Vijay Yadav vs State Of Jharkhand

Pradeep Kumar Srivastava, J

Heard learned counsel for the parties.

Above-named appellants has preferred this Criminal Appeal for setting aside the judgment of conviction dated 10.05.2006 and order of sentence dated 12.05.2006 passed by learned 1st Additional Sessions Judge, Koderma in Sessions Trial No. 39 of 1999 (arising out of Koderma P.S. Case No. 225 of 1995), whereby and whereunder, the appellants have been held guilty for the offence under Sections 147, 341/149, 323, 325 and 307 of the I.P.C. and sentenced to undergo one year R.I. for the offence under Section 147 of I.P.C., further a fine of Rs. 200/-each under Section 341 of I.P.C. with default stipulation and further six months R.I. for the offence punishable under Section 323 of I.P.C., further sentenced to undergo two years R.I. for the offence under Section 325 of I.P.C. and seven years R.I. and a fine of Rs. 500/- with default stipulation for the offence under Section 307 of the I.P.C. All the sentences were directed to run concurrently.

FACTUAL MATRIX

The factual matrix giving rise to this appeal is that on 18.07.1998 at 5:30 AM, the informant was going to his field, in the meantime, he saw that boundary wall of his house was being demolished by the accused persons. On objection, the accused persons restrained the informant and started to assault him by rod, lathi, knife and Chhar. Mahadeo Yadav assaulted by iron rod on mouth of informant, on which, his two teeth were broken down and two teeth were displaced. The accused persons thereafter assaulted by Chhar and knife on his leg, hand and back, then he fell down on ground. They ridded on the informant and pressed him. Thereafter, the informant raised alarm and on hearing alarm, many persons of the village came there and save the life of informant.

On the basis of above fardbeyan of the informant, FIR being Koderma P.S. Case No. 225 of 1998 was registered against the appellants for the offence under Sections 147, 148, 149, 341, 325, 427 and 307 of the I.P.C.

After completion of investigation, charge sheet was submitted against the accused persons. After taking cognizance of the offence, the learned Magistrate committed the case to the Court of Sessions; where S.T. No. 39 of 1999 was registered. The charges were framed and read over and explained to the accused persons, to which, they pleaded not guilty and claimed to be tried.

In course of trial, the prosecution has examined altogether 07 witnesses and also adduced following documentary evidence:-

Exhibit-1:  Injury Report of Munshi Yadav.

Exhibit-1/1:  Injury Report of Munshi Yadav.

The case of defence is that appellants are innocent persons and have committed no offence at all. He has been falsely implicated in this case. However, no oral or documentary evidence has been adduced by the defence.

The learned trial court, after considering the oral as well as documentary evidence available on record, held the appellants guilty for the offence under Sections 147, 341/149, 323, 325 and 307 of the I.P.C. and sentenced them as stated above.

Being aggrieved with the impugned judgment of conviction dated 10.05.2006 and order of sentence dated 12.05.2006, this Criminal Appeal has been preferred on behalf of the appellants.

Learned counsel for the appellants has submitted that the dispute arose between the parties regarding disputed landed property in a sudden manner. The injury sustained by the informant in this case, although has been opined to be caused by sharp cutting weapon as well as hard and blunt substance, but the nature of injuries is opined to be simple. X-ray report shows that fracture of shoft of Ulna, which is grievous in nature. In respect of some injuries, the opinion was reserved, but no supplementary report was brought on record. The injuries sustained by the informant are not on the vital part of the body, as such, no offence under Section 307 of the I.P.C. is constituted in the facts and circumstances of this case inasmuch as there was no intention / knowledge as required to constitute the said offence. Hence, conviction for the offence under Section 307 of the I.P.C. of the appellants is fit to be set aside. Accordingly, the appellants may be held guilty for the offence under Sections 147, 341/149, 323 and 325 of the I.P.C. for which they have been sufficiently punished during the course of trial.

It is further submitted that the appellants have remained in custody for about 11 days during course of trial of the case and after conviction. It is also submitted that it is first offence of the appellants and they have never been convicted for any other offence at all. The occurrence took place in the year 1998 due to land dispute and more than two decades have been elapsed. This fact was also pleaded before the learned Trial Court, but has not been taken into consideration without recording any special reasons as required under law. Hence, the appellants deserve the benefit of Section 4 of the Probation of Offenders Act, 1958.

On the other hand, learned APP appearing for the State has opposed the contentions raised on behalf of the appellants and defended the impugned judgment and order on merits.

I have given anxious consideration to the genesis, manner and place of occurrence, which is obviously started in a sudden manner due to land dispute between the parties. None of the injuries opined to be very serious in nature and even likely to cause death of any of the injured persons.

Constituting the offence under Section 307 of the I.P.C., the Court has to see, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section 307 of the I.P.C.

In the instance case, the grievous injuries sustained by injured persons are found not on the vital part of the body and the simple injures caused to the informant appears to be happened in sudden manner without any intention to kill the injured person or the knowledge as required to constitute offence of murder under Section 300 of the I.P.C. It is also trite that the intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflected can be considered to infer intend.

Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, I am of the considered view that conviction and sentence of the appellants for the offence under Section 307 of the I.P.C. is not sustainable and justified under law, which is hereby set aside.

This Court further finds in the background of the evidence available in this case, offences under Sections 147, 323, 325 and 341/149 of the I.P.C. are constituted against the appellants.

From perusal of impugned judgment and order, it appears that plea of first offender and extension of benefit of Section 4 of Probation of Offenders Act, 1958 has been declined without recording any special reasons by the trial court.

Considering the facts and circumstances of the case, the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, it is expedient in the ends of justice to extent the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants instead of awarding substantive sentence of imprisonment, for which the appellants appear to be entitled.

In view of above discussions and reasons, this appeal is dismissed on merits with modification in sentence to the extent that the appellants are directed to be released under Section 4 of the Probation of Offenders Act, 1958 on furnishing bond of Rs. 5,000/- with one surety instead of undergoing substantive sentence of imprisonment passed by the concerned trial court, with condition that they shall be of good behavior and shall maintain peace for a period of one year from the date of furnishing bond. The learned trial court may call for report from District Probation Officer, if so required.

Appellants are further directed to appear before the concerned trial court within three months from the date of this order and furnish the bond as per direction of this Court.

In case of violation of terms and conditions of the bond, the appellants shall be called upon to receive the sentence already awarded to him.

Accordingly, this appeal is partly allowed.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.