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Judgment
Pradeep Kumar, J.—Heard the learned Counsel for the Appellants and the learned Counsel for the state.
The instant appeal is directed against judgment of conviction dated 09.09.2002 and order of sentence dated 10.09.2002 respectively passed in S.T. No. 161 of 1999 by Shri Arun Kumar, Additional Judicial Commissioner, Fast Tract Court, Ranchi, by which judgment he found the Appellants guilty under Sections 307/34 of the I.P.C. and sentenced them to undergo R.I for seven years.
It is submitted by learned Counsel for the Appellants that there was some dispute between two accused and informant and while the accused were crossing the field, the informant had abused them thereafter these two Appellants assaulted the informant''s father and gave him one blow from Mugra causing grievous injury on his head. The allegation is only against one accused i.e. Appellant No. 1 Kartik Koiri. He further stated that there is no allegation that there was any intention to commit their murder. The doctor has also not said that injury was so fatal to cause death of injured P.W.5 Ashirwad Hazam, as such, conviction under Sections 307/34 of the Indian Penal Code is bad in law and fit to be set aside.
On the other hand, learned Counsel for the State has supported the prosecution case and submitted that the injury on the vital part of the body of injured by Mugra was caused by accused, as such, conviction under Sections 307/34 of the Indian Penal code is rightly given by the trial Court to the Appellants.
After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of fardbeyan given by the P.W. 4, Lakhan Hazam (informant) on 29.10.1998, stating therein that on the last Monday he had sown mustered (sarso) in his filed and today on 29.10.1998 at 8.30 A.M. Kartik Koiri and Bhola Nath Koiri were going by middle of the field then he told the accused that not to cross the filed because in the filed mustered seed were sown, but they did not hear, whereupon some altercation took place. Subsequently, when his father came there then accused persons gave mugra blow to his father causing injury on head thereafter he became unconscious and fell down.
On the basis of the said fardbeyan, police registered a case under Sections 341, 323, 307/34 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case. Since, the case was exclusively triable by the court of Sessions, after taking cognizance learned Chief Judicial Magistrate committed the case to the court of Sessions and subsequently, the case was tried by learned Additional Judicial Commissioner-cum-FTC, Ranchi, who found the Appellants guilty under Sections 307/34 of the I.P.C. and sentenced them as aforesaid.
It appears that in the course of the trial, the prosecution has examined as many as seven witnesses.
PW. 1, Gopal Hazam, brother of the injured.
P.W. 2, Rathu Devi, wife of the injured.
P.W. 3, Satyanarayan Thakur, nephew of the inured.
P.W.4, Lakhan Hazam, the informant of the case.
P.W. 5, Ashirwad Hazam, is the injured.
P.W. 6, Dr. Chandra Bhushan Sahay, is the Doctor.
P.W. 7, Deo Narain Hansdah, is the formal witness, proved the F.I.R.
P.W. 1 and P.W.2 are hearsay witnesses, P. W. 1 has admitted that some altercation took place between informant and accused and somebody had assaulted Ashirwad Hazam. P.W.2 has also said that she reached after the occurrence and as such, only two important witnesses P.W. 4 and P.W.5 in this case. One is the informant and another is the injured itself.
P.W.4, Lakhan Hazam, the informant of the case, has stated that on the date of occurrence when he objected crossing of the field where he had sown the seed of sarso, some altercation took place thereafter Kartik Koiri assaulted him by mugra, but he saved himself thereafter his father came to save him then Kartik Koiri and Bhola Nath Koiri both assaulted his father by mugra then his father fell down and became unconscious thereafter he was taken to hospital and from there he was sent to R.M.C.H. at Ranchi. He admitted in his cross examination that accused were crossing through field where sarso seed sown and when he objected then they assaulted his father.
P.W. 5, Ashirwad Hazam, is the injured, stated that some altercation took place between accused and his son and when he came to save his son then these two accused persons Kartik Koiri and Bhola Nath Koiri gave blow on his head by mugra and he became unconscious and when he gained consciousness then he found himself in R.M.C.H. Ranchi. He identified both the accused in Court.
PW. 6, Dr. Chandra Bhushan Sahay, is the Doctor, who found several injury on his body.
(i) bleeding from both ears,
(ii) bleeding from inside of nose,
(iii) 1/4" x 1/4" abrasion on chin,
(iv) swelling of lower face, x-ray of skull epitateral done at R.M.C.H. Showed fracture at the bace of skull and he opined that injuries were grievous in nature.
P.W. 7, Deo Narain Hansdah, is the formal witness, proved the F.I.R.
Thus, from the evidences of witnesses it appears that injuries were found on the head of informant''s father by mugra. Although, injuries are grievous in nature, but the informant did not say that there was any intention to commit the murder of his father. There was no preparation also to commit any murder. Since, they were just crossing the field and some altercation took place between accused and informant and when his father intervened to save him, single blow of mugra was given on his father''s head. In that view of the matter, I find that the injury was not caused with an intention to commit murder of the injured. The doctor has also not said that injury was so fatal to cause death of injured P.W.5 Ashirwad Hazam.
In that view of the matter the conviction of the Appellants under Sections 307/34 of the Indian Penal Code is altered to under Sections 325/34 of the Indian Penal Code and their sentence of seven years are altered to a period of eleven months, which has already been undergone by them during trial and appeal.
With the aforesaid alteration in the sentence, this appeal is allowed in part and judgment of conviction dated 09.09.2002 and order of sentence dated 10.09.2002 respectively passed in S.T. No. 161 of 1999 is altered. Since, the Appellants are on bail, they are released from the bondage of bail.