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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL KUMAR PANWAR, J.
Md. Umar, son of Late Md. Rabban and Ors. – Appellants
Versus
State Of Bihar - Respondent
Criminal Appeal (SJ) No.321 of 2006
Decided On : 23-02-2024
PROBATION - CRIMINAL LAW - Sections 325, 307, 149 of IPC; Section 4 of the Probation of Offenders Act - The court discussed the applicability of Sections 325 and 149 of the Indian Penal Code, emphasizing that while the appellants were found guilty of causing grievous hurt, the prosecution failed to prove the intent to kill under Section 307. The court also highlighted the provisions of the Probation of Offenders Act, allowing for the release of the appellants due to their old age and the nature of the offense, thus influencing the decision to uphold the trial court's judgment.
Fact of the Case:
The appellants were convicted for assaulting the informant, Md. Kamaluddin, and others, using lathi and bricks, resulting in grievous injuries. The incident occurred during a dispute over land ownership, with the informant alleging that the appellants formed an unlawful assembly to attack him. The trial court found them guilty under Sections 325/149 of the IPC but released them under the Probation of Offenders Act due to their age and the circumstances of the case.
Finding of the Court:
The court found that the trial court's judgment was based on consistent evidence from witnesses who testified to the assault. However, it concluded that the prosecution did not establish the intent to kill necessary for a conviction under Section 307. The court upheld the conviction under Section 325/149, affirming the trial court's decision to release the appellants on probation.
Issues: Whether the prosecution proved the charges against the appellants beyond a reasonable doubt, particularly regarding the intent to kill and the applicability of the Probation of Offenders Act.
Ratio Decidendi: The court determined that while the appellants were guilty of causing grievous hurt, the lack of evidence for intent to kill under Section 307 meant that the conviction under that section could not be sustained. The application of the Probation of Offenders Act was justified given the appellants' age and the nature of the offense.
Final Decision: The appeal was dismissed, affirming the trial court's judgment of conviction under Section 325/149 of the IPC and the decision to release the appellants on probation.
JUDGMENT :
(Sunil Kumar Panwar, J.) :
Heard Mr. Vipul Sinha, learned AmicusCuriae on behalf of the appellants and Ms. Anita Kumari Singh, learned APP appearing for the State.
2. This present appeal has been preferred against the judgment of conviction dated 23.03.2006 and order of sentence dated 25.03.2006, passed by learned Additional Sessions Judge, F.T.C.-IV, Begusarai in Sessions Trial No. 161/90, arising out of Ballia P.S. Case No. 73 of 1989, whereby and where-under though the appellants were found guilty of the offences punishable under Sections 325/149 of the Indian Penal code, but they had been released under Section 4 of the Probation of Offenders Act, keeping in view the old age of the appellants, the background in which the case was registered and the nature of offence and on their furnishing bond of Rs. 2000/-with two sureties each of the like amount separately with their undertaking that they shall maintain peace and good behavior for two years.
3. The Prosecution case is based on the Fardbyan of Md. Kamaluddin (Exhibit 4), stating therein that on 3.6.1989 at about 10:15 A.M. while he was getting the construction of boundary wall with the help of laborers, all the accused persons, variously armed with pistol, lathiand bricks, forming an unlawful assembly came there. Accused Md. Rabban ordered his companion to assault the informant. Thereupon, all the accused person started assaulting the informant by means of lathi and bricks. Md. Rabban is alleged to have thrown chili powder in the eye of the informant. Upon assault, the informant sustained injury on his head and face which caused bleeding from his head and mouth. One teeth of the informant was also broken in the assault. On hearing alarm, of the informant, his brother-in-law(Sala) Md. Shaukat (PW 2) and Md. Zafar (PW 1) rushed there to save the informant but they were also assaulted by the accused persons by means of lathi and bricks. When Md. Daud (PW 5) came there to save his father Md. Kamaluddin, it is further alleged that accused Md. Umar tried to drag him by wrapping a rope around his neck. Other accused persons also assaulted Md. Daud by means of lathi and bricks. It is also alleged that accused Md. Umar and Md. Shakeel fired, aiming pistol at Md. Daud, to which he narrowly escaped.
4. On the basis of fardbyan formal F.I.R. (Exhibit 6) was drawn up and Balia P.S. case No. 73/89 was registered against all the accused persons.
5. After completion of investigation, charge-sheet was submitted against them and accordingly, cognizance was taken. Therefore, the case was committed to the Court of Session for trial and disposal.
6. The charges were framed against all the accused persons under Sections 307/149 and 337 of the Indian Penal Code and further under Section 27 of the Arms Act against the accused Md. Umar and Md. Shakeel and further under Section 325 of Indian Penal Code against Md. Umar. They pleaded not guilty and claimed to be tried.
7. Notably, accused Md. Rabban has died. So, the proceeding against him was dropped by the learned Trial Court.
8. Defense of accused was total denial of the prosecution case. Further defense of the appellants is that the informant Md. Kamalludin and the witnesses of this case had assaulted to accused Md. Rabban, his wife Bibi Alima Khatoon and his son Abdul Bassar on the same day at about 8:30 AM. On the information of Bibi Alima Khatoon, a case has also been registered against the informant of this case, Md. Kamalludin and 8 others. In this they were convicted by the Trial Court.
9. Altogether 13 PWs have been examined, namely, PW-1. Md. Zafar, PW-2. Md. Shaukat, PW-3. Bino Yadav, PW-4. Md. Kamaluddin, PW-5. Md. Daud, PW-6. Dr. Anuplal Choudhary, PW-7. Dr. Bhartendu, PW-8. Gopal Sharma (I.O), PW-9. Md. Makbool Ahamad, PW-10. Abu Bakar Hussain, PW-11 Jagdish Choudhari, PW-12 Bhola Prasad and PW-13 Md. Manzoor and the documentary evidence also adduced on behalf of the prosecution.
10. On behalf of the defence, one DW, namel
The judgment establishes that a conviction for grievous hurt can be upheld even when intent to kill is not proven, and that the Probation of Offenders Act can be applied based on the circumstances su....
The court upheld the conviction under IPC Sections 341, 323, and 325, affirming the trial court's findings based on consistent witness testimonies and corroborating medical evidence.
The prosecution failed to prove the charges of attempted murder and grievous hurt due to lack of evidence regarding intent and the nature of injuries.
The presumption of innocence is reinforced in cases of acquittal, and appellate courts may only overturn acquittals upon finding that guilt is proven beyond reasonable doubt.
The main legal point established in the judgment is the requirement for the prosecution to substantiate charges and provide corroborating evidence to support the case against the accused.
The testimony of family members is credible and should not be dismissed solely due to their relationship with the victim, especially in the absence of independent witnesses.
The prosecution failed to prove the charge under Section 307 IPC due to the nature of injuries being simple, leading to the setting aside of the conviction and acknowledgment of a valid compromise.
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