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2012 DIGILAW 1058 (JHR)

Jhaban Marandi v. State of Bihar

2012-07-26

H.C.MISHRA

body2012
ORDER By the Court.-Heard learned counsel for the petitioners and learned counsel for the State. No one has appeared for the apposite party No. 2 complainant, who was noticed in the case and the notice was validly served at the admission stage. 2. The petitioners have challenged that judgment dated 23rd December, 1997 passed by the learned 1st Additional Sessions Judge, Godda, in Cr. Appeal No. 265 of 1983/08 of 1990 whereby, the judgment of the conviction and sentence dated 22.9.1983 for the offence under Sections 379/144 of the Indian Penal Code, passed by Sri B.K. Choudhary, learned Judicial Magistrate, 1st Class, Godda, in PCR Case No. 431 of 1980/TR No. 961 of 1983 was upheld by the learned Appellate Court below. 3. It appears that the petitioner had been made accused in PCR Case No. 431 of 1980 on the allegation that the petitioners had harvested away the paddy crop from land belonging to the complainant. In course of the trial, the complainant had adduced evidence in support of his case. It appears from the impugned judgment that even though the case of the petitioners was that the land was cultivated by these petitioners, but no defence evidence was adduced to show that the land belonged to the defence side. The trial Court below, upon appreciation of the evidence brought on record, found the petitioners and one co-accused guilty for the offence under Sections 379/144 of the Indian Penal Code and convicted them for the same and upon hearing on the point of sentence the convicted accused persons were directed to undergo RI for six months each for the offence under Section 379 of the Indian Penal Code. No separate sentence was pronounced for the offence under Section 144 of the Indian Penal Code. The appellate Court below upheld the judgment of conviction and Order of sentence dated 22.9.1983 passed by the learned Judicial Magistrate, Godda, in PCR Case No. 431 of 1980/TR No. 961 of 1983, by judgment dated 23.12.1997 passed by the learned 1st Additional Sessions Judge, Godda, in Cr. Appeal No. 265 of 1983/08 of 1990. 4. Upon going through the judgments passed by the Courts below, I find that there was nothing on the record to show that the petitioners were not the first offenders. 5. Appeal No. 265 of 1983/08 of 1990. 4. Upon going through the judgments passed by the Courts below, I find that there was nothing on the record to show that the petitioners were not the first offenders. 5. Learned counsel for the petitioners submitted that the impugned judgments passed by the Courts below are absolutely illegal and the same cannot be sustained in the eyes of law. It has also been submitted that the petitioners were claiming the land to be their own and had claimed in the Court below that they had cultivated the land in question and, accordingly, in any event the petitioners ought to have been given the benefit of doubt and ought to have been acquitted. 6. Learned counsel for the State, on the other hand, submits that there is no illegality in the impugned judgment. 7. After having heard both the learned counsels for both the parties and upon going through the record, I find that even though the petitioners claimed to have cultivated the land, but no evidence was brought on record by the petitioners to show that the land in question belonged to the petitioners. In my considered view, the Court below has rightly convicted the petitioners for the offence under Section 379 of the Indian Penal Code in view of the evidence brought on record. However, the conviction for the offence only against the three accused persons cannot be sustained in the eyes of law. I am also of the considered view that as there was nothing on the record to show that the petitioners were not the first offenders, the petitioners ought to have been given the benefit of Section 360 of the Cr PC. 8. Since the case is very old one, in my considered view the ends of justice would be met if the petitioners are released after due admonition. Accordingly, the conviction of the petitioners for the offence under Section 144 of the IPC, and their sentence passed by the Courts below, are hereby, set aside and the petitioners are directed to be released after due admonition. 9. The petitioners are directed to appear in the Court below within a period of two months from today for receiving the admonition and they shall be released after due admonition. 9. The petitioners are directed to appear in the Court below within a period of two months from today for receiving the admonition and they shall be released after due admonition. If the petitioners fail to appear in the Court below within the prescribed period, the Court below shall issue process compelling the attendance of the petitioners and they shall be released after due admonition and shall also be discharged from the liabilities of their respective bail bond after getting the admonition. 10. Accordingly, this revision application stands dismissed of with the modifications as above. Let the Lower Court Records be sent back forthwith. Revision dismissed.