Sk.Khurshid and Ors. Vs State of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.70 of 2006

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====================================================== 1. SK.KHURSHID, Son of S.K. Doman

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Razzaque, Son of S.K. Khurshid

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Sajjade, Son of S.K. Khurshid

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S.K. Anwar, Son of S.K. Khurshid

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All are resident of Village- Murballa, P.s. Araria District- Araria.

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... ... Appellant/s Versus State Of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. N.K. Agarwal, Sr. Advocate Mr. Arvind Kumar Mr. Kumar Rajdeep Ms. Diksha Kumari For the Respondent/s : Mr. A.M.P. Mehta, APP ======================================================

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CORAM: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR ORAL JUDGMENT

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Date : 22-07-2024

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Heard Mr. N.K. Agarwal, learned senior counsel on behalf of the appellants and Mr. A.M.P. Mehta, learned APP appearing for the state

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This appeal has been preferred by the appellants being aggrieved and dissatisfied with the judgment of conviction dt. 20.01.2006 and order of sentence dt. 24.01.2006 passed by learned Additional District & Sessions Judge, F.T.C. No.-V, Araria, in Sessions Trial No. 653/1997 and 103/2004, whereby and whereunder the appellants/ convicts were convicted u/s 307 of the Indian Penal Code. The appellants have

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been sentenced to undergo rigorous imprisonment for five years for the offence punishable u/s 307 of the Indian Penal Code and fine of Rs. 1000/- (one Thousand) each and in default of payment of fine, they had further been sentenced to undergo simple imprisonment for one month.

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In compliance of order dated 29.4.2024, a letter dated 26.6.2024 sent by Superintendent of Police, Araria has been received which suggests that appellant no.1 namely, S.K. Khurshid had died on 27.12.2017 and in this respect, death certificate is annexed with it. In such circumstances, appeal against appellant no.1 S.K. Khurshid stands abated under the provision of Section 394 of the Code of Criminal Procedure (Cr.P.C.).

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The prosecution case as per fardbeyan of the informant (P.W.-4) is that on 28.6.1996 at about 11:00 AM while he was moving towards his jute field, he saw accused persons plucking moong crop from his field and two oxen were also grazing. After this, the informant reached there and objected the same, on which appellant, S.K. Khurshid order to assault him. Thereafter, appellant no.4 Anwar run towards the informant and assaulted by means of lathi. When the informant tried to save himself, in the meantime, appellant no. 3 Sajjade

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came there and gave him knife blow causing injury on his right thumb. Appellant no.2 Razzaque also assaulted the informant due to which he fell down and became unconscious. After that, the informant was taken to hospital for treatment.

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On the basis of fardbeyan of the informant (P.W.4), an FIR was registered as Araria (R.S.O.P) P.S. Case No. 241 of 1996 for the offences punishable under sections 342, 323, 324/34 of the Indian Penal Code and section 24 of the C.T. Act. After completion of investigation, investigating officer submitted charge-sheet against the appellants/ convicts. On the basis of charge sheet and materials available on record, 1^st Additional Sessions Judge, Araria took cognizance. The charge for the offence u/s 342, 323, 324, 307 of the I.P.C. and section 24 of C.T Act was framed against appellants and the case was committed to the court of Sessions for its disposal.

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The defense of the appellants/convicts totally denied from the charges leveled against them and pleaded for their innocence.

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The point to be considered in this appeal before this Court is whether the prosecution has been able to convict the appellants/accused beyond the shadow of reasonable doubt

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or not.

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In order to bring home the guilt to the accused, altogether eight witnesses have been examined on behalf of the prosecution whereas two witnesses have been examined on behalf of the defense. The compromise petition and permission petition have been marked as exhibits D & D/1.

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P.W.-1, Md. Wasik is brother of the informant who deposed in his evidence that on the alleged date of occurrence, he came to know that the informant was in injured condition and he had been admitted in Araria Hospital. He further deposed that when the informant regained his sense, he narrated the story to him that the aforesaid appellants assaulted him.

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P.W.-2 Md. Yunus is brother-in-law (Jija) of the informant who deposed in his evidence that on the alleged date of occurrence, he was spraying fertilizer in his filed and when he was returning, he found the informant Jasim in injured condition, stained with blood.

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P.W.-3, Md. Sarif deposed in his examinationin-chief that on the alleged date of occurrence, he was scrapping grass in his land then he saw two cattle of appellant

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Khurshid grazing in the jute filed of informant. When the informant opposed the same, Khurshid ordered for assaulting on which, accused Anwar assaulted with lathi and Sajjad assaulted the informant with knife. Thereafter, accused Razzaue assaulted the informant with dabiya due to which blood started oozing out. He further deposed that when he reached there the accused persons fled away. This witness in his crossexamination deposed that when he reached at place of occurrence, he found the informant in injured condition.

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P.W.-4 is informant of this case who deposed in his evidence that on the alleged date of occurrence, while he was going to his filed, he saw accused persons plucking moong crop and also getting his field grazed by oxen. On being asked about the said act, the accused persons started assaulting him. Accused Anwar assaulted with lathi, Sajjad assaulted with knife on his neck and then accused Razzaque assaulted with dabiya on which, he fell down. He further deposed in his crossexamination that the alleged incident took place in moong filed which had been shown to I.O. by him.

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P.W.-5 Md. Aslam as well as P.W.-7 Md. Farookh who have been declared hostile. P.W.-8 namely, Gendaru Uraon is a formal witness who proved the fardebeyan

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as exhibit-2.

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P.W.-6. Dr. Ramchandra Prasad is treating doctor who deposed in his evidence that he examined the injured Jasim (PW-4) and found six injuries on his person as a sharp cut wound on left side of neck, three linear abrasions on left shoulder, a linear abrasion below right nipple, a bruise at posterior end of left axilla, a abrasion over the left latual side and another sharp cut wound over left thumb. He further deposed that out of six injuries, two were caused by sharp cut object and the remaining injuries were caused by hard and blunt substance and all injuries are simple in nature.

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On the other hand, the defence has also examined two witnesses namely, D.W.-1 Arif Hussain and D.W.-2 Ishrarul Haque. D.W.-2 deposed in his evidence that both the parties has compromised the case and he was also present at the time of compromise.

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Mr. N.K. Agarwal, learned senior counsel on behalf of the appellants submitted that the impugned judgment of conviction and order of sentence is perverse and not based on evidence. The trial court had not appreciated the fact that there was no premeditation on the part of the appellants to

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commit an offence as alleged. The occurrence is alleged to have taken place on the spur of movement. It is further submitted that the doctor who has examined the victim, opined that all the injuries found on the person of the victim were simple in nature and were not dangerous to life and the death cannot be caused by such type of injuries. In this case, the appellants convicted u/s 307 of the I.P.C. but according to injury report as well as evidence of the doctor, the case does not come under the purview of u/s 307 of the I.P.C. It is further submitted that learned trial court has committed an error in not appreciating the compromise which was made between the parties as early as in February, 1997 and a petition to this effect was filed in court which was marked as Ext. ‘D’.

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In contra, Mr. A.M.P. Mehta, learned APP appearing for the state submitted that the judgment of conviction and order of sentence is fit and proper and the same is based on consistent and cogent evidence.

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I have gone through the entire evidence adduced on behalf of the prosecution as well as defense during trial. It is a cardinal question for consideration that whether the prosecution succeeds to establish the offence u/s 307 of the Indian Penal Code with consistent and cogent evidence. If the

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prosecution fails to prove the charge leveled against the appellants u/s 307 of the I.P.C., the compromise made between the parties is fit to be appreciated and on the basis of compromise, the appellants/convicts are entitled to be acquitted.

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In this case, the injury sustained on the person of the injured (PW-4) was proved by the doctor (P.W.-6) during trial. The Doctor P.W.-6 deposed that on 18.9.1996 at about 2:00 P.M., he examined the injured Jasim (PW-4) and found six injuries on his person. One sharp cut wound on the left side of his neck, just above the middle of left collar bone 1”x1/8”x1/8” mussle deep was found by the doctor. Besides this, doctor found linear abrasion on the body of injured. One bruise was also found. Another sharp cut wound over the left thumb 1/2”x1/10”x1/10” was found by the doctor. The doctor (PW-6) opined that injury no.1 and 6 are sharp cut wound caused by sharp cut objects such as katta and knife. He further opined that other injuries were caused by means of hard and blunt substance. From perusal of the evidence of the Doctor (PW-6), out of six injuries of the injured (P.W.-4), two injuries were caused by sharp cut object and the remaining injuries were caused by hard and blunt substance.

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The doctor also opined that all above injuries were simple in nature and not dangerous to life and death couldn't be caused by such type of injuries.

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After scrutinizing the oral and medical evidences, this Court is of the view that the prosecution has failed to prove the charge as against the appellants under Section 307 of the Indian Penal Code. Hence, no case u/s 307 of the I.P.C. is established from the prosecution evidence against the appellants as there is no intention to kill the injured by the appellants/convicts. The prosecution has succeeded to prove the ingredients of the offences u/s 324 and 323 of the Indian Penal Code against the appellants. It is also apparent from the materials available on record that the case has been compromised earlier in between the parties. The compromise and permission petitions are exhibited as D & D/1 respectively and the same have been proved by D.W.-2 in para-3 of his evidence.

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I am of this view that the compromise petition (exhibit-D) is maintainable and both the offences u/s 323 and 324 of the Indian Penal Code are compoundable, as such, the compromise petition and permission petition exhibited as D & D/1 are allowed and the judgment of conviction and order of

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sentence is hereby set aside.

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The appellant nos. 2, 3 & 4 are acquitted on the basis of compromise and they are discharged from the liabilities of the bail bonds. So far as appellant no.1 namely, S.K. Khurshid is concerned, the appeal against him stands abated as he died on 27.12.2017.

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Accordingly, the appeal stands allowed.

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(Sunil Kumar Panwar, J)

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Amandeep/-

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AFR/NAFR	NAFR
CAV DATE	N/A
Uploading Date	25.7.2024.
Transmission Date	25.7.2024.

Sk.Khurshid and Ors. v. State of Bihar

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Sk.Khurshid and Ors. v. State of Bihar

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