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Judgment
Heard learned counsel for the appellants, Mr. Amrendra Kumar assisted by Mr. Manoj Kumar No.2, Advocates and learned counsel for the State,
Mr. Mukesh Kumar, learned Additional Public Prosecutor.
The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 05.11.2003, passed by 6th
Additional District Judge, Dumka in Sessions Case No. 282 of 1996/84 of 2003, whereby the appellants have been convicted by the learned Trial
Court for offence punishable under Section 324/149 of the Indian Penal Code and awarded rigorous imprisonment for one year.Â
   The present Criminal appeal has been preferred on 29.01.2004 and has been admitted on 19.05.2004 and the provisional bail granted to the
appellants by the court below, vide order dated 5.11.2003 has been confirmed. Since then, the matter is pending before this court.
The prosecution case, is based upon the fardbeyan of the informant, Jeena Rai (P.W.9), recorded by S.I., Sri Rampreet Prasad of Dumka (T)
police station, on 04.10.1995 at 2.30 p.m., at Sadar Hospital, Dumka, regarding the occurrence, alleged to be occurred on 04.10.1995 at 8.00 a.m. at
village Gaibathan, P.S- Jama, Distt.- Dumka and formal F.I.R. was drawn on the same day at 4.30 p.m., against the appellants/accused persons.
  The brief facts is, that on 04.10.1995 at 8.00 a.m. the informant, Jeena Rai, his nephew Budhu Rai, Pusoo Rai, Lodhi Rai and the wife of Budhu
Rai namely Champa Devi, his son Gudri Rai and others were present at the plot located in village Gaight, having its Jamabandi No. 22, of the said
village to construct a house. It is stated that when the informant and others were digging foundation on the said land, the accused/appellants persons
came there and they prevented them to construct house over the said land. After this, the appellants/accused persons returned and they have climbed
over the roof of the house of Podo Pal, from where they shot arrow, which hit on the chest of informant. Further an arrow blow inflicted, on the
armpit of the Budhu Rai and Champa Devi also sustained arrow blow, on her breast. These three persons became injured and they came at Sadar
Hospital, Dumka for their treatment, where the informant gave his fardbeyan before S.I. Dumka (T) Police Station. 4. On the basis of said
fardbeyan, police registered Jama P.S. Case No. 65/95, against the appellants/accused persons, under Sections 147, 341, 323, 324 and 337 of the
Indian Penal Code. Later on offence under Section 148, 149 & 307 of the Indian Penal Code was added in the F.I.R. vide order dated 26.10.1995.Â
  After investigation police submitted charge-sheet against the appellants/accused persons, on the basis of which learned Chief Judicial
Magistrate, Dumka took cognizance of the offence vide order dated 16.11.1995 and on 05.10.1996 case was committed to the Court of Sessions. On
21.04.199 and 26.6.2002 formal charges were framed against the appellants/accused persons, to which they pleaded their innocence and thus, were
put under trial.
The prosecution has examined altogether eleven witnesses. Lodhi Rai has been examined as P.W.1, Pusoo Rai has been examined as P.W. 2,
Bhothro Rai has been examined as P.W. 3, Satya Narayan Rai has been examined as P.W. 4, Khalasi Rai has been examined as P.W. 5, Champa
Devi has been examined as P.W. 6, Fekinath Rai has been examined as P.W. 7, Gudri @ Guddu Rai has been examined as P.W. 8, Jeena Rai has
been examined as P.W. 9, Jai Prakash Sah has been examined as P.W.10 and Sushil Kumar Jha has been examined as P.W. 11.
Apart from the oral evidences, the prosecution has also adduced documentary evidences. Signature of Fekinath Rai on seizure list has been marked
as Exhibit- 1, signature of Satyanarayan Rai on the seizure list has been marked as Exhibit- 1/1, signature of Jeena Rai and Fekinath Rai, on the
fardbeyan has been marked as Exhibit- 1/2 and 1/3 respectively, the three injury reports of Jeena Rai, Budhu Rai and Champa Devi has been marked
as Exhibit 2, 2 (a) and 2 (b) respectively, fardbeyan as Exhibit 3, the endorsement made by the Officer-in-Charge on the fardbeyan as Exhibit-3 (a),
endorsement made by the officer-in-Charge on the formal F.I.R. as Exhibit 4 and paragraph 1 to 54 of the case diary has been marked as Exhibit-
5.Â
After closure of the prosecution evidence, the statement of the appellants were recorded under Section 313 Cr.P.C. on 27.09.2003 and defence has
not examined any witness but has proved three documents as Exhibits ‘A’, ‘B’ and ‘C’, showing the land to be dug, which has
been marked as Exhibit ‘C’.Â
After hearing the parties, the learned Trial Court has convicted the appellants under Section 324/149 of the Indian Penal Code and awarded them to
undergo rigorous imprisonment for one year, vide judgment of conviction and order of sentence both dated 05.11.2003. Being aggrieved and
dissatisfied with the said judgment of conviction and order of sentence, the appellants have preferred the present Criminal Appeal before this
Hon’ble Court.
Heard, learned counsel for the appellant, Mr. Amrendra Kumar assisted by Mr. Manoj Kumar No. 2, Advocates. Learned counsel for the
appellants has submitted, that there is an inordinate delay in placing the F.I.R, before the learned Chief Judicial Magistrate, Dumka. The fardbeyan
was recorded on 04.10.1995, but the same was placed before the learned Additional Chief Judicial Magistrate on 06.10.1995. Learned counsel for the
appellants has submitted that 04.10.1995 was ‘Wednesday’, whereas ‘06.10.1995’ was ‘Friday’. Since the Investigating Officer
has not been examined in this case and as such it has caused serious prejudice to the appellants, as the appellants, could not get an opportunity to
cross-examine the Investigating Officer, so far delay in sending the F.I.R. to the Additional Chief Judicial Magistrate, Dumka is concerned and as
such, the impugned judgment of conviction and order of sentence is bad in law.
   Learned counsel for the appellants has further submitted, that the doctor and the Investigating Officer have not been examined in this case
and as such the injury reports which have been marked Exhibit 2, 2(a) and 2(b), the injuries of Jeena Rai, Budhu Rai and Champa Devi respectively
have been proved by P.W. 10 (Jai Prakash Sah), who is an Advocate Clerk and as such, the injury reports cannot be proved as the same has to be
proved either by the doctor, who has issued the injury reports and in case he is not present, then any competent person, who is posted in the hospital,
as a Medical Officer or person, who is well acquainted with the signature of the Doctor, who prepared the injury reports. Learned counsel for the
appellants has submitted, that there are minor contradictions in the deposition of the witnesses, that the place, from where these appellants were
shooting the arrow to the place of occurrence, is situated after one house and as such, such injury cannot be caused from the place, from where they
have shot the arrow and as such, benefit of doubt may be granted to the appellants. As also, the case has been instituted in the year 1995 and the trial
has concluded in the year 2003 and criminal appeal is being disposed of in the year 2018 and as such the appellants have faced the rigor of trial for
approximately 23 years.Â
Mr. Mukesh Kumar, the learned Additional Public Prosecutor has submitted, that no prejudice has been caused to the appellants because of the
nonexamination of the Investigating Officer and the doctor in this case. The learned Trial Court has rightly convicted the appellants under Section
324/149 of the Indian Penal Code. Learned counsel for the State has further submitted, that delay in sending the F.I.R. to the learned Additional Chief
Judicial Magistrate, is not so fatal for the prosecution case, that the same can be discarded. Learned counsel for the State has further submitted, that
the fardbeyan was recorded by S.I. Sri Rampreet Prasad of Dumka (T) Police Station at Sadar Hospital, Dumka but the F.I.R. was lodged at Jama
Police Station, which is within Sadar Police Station in Dumka and as such, placing the same on 06.10.1995 has caused no such delay, which is fatal for
the prosecution case. Learned counsel for the State, has further submitted that the injury reports of Jeena Rai as Exhibit 2, Budhu Rai as Exhibit 2 (a)
and Champa Devi as Exhibit 2 (b), are in consonance with the case and the learned Trial Court has rightly convicted the appellants under Section
324/149 of the Indian Penal Code. Learned counsel for the State has further submitted, that minor contradictions in the deposition of the witnesses, are
not fatal for the prosecution case.
Heard learned counsel for the appellants, Mr. Amrendra Kumar assisted by Mr. Manoj Kumar No. 2 and learned counsel for the State, Mr.
Mukesh Kumar, Additional Public Prosecutor and perused the record including the F.I.R., depositions and the Exhibits, this court is of the opinion that
non-examination of the Investigating Officer has not caused serious prejudice to the appellants. The injury reports are in consonance with the
prosecution case and the place of occurrence is the village, where the height of the house depends upon the financial condition of the owner of the
house. Learned counsel for the appellants has not drawn attention of any of the witnesses to show that if an arrow is shot from the place, where the
prosecution has alleged, the same will not reach to the place, where injured has sustained injuries, merely saying that there is a house, situated
between the place of occurrence and the house shooting the arrow, is not acceptable to this Court. As such, this court is of the opinion that the learned
Trial Court has rightly convicted the appellants under Section 324/149 of the Indian Penal Code, but since the appellants are facing the rigor of trial for
approximately 23 years, this court modifies the order of sentence of rigorous imprisonment for one year to the period already undergone during trial,
subject to the condition that appellants shall deposit a fine of Rs. 1000/- each in the court below within 8 weeks from today, the amount of Rs. 1000 x
8 (including eight appellants) i.e. Rs. 8000 shall be disbursed as Rs. 2000/- each to victims Budhu Rai and Jeena Rai and Rs. 4000/- to the victim
Champa Devi. The amount shall be disbursed to the victims after due verification by the lower Court. In case, the appellants fail to deposit the said
amount within eight weeks, the period of rigorous imprisonment for one year will remain as it is.Â
    In the result, the impugned judgment of conviction and order of sentence, both dated 05.11.2003, passed by 6th Additional District Judge,
Dumka in Sessions Case No. 282 of 1996/84 of 2003 in connection with Jama P.S. Case No. 65 /1995 corresponding to G. R. No. 759 of 1995 is
modified to the extent as stated above.Â
   The present Criminal appeal is dismissed with modification in the sentence.  Â
Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.