AI Structured Summary
Not yet generated for this judgment
Judgment
The appellants along with others were charged and tried for the offences under Sections 147, 148, 149, 323, 426, 452, 302 & 34 of the Indian Penal Code. By the impugned judgment learned trial Court has found the appellants guilty only for the charge u/s 323 and has convicted them and sentenced to undergo six months R.I.
The informant of the case Wahid Miya is the father of deceased. The F.I.R. was registered on the basis of his fardbeyan. The prosecution case, in brief, is that on 28.03.1983 at .about 5 p.m. while his son Chutur @ Chutur Miya was coming back from the tank situated in the southwest of the village after easing himself and came neat the house of Aziz Miya, the accused-appellants namely Amir Hamja, Jainuddin, Dost Mohammad, Bhutkul Mian all armed with Tangi, Farsa and Ballam chased the deceased Chutur Miya. Other accused namely Kurcha Miya (appellant No. 1), Bahru Miya (appellant No. 2), Doman Miya (appellant No. 3) and Chakla Miya (appellant No. 4) armed with lathi also arrived there and chased the deceased Chutur Miya. Chutur Miya, in order to save his life entered into the house of Aziz Miya. The accused Amir Hamja, Jainuddin, Dost Mohammad and Bhutkul Mian broke open the door of the room with Tangi, dragged Chatur out and assaulted him with deadly weapons in their hands. Chutur Miya sustained severe injury and succumbed to death.
The defence of the appellants is that they have been falsely implicated due to previous enmity and that Chutur was a criminal and was murdered in a dacoity.
In order to bring home the charges the prosecution adduced oral as well as material evidences. Altogether 11 prosecution witnesses were examined. Out of them Alijan Miya (PW-1), Gulbano Bibi (PW-2), Hamidan Bibi (PW-3), Nasirun Bibi (PW-4), Tahiran Bibi (PW-5) Pumi Bibi (PW-6) and PW-8 the informant have been said to be the eye witnesses. PW-9 is the I.O. and PW-11 is the Doctor. Those witnesses are said to be the material witnesses whereas PW-7 is a formal witness and has only proved his signature on the seizure list and the inquest report, exhibit 1 & 2 respectively. PW-K) is also a formal witness and he has proved his signature on the inquest report and the seizure list, exhibit 8 & 9.
The defence has also examined two witnesses and has proved some documents. DW-1 Divijpad Gora has been examined to prove the hospital register of the patient ticket exhibit-C and C/1 in support of the defence that earlier the informant had assaulted one of the appellants Amir Hamza and he was admitted in the Hospital for treatment and his name found entered into the said register of the hospital. DW-2 Tahir Hussain is the advocate clerk. He has been examined to prove the signature of Jairam Lal Mina, the then S.D.O. to whom information of dispute between the parties was given. Exhibit A is the case diary and Exhibit B is the signature of the Deputy Superintendent on the letter, Exhibit-D is the miscellaneous petition No. 300/82, Exhibit-E is the certified copy of the judgment in T.R. No. 461/66 (PCR No. 34/66), Exhibit-F is the forwarding letter of the S.D.J.M. of miscellaneous petition No. 300/82, Exhibit-G is the copy of the order dated 11.10.85 passed in T.R.No.15/85, Exhibit-H is the copy of the order dated 08.9.82 in S.C. No. 380/82, Exhibit-I is the chargesheet of G.R. No. 108/81. Those documents have been brought in support of the defence that there was previous enmity between the informant and the accused-appellants.
The specific case of the prosecution regarding these four appellants was that they were also a party in chasing and assaulting the informant and the informant''s son. However, it has been specifically mentioned that these appellants were armed with lathi. PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-8 were said to be the eye witnesses. They have not named these persons of causing any injury leading to murder of the informant''s son. However, from the evidences of PW-6 Purni Bibi, mother of the deceased and PW-8 Wahid Mian it appears that these persons had assaulted and caused injury (not grievous in nature) to them i.e. to PW-6 Purni Bibi and PW-8 Wahid Mian.
Learned Court below after thorough appraisal of the evidences on record found these appellants guilty u/s 323 I.P.C. and convicted them, as aforesaid.
In this appeal the appellants have assailed the order of conviction and sentence of the appellants mainly on the ground that there are contradictions in the ocular evidences. PW-1 has not stated anything about the assault on the said Purni Bibi and Wahid Mian. Further ground is that all the witnesses examined on behalf of the prosecutions are interested witnesses and their testimony is not reliable.
Learned Counsel appearing for the appellants further submitted that the Court below has not taken into consideration the period of custody already undergone by the appellants which is about five months. It has been submitted that the case is of the year 1983 and the appellants have faced the rigour of the legal proceeding for a long time and in that view at least the sentence part at least deserves modification.
Learned A.P.P. contested the appeal and submitted that the conviction of the appellants are based on cogent; evidences and consistent corroboration and the testimony of eye witnesses PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW 8 are eye witnesses who have supported the prosecution case and proved the assault on Purni Bibi and Wahid Mian with lathi. He further submitted that learned Court below, considering the above has rightly convicted the appellants u/s 323 I.P.C. and the sentence awarded by him is justified in view of the proved charge against the appellants.
We have heard learned Counsel for the appellant and learned A.P.P. and considered the points raised by the appellants. We also scrutinized the evidences and material available on record. We find that PW-6 Purni Bibi and PW-8 Wahid Miya along with other witnesses have consistently supported the prosecution version of assault on them by the appellants with lathi. However, the injury being simple in nature, learned Court below has found appellants guilty only for the charge u/s 323 I.P.C. We find no infirmity or illegality in the impugned judgment of the learned Court below.
However, we considered the appellants'' submissions on the point of sentence. It has been submitted that the appellants have already remained in custody for about five months which has been also admitted by learned A.P.P. This case is of the year 1983 and the appellants have faced the rigour of legal proceeding for more than two decades by now. We are of the view that the interest of justice would be served if the sentence of the appellants is modified to the extent of period already undergone by them.
Accordingly, we affirm and uphold the judgment and order of conviction passed by learned Court below. The sentence awarded to the appellants, however, is modified to the extent of the period already undergone by the appellants.
This appeal is dismissed with the said modification in the order of sentence.