Pradeep Kumar Srivastava, J
1. Heard learned counsel for the parties.
2. Present appeal is directed against the judgment of conviction and sentence dated 23.03.2006 passed by learned Sesssions Judge, Dhanbad in Sessions Trial No. 213 of 1999 whereby and where under, the appellants have been held guilty for the offence punishable under Section 307 and 452 read with 34 of the I.P.C. and sentenced to undergo R.I. for three years with a fine of Rs. 500/- for each offences with default stipulation.
FACTUAL MATRIX
3. Factual matrix giving rise to this appeal in a narrow compass is that on 24.02.1998 at about 3:30 PM, the appellants armed with Lathi entered into the house of complainant and assaulted the wife of complainant, namely, Sushila Devi which caused injury to her on head. It is further alleged that she was brought to Sitapur hospital for treatment and her condition was serious. Therefore, she was sent to Central Hospital, Dhanbad.
4. For the above occurrence, a complaint case was instituted, which was sent by the learned Chief Judicial Magistrate, Dhanbad under Section 156(3) Cr.P.C. to concerned police station for registration of FIR and investigation. Accordingly, Jora Pokhar P.S. Case No. 116 of 1998, was registered for the offences under Sections 307/452 of the I.P.C.
5. After completion of investigation, the Investigating Officer has submitted the charge sheet against accused persons for the offences punishable under Sections 307/452/34 of the I.P.C. After taking cognizance of offence, the case was committed to the court of Sessions for trial. Thereafter, charges were framed for the offences under Sections 452/34 and 307/34 of the I.P.C. against the accused persons which they denied and claimed to be tried.
6. In order to substantiate the charges levelled against them, altogether seven witnesses were examined by the prosecution.
P.W.-1 : Magister Singh Yadav.
P.W.-2 : Sushial Devi (Injured).
P.W.-3 : Jawahar Yadav (Husband of the Injured).
P.W.-4 : Shrawan Kumar Yadav.
P.W.-5 : Raj Kumar.
P.W.-6 : Dr. Ashok Kumar (Medical witness who examined the injured)
P.W.-7 : Kumar Saryu Anand (Investigating Officer). Apart from oral evidence, following documentary evidences were also adduced.
Exhibit-1 : Signature of Jawahar Yadav on complaint petition.
Exhibit-1/1 : Signature of Doctor.
Exhibit-2 : Injury Report.
Exhibit-3 : Formal FIR.
7. The case of defence is denial from occurrence and false implication. However, no oral or documentary evidence has been adduced by the defence.
8. Learned counsel for the appellants has submitted that there was land dispute between the parties over the sahan land and the occurrence has also taken place in front of the main gate of the informant party over the sahan land, where cattle were tied and the same was the disputed land between the parties. It is further submitted that there are general and omnibus allegations against the appellants about causing injury to the informant party. The genesis and manner of occurrence as described by the prosecution witnesses coupled with injury sustained by informant’s wife does not attract the invocation of offence under Section 307 of the I.P.C. in as much as, the required intention and knowledge is absolutely lacking in this case to constitute the offence under Section 307 of the I.P.C. rather it falls under Section 323 of the I.P.C. It is further argued that offence under Section 452 of the I.P.C. is also not attracted in this case as the place of occurrence is outside of the door of the informant which is described as sahan land and there was dispute for the said land, hence, ingredients of offence under Section 452 of the I.P.C. is also not applicable in this case. Therefore, conviction and sentence of the appellant for the offences under Section 307 and 452 of the I.P.C. read with 34 are fit to be set aside. It is further submitted that the appellants have remained in custody for near about 1 month, in the course of trial and also ready to deposit the fine of Rs.500/- which was imposed. Altogether 26 year has been lapsed, since then appellants have maintained peace and never involved in any other criminal activity. Hence, impugned judgment and order may be set aside and sentence be altered and modified for the period already undergone.
9. Per contra, learned Spl. P.P. appearing for the State has opposed the aforesaid contentions and defended the judgment on merits.
10. I have gone through the entire record, in the light of the argument raised on behalf of both side and also perused the impugned judgment and order.
It appears that altogether seven witnesses were examined by the prosecution out of them, the sole injured witness is P.W.-2 Sushila Devi and she has stated that on the date of occurrence at about 03:30 PM, she along with the other family members was sitting in the house. Meanwhile, a Lakhan Yadav, Bramhadeo Rawani and Champa Devi started assaulting her by Lathi indiscriminately on head. After hearing hullah, her husband run towards the place of occurrence and saved her. P.W.-1 Magister Singh Yadav and P.W.-3 Jawahar Yadav (Husband of the injured) have concocted the prosecution story as eye witnesses of the occurrence. P.W.-4, Shrawan Kumar Yadav has been declared hostile by the prosecution. P.W.-5 Raj Kumar is the son of informant who has projected himself to the eye witness, but admittedly, he was not present at the time of occurrence and he had returned from market after some time. P.W.-6, Dr. Ashok Kumar, who has examined the injured Sushila Devi and got single injury which was found stitched wound about 2”x soft tissue deep over the scalp and complain of pain, swelling and tenderness all over the body and after X-ray report, the injury was found to be simple in nature caused by hard blunt object. P.W.-7, Kumar Saryu Anand is the I.O. of the case. According to his evidence, the place of occurrence is the land disputed in the front of the house of the informant which is used as a sahan land for cattle and the occurrence of assault with the injured took place at the sahan land outside of the house.
11. From the aforesaid discussion of prosecution evidence and the nature of injury sustained by the sole injured. The genesis and manner of occurrence clearly shows that the ingredients of offence under Section 307 of the I.P.C. as well as Sections 452 of the I.P.C. are absolutely lacking in this case. It is also apparent that the disputed land is situated outside of the house of the informant, there was bona fide land dispute regarding place of occurrence, single blow injury by Lathi was inflicted to the injured and she has sustained simple injury, therefore, conviction and sentence of appellants for the offence under Section 452 and 307 read with 34 of the I.P.C. is not warranted under law rather the case falls under Section 323 read with 34 of the I.P.C. against the appellants for voluntarily causing simple hurt to the sole injured.
12. In view of aforesaid discussions and reasons, conviction and sentence of the appellant for the offence under Sections 307, 452 read with 34 of the I.P.C. is hereby set aside. The appellants are held guilty for the offence under Section 323/34 of the I.P.C. for which they have already remained in custody for one month. Therefore, without awarding any substantive sentence of imprisonment, the appellants are directed to pay jointly fine of Rs.5,000/- which was be used for defraying the prosecution cost. Accordingly, this appeal is partly allowed with modification in sentence as stated above.
13. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.
