Imtiyaj vs State of Jharkhand

The instant Criminal Appeal has been preferred against the judgment of conviction dated 23.12.2003 and order of sentence dated 24.12.2003,

passed by learned Additional Sessions Judge, Jamshedpur - Fast Track Court VII, in Sessions Trial No. 184 of 2001, whereby four appellants have

been awarded rigorous imprisonment for five years with fine of Rs. 500/- each, for the offence punishable under Sections 326/34 of the Indian Penal

Code, rigorous imprisonment for three years with fine of Rs. 500/- each, for the offence punishable under Sections 452/34 of the Indian Penal Code,

rigorous imprisonment for two years for offence punishable under Sections 324/34 of the Indian Penal Code and rigorous imprisonment for six months

for offence punishable under Sections 323/34 of the Indian Penal Code and in default of fine, further sentenced to undergo three months rigorous

imprisonment and all the sentences shall run concurrently.Â

The prosecution case is based upon the fardbeyan of Md. Siddik (P.W 7) recorded by A.S.I. of Mango police station, on 27.12.1998 at 19.30 hours

at M.G.M. Hospital, where the informant has alleged that, while he was doing the ritual of Roza along with his family members, all of a sudden at 7.00

pm. Coresident of the mohalla, Imtiyaj (appellant no. 1) having sword, Sarfaraj (appellant no. 2) having iron rod, Jamil (appellant no. 3) having pistol

and Rocky (appellant no. 4) having bhujaali, entered into the house of the informant and started assaulting. When the informant’s son Md. Majid

came, he was assaulted on head by Imtiyaj by means of sword causing injury and Majid fell down. Sarfaraj assaulted Mithu (informant’s second

son) by iron rod. Mithu tried to save him by hand but his hand was seriously injured. Again when he was assaulted, the injury has been caused near

the upper and lower part of the right eye. When the daughter of the informant, Shahjadi Begum came for rescue, she was assaulted by Jamil by

means of ‘butt’ of the pistol, causing bleeding injury on her head. Rocky assaulted them by fist and slap. On brawl, co-residents Md. Fariyad

Alam, Nizzamuddin, Lalu came and they saved the victims from further assault. The informant has alleged, that the occurrence took place as the

accused persons were trying to capture his house, for which earlier a proceeding under Sections 144 and 107 Cr.P.C. was initiated and subsequently a

civil suit vide Title Suit No. 145 of 1998 was filed and pending before the learned munsif. The informant has alleged that accused persons have also

broken the lock placed by the informant in his room and they have tried to enter into their room and when they made protest, such occurrence took

place.Â

On the basis of the fardbeyan of the informant, police has registered Mango P.S. Case No. 348 of 1998 dated 27.12.1998 under Sections 452, 323,

324, 307/34 of the Indian Penal Code and Section 27 of the Arms Act. Subsequently, police after investigation submitted charge sheet vide no.

43/1999 dated 28.02.1999 under Sections 452, 323, 324, 307, 34 of the Indian Penal Code.

The cognizance of the offence has been taken vide order dated 24.04.1981 and the case has been committed to the court of Sessions vide order

dated 24.04.1981, where the charge has been framed against all the four accused persons on 02.04.2002 under Sections 452/34, 323/34, 324/34 and

307/34 of the Indian Penal Code, to which the appellants have pleaded their innocence and thus they were put under trial. Â

The prosecution has examined altogether nine witnesses and has also exhibited a number of documentary evidence to prove the case of the

prosecution. After closure of the prosecution evidence, the appellants have been examined under Section 313 Cr.P.C. on 10.09.2003.  The

defence has also examined one witness as D.W. 1 and also exhibited a number of documents to prove their case.

Sahjahan Begum (wife of the informant) has been examined as P.W. 1, Sahjadi Begum (one of the injured and daughter of the informant) has been

examined as P.W. 2, Md. Mukhtar has been examined as P.W. 3, Md. Mithu (youngest son of the informant and one of the injured) has been

examined as  P.W. 4, Md. Majid (son of the informant and victim) has been examined as P.W. 5, Dr. S. Raut has been examined as P.W. 6, Md.

Siddik (informant of the case) has been examined as P.W. 7, Ramanuj Singh, A.S.I. (Investigating Officer) has been examined as P.W. 8, Dr. D.K.

Sinha has been examined as P.W. 9.

Injury report of Md. Majid has been proved and marked as Exhibit- 1, fardbeyan with signature of informant has been proved and marked as

Exhibit2, injury report of Md. Mithu has been proved and marked as Exhibit- 3, injury report of Sahjadi Begum has been proved and marked as

Exhibit- 3/A.

After closure of the prosecution evidence, the defence has also examined Dr. Milind Kumar Sinha as defence witness no. 1. He has proved injury

report of Smt. Kanija Khatoon, which has been marked Exhibit- A, the order of the Misc. Case No. 134 of 1998 has been marked Exhibit- B, order of

the Misc. Case No. 900 of 1998 has been proved and marked Exhibit- C, judgment in G.R. Case No. 2418 of 1998 has been proved and marked

Exhibit- D.

    After hearing the parties, the learned Trial Court passed the impugned judgment of conviction and order of sentence. Being aggrieved and

dissatisfied with the impugned judgment, learned Senior Counsel, Mr. B.M. Tripathi assisted by Mr. D.K. Prasad, Advocate has submitted that the

impugned judgment of conviction and order of sentence is bad in law as well as in the facts and in the circumstances of the case, the same cannot

sustain in the eyes of law.Â

Learned counsel, Mr. B.M. Tripathi, Senior Advocate assisted by Mr. D.K. Prasad advocate appearing on behalf of the appellants has further

submitted, that there is a contradiction in the evidence of the prosecution witnesses. Learned counsel has further submitted, that there is a case and

counter case between the parties, in that these prosecution parties have also been convicted but they have been given privilege under Section 4 of the

Probation of Offenders Act. Learned counsel for the appellant has further submitted that there is a case and counter-case but both were tried

together in view of the judgment of the Hon’ble Supreme Court.

Learned counsel for the State, Mr. Tapas Roy, Additional Public Prosecutor assisted by counsel for the informant, Ms. Ruby Yadav has submitted

that the impugned judgment of conviction and order of sentence is based on evidence available on record. Learned Counsel has drawn the attention of

this court towards the deposition of the witnesses. Learned counsel has further submitted that even though, the case is arising out of a civil dispute but

no person has a right to take law in his hand. Learned counsel has further submitted, that the injury which has been caused on Md. Majid (marked as

Exhibit- 1), proved by Dr. S. Raut (P.W. 6) shows that, it was grievous injury causing unconsciousness to the injured Md. Majid, C.A.T. Scan of brain

shows a large extradural hematoma on the right perito-fronto-temporal region, producing compression of the brain and shifting of mid line structure.

Hence, it was taken emergency Brain surgery following, operation to threat to life was removed and post operating, he was given required salvage

treatment for the damage on the brain.

   During cross-examination, the doctor Dr. S. Raut (P.W. 6) has categorically stated that incised injury is caused by sharp cutting weapons.

Learned counsel for the State has further drawn the attention of this court towards the evidence of P.W. 9 (Dr. D.K.Sinha), who examined Md.

Mitthu and found:-

(i) One abrasion below right eye 1/2"" x 1/2

(ii) One swelling 1â€​ x1â€​ on right wrist

Both the injuries caused by hard and blunt substances and proved the injury report as Exhibit- 3.

     P.W. 9 has also examined Sahjadi Begum and found:

(i) Lacerated wound two in number on right side of scalp 3/4"" x 1/2"" x skin deep.

The injury was simple in nature and the injury report has been proved and marked as Exhibit- 3/A.

  Learned counsel for the State has further submitted that from perusal of the evidence of prosecution witnesses, nothing has been elucidated by

the defence to discard the prosecution case rather learned State Counsel has submitted, that the entire prosecution evidence are consistent to each

other and even the investigating officer (P.W. 8), who has proved the fardbeyan as Exhibit 2, has also supported the prosecution case. Learned

counsel for the State, Mr. Tapas Rai, Additional Public Prosecutor has further submitted, that injury found on the victims are in consonance to the

prosecution case. Learned State Counsel has further submitted that no interference is required by this Court in the impugned judgment of conviction

and order of sentence, as the evidence are consistent to each other and the medical evidence are in consonance with the ocular witnesses.Â

 Learned counsel for the State Mr. Tapas Roy, Additional Public Prosecutor assisted by Ms. Ruby Yadav, counsel for the informant has further

submitted, that such heinous crime has been committed because the appellants being law breakers and aggressors, entered into the house of informant,

while they were sitting for their ritual of Roja during holy Ramzan month. Learned counsel for the State has drawn the attention of this court towards

the evidence of P.W. 1 (Sahjahan Begum) where this witness has categorically stated that accused persons have entered into the house and

committed such offence. From the evidence of P.W. 1, it appears that prosecution parties are in possession of the land. The defence has cross-

examined P.W. 1, but nothing has been elucidated to disbelieve the evidence of P.W. 1.Â

Sahjadi Begum (P.W. 2), one of the injured of the case and daughter of the informant, has also been examined. She has supported the prosecution

case and assault made upon her, she has categorically stated that Kanija Khatoon has not sustained any injury, who is mother of the appellant Jamil.Â

Md. Mukhtar, has been examined as P.W. 3. This witness has supported the prosecution case, nothing has been elucidated by the defence during

cross-examination.

Md. Mithu has been examined as P.W. 4, he has also supported the prosecution case and his evidence is also in consonance with the case of the

prosecution.Â

Md. Siddik (informant and the victim) has been examined as P.W. 5.

His evidence is also in consonance with the other witnesses. Md. Siddik (informant of the case) has supported the prosecution case, as made out in his

fardbeyan. He has been cross-examined but nothing has been elucidated during cross-examination. Â

Ramanuj Singh (Investigating Officer of the case) has been examined as P.W. 8. This witness has admitted, that there is a case and counter case

both arising out of Mango P.S. Case No. 348 of 1998 and 349 of 1998, but he has also supported the prosecution case as made out by the prosecution.

Heard, learned counsel for the appellant, Mr. B.M. Tripathi, Senior Advocate assisted by Mr. D.K. Prasad, Advocate and counsel for the State

Mr.

Tapas Rai assisted by counsel for the informant, Ms. Rubi Yadav and from perusal of the F.I.R., evidence of the prosecution witnesses, exhibits, 313

Cr.P.C. statement of the appellants and the defence witness along with defence Exhibits, this court is of the opinion that there is consistency in the

evidence of the prosecution witnesses. The injury report of Md. Majid (Exhibit-1), injury reports of Md. Mithu and Sahjadi Begum (Exhibit- 3 and

Exhibit- 3/A) are in consonance with the prosecution case. The statement of the learned counsel for the appellants that case and counter-case has not

been tried together, in view of the judgment of the Hon’ble Supreme Court, this court is of the opinion that such plea has not been raised during

the trial. It is true that case and countercase must be tried together in view of the judgment of the Hon’ble Supreme Court as reported in 2003 (9)

SCC 426 in case of State of Madhya Pradesh Versus Mishrilal (Dead) & Ors. and 1990 (Supp) SCC 145 in case of Nathi Lal versus State of Uttar

Pradesh, but that cannot be a ground to disbelieve the prosecution case by acquitting the accused persons. This court is of the opinion that the

appellants are the aggressors, who went inside the house of the informant with deadly weapons like sword, rod, pistol, bhujali and have assaulted the

innocent citizens for capturing the house, which was in possession of the informant’s (prosecution) side, while they were sitting for their ritual of

Roja during the holy month of Ramzaan.Â

  This court has scrutinized the evidence of the prosecution witnesses but there is no contradiction in the prosecution case. Considering all these

aspects of the matter, this court affirms the judgment of conviction passed by the learned Trial Court. So far the sentence part is concerned, this court

is taking a reformatory view, as the matter arises out of a civil dispute, the sentence of rigorous imprisonment for five years with fine of Rs. 500/-

each, for the offence punishable under Sections 326/34 of the Indian Penal Code, rigorous imprisonment for three years with fine of Rs. 500/- each,

for the offence punishable under Sections 452/34 of the Indian Penal Code, rigorous imprisonment for two years for offence under Sections 324/34 of

the Indian Penal Code and rigorous imprisonment for six months for offence punishable under Sections 323/34 of the Indian Penal Code and in default

of fine, further sentence to undergo three months rigorous imprisonment, is not justified for the present as these appellants were aged about 42, 38, 30

and 23 years at the time of their conviction and now they must have reached the age of 57, 53, 45, 38 years. The offence has been committed

because of a civil dispute, but no person has a right to enter into the house of another person and take law in their hand and commit offence by deadly

weapons.Â

Under the aforesaid circumstances, this court is of the opinion that sentence part be modified, the appellant Imtiyaj who has assaulted Md. Majid

causing such grievous injury, on his brain (from perusal of Exhibit-1), it appears that Md. Majid has suffered loss of huge amount during his surgical

operation treatment shall be paid by appellant no. 1, Imtiyaj a fine of Rs. One lac to Md. Majid, Sarfaraj, appellant no. 2, who has assaulted Mithu by

iron rod causing two injuries, on the upper and lower part near the right eye, which has been proved and marked as Exhibit- 3, shall pay a fine of Rs.

50,000/- to Mithu, Jamil, appellant no. 3, who has assaulted Sahjadi Begum causing injury on the head and the injury report has been proved and

marked as Exhibit- 3/A, shall pay a sum of Rs. 40,000/- to Sahjadi Begum and Rocky, appellant no. 4, who has assaulted by fist and slap to the family

members, shall pay a sum of Rs. 10,000/- to the informant or his wife. All the payment shall be made to the corresponding victim (injured) by the

learned Trial Court on deposit by the appellants through bank draft as stated above. The appellants are directed to deposit the sum through bank draft

in the name of the corresponding victim. Imtiyaj will pay the sum of Rs. One lac in the name of Md. Majid, Sarfaraaj will pay the sum of Rs. 50,000/-

in the name of Md. Mithu, Jamil will pay a sum of Rs. 40,000/- in the name of Sahjadi Begum and Rocky will pay a sum of Rs. 10,000/- to Md.

Sadik/Sahjahan Begum through Bank draft within a period of six weeks, from today.Â

  Such reformatory views have been taken by this court, as these persons are not a habituated criminals, but they cannot take law in their hands in

a civilized society and as such, they are saddled with such fines, instead of sending them to jail as there is chances of coming in contact with veteran

criminals languishing in Jamshedpur jail. If the appellants fail to deposit the fine amount within the said period of six weeks from today, the sentence

imposed by the learned Trial Court will be affirmed and in that case the appellants shall serve sentence of rigorous imprisonment for five years with

fine of Rs. 500/- each, for the offence punishable under Sections 326/34 of the Indian Penal Code, rigorous imprisonment for three years with fine of

Rs. 500/- each, for the offence punishable under Sections 452/34 of the Indian Penal Code and rigorous imprisonment for two years for offence under

Sections 324/34 of the Indian Penal Code, rigorous imprisonment for six months for offence punishable under Sections 323/34 of the Indian Penal

Code and in default of fine, further sentence to undergo three months rigorous imprisonment. With the aforesaid modification in sentence, the

impugned judgment of conviction is hereby affirmed. The appeal is dismissed with modification in sentence, the appellants are directed to comply the

order within six weeks, if they are not complying the order within the stipulated time, the learned Trial Court is free to take all coercive steps for

apprehending the appellants to serve out the sentence, as awarded by the learned Trial Court.

In the result, the impugned judgment of conviction dated 23.12.2003 and order of sentence dated 24.12.2003, passed by learned Additional

Sessions Judge, Jamshedpur - Fast Track Court VII, in Sessions Trial No. 184 of 2001, in connection with Mango P.S. Case No. 348 of 1998,

consequent to G. R. No. 2417 of 1998 is affirmed with the above modifications in the sentence. Â

The appellants who are on bail, their bail bond is cancelled to deposit the amount within six weeks or serve out sentence as directed by learned

Trial Court. Â

In the result, the present Criminal appeal is dismissed with modification.

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Â