Pradeep Kumar Srivastava, J.
1. Heard learned counsel for the parties.
2. Above named appellants have preferred this criminal appeal challenging their conviction and sentence dated 20.01.2018 / 27.01.2018 passed by
learned 3rd Additional Sessions Judge, Deoghar in Sessions Trial No. 25 of 2006, arising out of Sonaraithari Sarwan P.S. Case No.84 of 2005 (G.R.
Case No.508 of 2005) registered under Sections 147, 148, 149, 341, 323, 324, 307 of the Indian Penal Code, whereby and whereunder, the appellants
have been held guilty for the offence under Sections 307, 323 and 147 of the I.P.C. and sentenced to undergo R.I. for ten years for the offence under
Section 307 of the I.P.C. with fine of Rs. 5,000/- with default stipulation, R.I. for two years for the offence under Section 147 of the I.P.C. and one
year for the offence under Section 323 of the I.P.C. All the sentences were directed to run concurrently.
FACTUAL MATRIX
3. The factual matrix giving rise to this appeal in a narrow compass is that on 03.07.2005 at about 6:00 AM, the informant was ploughing his field,
meanwhile, present appellants namely, Ashin Ansari (since deceased), Jahangir Ansari, Bhutel Ansari, Karu Mian, Ishaque Mian and Alamgir armed
with iron rod, farsa and lathi started assauling the informant on his head and also assaulted Rafique Mian on his head with intention to kill them.
Jahangir Mian also threatened to kill them by shooting. It is further alleged that in the said occurrence, Yakub Mian was also assaulted by farsa blow
on his head.
4. On the basis of above information, FIR was registered against the accused for the offence under Sections 147, 148, 149, 341, 323, 324, 307 of the
I.P.C.
5. After completion of investigation, the Investigation Officer of the case has submitted charge sheet against six accused persons namely, Ashim
Ansari, Jahangir Ansari, Bhutel Ansari, Karu Mian, Ishaque Mian and Alamgir Ansari for the offence under Section 147, 148, 149, 341, 323, 324 and
307 of the I.P.C. After taking cognizance of offence, the case was committed to the Court of Sessions, where S.T. Case No. 25 of 2006 was
registered and in due course, transfer to the Court of Additional Sessions Judge-III, Deoghar for trial and disposal. One Co-accused namely, Karu
Mian was declared juvenile and his trial was splitted. The charges were framed against all the five accused persons for the offence under Sections
148/324/147, 323/149 and 307/147 of the I.P.C., which they denied, pleaded not guilty and claimed to be tried.
It appears that in course of trial, one accused Ishaque Mian died. Hence, proceeding against him was dropped vide order dated 16.09.2013.
It further appears that co-accused Karu Mian, who was declared Juvenile, subsequently, he was acquitted in the court of learned Juvenile Justice
Board, Deoghar in the year 2011.
6. In order to substantiate the charges levelled against rest accused persons, altogether six witnesses were examined by the prosecution.
7. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced.
Exhibit-1 Â Â Â Â Â Â Â Â : Â Â Â Â Â Â Â Â Â Signature of Munajir Ansari on fardbeyan.
Exhibit-2Â Â Â Â Â Â Â Â Â : Â Â Â Â Â Â Â Â Signature on written report. Â Â Â
Exhibit-2/1 Â Â Â Â Â Â : Â Â Â Â Â Â Â Â Â Endorsement.Â
Exhibit-3 to 3/2 : Â Â Â Â Â Â Â Â Â Injury report of Nazir Mian, Matijan Bibi and Yakub Mian.Â
Exhibit-3/3 & 3/4 : Â Â Â Â Â Â Supplementary injury report of Matijan Bibi and Yakub Mian.
8. The case of defence is denial from occurrence and false implication due to land dispute. However, no oral or documentary evidence has been
adduced by the defence.
9. The learned trial court, after evaluating the evidence available on record, found the appellants not guilty for the offence under Sections 148, 149 and
324 of the I.P.C. and acquitted them from the said charges, but at the same time, the appellants were held guilty for the offence under Sections 307,
323 and 147 of the I.P.C. and sentenced as stated above.
10. It appears that during pendency of this appeal, appellant no. 2 namely, Ashin @ Ashin @ Ashim Ansari has died and to this effect, an affidavit
dated 03.09.2024 has been filed on behalf of Sate.
11. It is pertinent to mention at the very outset that I.A. No. 6746 of 2024 has been filed by the appellants and the injured person jointly.
12. It is urged by learned counsel for the appellants that admittedly, there was land dispute between the parties and the occurrence took place in a
sudden manner without any pre-meditation or design to commit any serious offence. The totality of circumstances of the case goes to show that the
required intention or knowledge for constituting the offence under Section 307 of the I.P.C. is absolutely lacking in this case. Similarly, there was no
lawful assembly formed by the appellants for doing any unlawful act in prosecution of any unlawful object as defined under Section 141 of the I.P.C.
Therefore, the offence under Section 147 of the I.P.C. is also not attracted in this case. Both parties have voluntarily settled their dispute through
intervention of well-wishers and mutual peace and harmony has been restored between the parties. Rest of the offence under Section 323 of the
I.P.C., for which the appellants have also been convicted and sentenced, is compoundable in nature. The appellants and the injured informant party of
this case have presented joint compromise petition, which is fit to be accorded in the ends of justice and in view of compromise between the parties,
the appellants deserves to be acquitted.
13. Per contra, learned APP appearing for the State has opposed the aforesaid contentions raised on behalf of the appellants, but no objection has
been raised on behalf of the respondents / injured persons. It is submitted by learned APP that all the three injured persons in this case have received
incised wounds on the vital part of the body, although, simple in nature, but caused by sharp cutting weapon and some of the injuries are found to be
grievous in nature caused by hard blunt object. As per evidence available on record, the appellants have attacked on the injured persons with intention
to kill them, as such, they have rightly been convicted for the offence under Section 307 of the I.P.C., which is not compoundable in nature. Hence,
joint compromise petition (I.A. No. 6746 of 2024) filed by the parties is not maintainable under law and there is no illegality and infirmity in the
impugned judgment and order, which calling for any interference. This appeal has not merit and fit to be dismissed.
14. For proper appreciation of this case, the evidence of injured persons deserves to be discussed herein.
15. P.W.-2 Yakub Mian has stated that his son was ploughing his field at 7 O’ Clock. Meanwhile, all of a sudden Jahangir, Yasin Mian, Bhutel
Mian, Karu Mian and Ishaque Mian having farsa, rod and lathi resisted the ploughing of field. Najir Ansari was assaulted with farsa on his head,
Bhutel assaulted him with rod, Jahangir also assaulted with farsa on his head. His wife Matizan Bibi was assaulted by Bhutel Mian. His son went to
police station and thereafter, he went to the hospital for treatment, where the police has recorded his statement. He has also admitted land dispute
between the parties, which is the reason for the occurrence.
16. P.W.-3 Matizan Bibi is another injured in this case. According to her evidence, the occurrence took place in a sudden manner while her son was
ploughing their own land. She has stated that her husband was assaulted by Jahangir and Alamgir and she was also assaulted with lathi on her hand
and leg by Yasin. The occurrence took place due to land dispute.
17. P.W.-4 Najir Ansari (informant) was ploughing the field at the relevant time of occurrence. According to his evidence also, all of a sudden Yasin,
Jahangir, Bhutel and Ishaque Ansari armed with farsa, lathi and iron rod came their and forbade him from ploughing the land and also started
assaulting on head of his father, mother and this witness also. He has lodged written report of this case. He also admitted that there was dispute
between the parties with regard to partition of land.
18. P.W.-6 Dr. Rameshwar Mahto has examined the injured Nazir Mian and found following injuries:-
(i) Incised wound over left parietal area of the skull 2 ½ x ¼†x bone deep, bleeding present.
(ii) Incised wound over middle of skull 2†x ¼†x bone deep, bleeding present.
(iii) Incised wound over occipital area of the skull 1½†x ¼†x scalp deep.
(iv) Complain of body ache.
He has also examined injured Matizan Bibi and found following injuries:-
(i) Swelling with tenderness over left hand including wrist 4†x 2â€, x-ray advised.
(ii) Swelling with tenderness on left knee 2†x 2â€.
(iii) Complain of body ache.
He has also examined injured Yakub Mian and found following injuries:-
(i) Incised wound on right parietal area of the skull 3†x ¼†x bone deep bleeding present.
(ii) Incised wound on left parietal area of the skull 2½†x ¼†x bone deep, bleeding present.
(iii) Incised wound over occipital area 1†x ¼†x scalp deep, bleeding present.
(iv) Swelling with tenderness area right elbow including forearm. X-ray advised.
19. P.W.-1 Takbul Mian is the hostile witness.
20. P.W.-5 Chandra Mohan Hansda is the I.O. of the case who has proved the investigation and submission of charge sheet etc.
21. From the injury report of all the injured persons as discussed above, it is crystal clear that injured Najir Ansari (informant) has sustained three
incised wound over different parts of the body, but all the injuries are opined to be simple in nature caused by sharp cutting weapon.
Injured Matizan Bibi has sustained swelling with tenderness over left hand including wrist and left knee, which are also found to be simple in nature
caused by hard and blunt substance. But, supplementary injury report shows that there was fracture in the forearm of IInd metacarpal bone of left
hand and injury was accordingly opined to be grievous in nature.
Another injured Yakub Mian has also sustained three incised wounds on different parts of the body, which have been opined to be simple in nature
caused by sharp cutting weapon and forth injury is swelling with tenderness area on right elbow including forearm caused by hard blunt substance,
which after X-ray report shows fracture. Accordingly, opined to be grievous in nature.
22. We 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. The spade is commonly used in agriculture, which may be considered as sharp cutting weapon, as has been used in this
case by the appellants for assaulting the informant party. None of the injuries caused by spade, although being cut injuries have not been 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.
23. 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 by
spade appears to be happened in sudden manner without any intention to kill the injured persons 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.
24. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, we are 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.
25. We further find in the background of the evidence available in this case, offences under Sections 323, 324, 325 of the I.P.C. are constituted
against the appellants, out of which, offence under Section 324 of the I.P.C. is not compoundable in nature. Therefore, considering the overall aspect
of the case, the impugned judgment is altered and modified to the extent that the conviction of the appellants under Section 307 and 147 of the I.P.C.
is set aside and their conviction for the offence under Sections 323 and 324 of the I.P.C. is maintained, but the sentence is reduced to the period
already undergone. The appellants are on bail, as such, they are discharged from their respective liability of bail bond.
26. Since the appellant no. 2 namely, Ashin @ Ashin Ansari @ Ashim Ansari has died on 23.03.2023, hence, the appeal is abated against him.
27. Accordingly, this appeal as well as I.A. No. 6746 of 2024 stand disposed of.
28. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.
