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Judgment
Heard learned counsel for the appellant and learned A.P.P. for the State.
The custody report submitted by the learned A.P.P. at the bar, be kept on record.
The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 16th July, 2009 passed in S.T. No. 426 of 2008 by the learned Addl. Sessions Judge, Fast Track Court No. -2, Jamshedpur, whereby and whereunder, the appellant has been convicted for the offence under Section 307 and 323 of the IPC and sentenced to undergo R.I. for seven years along with a fine of Rs. 5,000/- for the offence punishable under Section 307 of the IPC and further R.I. for six month for the offence under Section 323 of the IPC. All the sentences were directed to run, concurrently.
Factual Matrix
The factual matrix giving rise to this appeal is that on 29.10.2007, at about 07:35 AM, the accused (appellant) was fixing a Bamboo adjacent to the wall of the back side of the house of the informant Shabanam Khatoon. Upon this, the informant objected, then, accused appellant abused her. Thereafter, the brother of the informant came out and asked as to why, the accused was abusing her sister. Then, the appellant along with other accused persons caught and beat the brother of the informant. It is also alleged that the accused persons also threw bricks upon the informant and her father who sustained injuries on his head and hand. It is also alleged that the accused appellant also threw brick upon the brother of the informant who also sustained head injuries.
On the basis of fardbeyan of the informant, Jugsalai P.S. Case No. 171/2007 was registered for the offence under Sections 341, 323, 325 and 307 read with Section 34 of the IPC. After completion of investigation, the charge-sheet was submitted against the accused persons under Sections 341, 323, 325, 307 and 34 of the IPC and after taking cognizance, the case was committed to the court of Sessions, where S.T. No.426 of 2008 was registered. The accused persons pleaded not guilty and claimed to be tried.
In course of trial, altogether 6 (six) witnesses were examined by the prosecution apart from documentary evidence.
On the other hand, no oral or documentary evidence has been adduced by the defence. The case of the defence is complete denial from the occurrence and innocent.
Submissions on behalf of the appellant:-
Learned counsel for the appellant has submitted that the allegation is against four accused persons and tried jointly but only the appellant has been held guilty and sentenced for the offence under Section 307 as well as 323 of the IPC. There is simple allegation of causing injury by brick which happened from both sides on the spur of the moment due to sudden quarrel between the parties on the issue of fixing bamboo and land dispute. It has further been submitted that the injuries sustained by the injured has not been exclusively attributed to the appellant although injury report shows that there was one head injury which was found to be grievous in nature as per supplementry injury report (Ext.-2/1) and even if the injury was found grievous in nature, it cannot be said that the same was caused with intention to kill the injured who is still surviving. Therefore, at best, offence under Section 325 IPC is attracted.
In the alternative, it is submitted that the appellant has remained in custody for one year five months three days and has sufficiently been punished for his guilt. Therefore, it is prayed that sentence of the appellant may be reduced to the imprisonment already undergone by him.
Submissions on behalf of the State:-
Learned A.P.P. has opposed the aforesaid contention raised on behalf of the appellant defending the impugned judgment on merits and has fairly admitted that the appellant has remained in custody for about one year 5 months three days, hence, appropriate order may be passed.
Analysis, reasons and decision
I have gone through the record of the case along with the impugned judgment and order of conviction and sentence in the light of the contentions raised on behalf of parties.
The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law, which requires any interference in this appeal?”
I have meticulously examined the evidence of the witnesses as available on record.
It appears that the learned trial court has held the appellant guilty for the offences under Sections 323 & 307 of the I.P.C. and from perusal of evidence of prosecution witnesses including the injured witness i.e. informant (P.W.-1) who has deposed that the present appellant threw brick which hit her, her father and brother but perusal of testimony of the father of the informant (P.W.-2) reveals that he has not specifically named the present appellant in throwing brick but one brick hit the brother of the informant thrown by the present appellant. Other witnesses of this case have deposed that on hearing noise, they reached at the place of occurrence and saw that all the accused persons were beating the injured. The Doctor who has examined the injured (Chand Khan (P.W.-5) on the date of occurrence has found the injury grievous in nature.
The Hon’ble Apex Court in the case of Jage Ram vs. State of Haryana, (2015) 11 SCC 366 has laid down some basic ingredients that has to be established for conviction under Section 307 of the IPC. Relevant para 12 of the above judgment is extracted as under:-
“12.For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”
Similarly, the relevant para 7 of the judgment of Hon’ble Apex Court in the case of Hari Singh Vs. Sukhbir Singh & Ors. (1988) 4 SCC 551 is extracted as under:-
“7.On the first question as to acquittal of the accused under Section 307/149 IPC, some significant aspects may be borne in mind. Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused.
Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.”
In the given factual background, I find that the injury sustained by the sole injured has not been exclusively attributed to the appellant which was grievous in nature. Even if the injury was found to be grievous in nature, it cannot be said that it was the appellant who alone caused the injury with intention to kill the injured who is still surviving. Therefore, the requisite intention and knowledge to constitute offence under Section 307 IPC is absolutely lacking in this case rather the offence under Section 325 of the IPC is attracted, at best. Therefore, the conviction of appellant for the offence under Section 307 of the IPC is not justifiable under law, therefore, he deserves acquittal from the charge under Section 307 of IPC. But at the same time, there is specific allegation against appellant for causing injury to the informant, which finds corroboration from the injury report, therefore, I hold the appellant guilty for the offence under Section 323 and 325 of the I.P.C. I further find that appellant has already undergone around one year five months and three days imprisonment during pendency of this case, therefore, he has sufficiently been punished for the offence committed by him as discussed above.
In result, the appellant is held guilty for the offence under Section 323 and 325 of the IPC and sentenced to the extent of imprisonment already undergone by him.
Accordingly, this appeal is dismissed on merits with modification in conviction and sentence of the appellant as stated above
The appellant is on bail, hence, he is discharged from the liabilities of bail bonds. The sureties are also discharged.
Pending I.A.(s), if any, is also disposed of, accordingly.
Let a copy of this judgment along with Trial Court Record be sent back to the court concerned immediately for information and needful.