para-2 that Ext.-2 or fardbayan was brought to him and he had merely signed on it. Therefore, given that there was a political angle to the case and PW-5 is the uncle of the injured informant and he would carry much influence with the police therefore, it is not too far to think or imagine that the entire case against the appellant is a concocted one. Learned counsel without admitting the guilt of the appellant submitted mitigating circumstances in case of conviction of the appellant. Learned counsel submits that offence is allegedly of the year 2009 and it is now 2021, almost 11 to 12 years have passed away. Further, learned counsel relies on judgment passed by this court in case of "Khuteshwar Giri v. State of Jharkhand" reported 2010(2)JLJR 617 for modification and reduction of conviction and sentence of the appellant.

ARGUMENTS OF STATE

21. Learned counsel for the State Mrs. Vandana Bharti, learned APP has referred to section 307 of the Indian Penal Code and pointed out that for conviction under this section intention or knowledge with a particular consequence to follow is necessary. She submits hurt is not a necessary ingredient, however, in this case it has to be seen whether the act of assault by mercury tube light on the

neck can come within the preview of section 307 IPC. Counsel says that eye witnesses have said that appellant tried assaulting on the neck of the informant and it was only because the victim bent down that he got injured on the head. Learned counsel therefore says that appellant was aiming on a sensitive and vital part of the body and if the assault had hit the informant then informant would have surely died and therefore, the intention of the appellant was such that the offence under section 307 IPC can be totally made out. Counsel says that even if for the sake of argument intention was not there the appellant had the knowledge that if assault on the neck was successful then fatal consequences would have followed which will bring the offence surely under section 307 IPC. She further submits assault by glass or mercury rod on the neck would definitely be fatal.

22. Learned counsel has cited the judgment of "State of Maharastra Vs. Balram Bama Patil and others" reported in AIR 1983 SC 305 of the Hon'ble Apex Court and pointed paragraph-9 of the judgment wherein Hon'ble Apex Court has held that to justify conviction under section 307 of IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Learned counsel here says that the overt act was there which was assault on neck as testified by many of the prosecution witnesses. Regarding absence of remains of glass particles from the injuries of the injured, learned APP says in the evidence of PW-1 at para-1, it has come that the injured was first taken to the village doctor and he was bandaged and hence the glass may have been removed by the village doctor and then injured was taken to the other doctor.

FINDINGS

23. Having heard both counsels, gone through the records of the case and the evidence, PW-6 informant has in his fardbayan stated that he was assaulted by the mercury tube light and it has also been indicated that a portion of the tube light was broken and then assault was made. It refers to a singular assault which resulted in injury. Further, on going through the deposition of the informant also, I find that nowhere informant has deposed that repeated blow of mercury

tube light was inflicted on the informant. PW-1 and PW-2 are also eye witnesses to the assault on the informant and on going through the evidence of PW1 and PW2 also, I do not find repeated blow of mercury tube light in their depositions.

24. Further, the doctor PW3 had also found two injuries on the person of the informant out of which injury no.(i) is penetrating wound on left frontal region measuring 2'' x 1/4''x 1/4'' and injury no.(ii) is abrasion over left side of neck ¼'' x 1/4''. But, doctor was unable to say about the nature of injury no.(i) and about injury no.(ii) he said it was simple in nature.

25. Hence, from the aforesaid evidence, it is obvious that there was single assault on the informant and no repeated assault seems to have been made. Further, doctor PW-3, who had examined the injured informant had also found only one penetrated wound, which also goes to support that there was no multiple assault by the appellant. Also, in view of specific deposition of the doctor about injury no.(i) wherein doctor specifically deposed that he was unable to say about the nature of injury no.(i), the fact remains that other injury i.e. injury no.(ii) is simple in nature. Hence, prosecution has failed to prove the charge under section 307 of IPC against the appellant. But, seeing the nature of injury as indicated by the doctor PW-3 viz injury report Ext.-1, appellant's conviction is now modified to one under section 324 of IPC.

26. Accordingly, the impugned judgment of conviction of the appellant under section 307 of IPC dated 20.07.2010 and order of sentence dated 22.07.2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 115 of 2009 are hereby set aside and appellant's conviction is modified to section 324 of IPC.

27. Regarding sentence, based on the rulings as cited by the appellant's counsel in "Khuteshwar Giri" (supra), which is almost parallel case of conversion and sentencing passed by this court and drawing parallel from this cited case and from the record it appears that appellant Md. Jahagir has already undergone more than 5 months in custody and hence, at this stage the period already undergone by

the appellant is considered as sentence sufficiently served. Appellant is discharged of his liabilities of bail bond.

28. Accordingly, appeal is dismissed with modification in conviction and sentence.

( Ratnaker Bhengra,J.)

Jharkhand High Court, Ranchi Dated 03/12/ 2021 Sharda/NAFR