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2017 DIGILAW 1283 (JHR)

Utra Bouri v. State of Jharkhand

2017-07-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard the parties. 2. This application is directed against the judgment dated 25.01.2005, passed by the learned Additional Sessions Judge-IV (Fast Track Court), Jamtara in Cr. Appeal No. 19 of 1987, whereby and whereunder, the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st class, Jamtara on 22.12.1986 in G.R. Case No. 260 of 1983, by which the petitioners were found guilty for the offence under Sections 457 and 511 of the Indian Penal Code and were sentenced to undergo R.I. of one year and subsequently modified by the learned appellate Court to six months, has been affirmed. 3. It has been submitted by the learned counsel for the petitioners that except PW 12, there are no other eye-witnesses to the occurrence. It has further been submitted that most of the witnesses are formal witnesses and some of the witnesses have merely narrated about the incident. It. has also been submitted that admittedly there was enmity between the parties which resulted in false implication of the petitioners. Learned counsel submits that Investigating Officer of the case and doctor have not been examined in this case. Such facts have not been properly appreciated by the learned trial Court while convicting the petitioners and as such judgment of conviction and order of sentence deserves to be set aside. 4. Learned A.P.P. has opposed the prayer made by the learned counsel for the petitioners. 5. The prosecution story in short is that in the midnight on 31.8.1983, the informant had woken up for answering call of nature and after the same he had gone to see his maize plants as he was apprehending that someone may pluck the plant. When he reached near the door of his house, he saw that the gate of Bart was open and three persons were standing there. It is alleged that some persons were committing-burglary in the wall of Golak Bihari and on being questioned the accused persons started pelting stones upon him. It is further alleged that he was assaulted with lathi and all the thieves had managed to flee away. This witness had identified the petitioners. 6. Based on the aforesaid allegations, G.R. Case No. 260 of 1983 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken, charge was framed and trial proceeded. 7. It is further alleged that he was assaulted with lathi and all the thieves had managed to flee away. This witness had identified the petitioners. 6. Based on the aforesaid allegations, G.R. Case No. 260 of 1983 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken, charge was framed and trial proceeded. 7. In course of trial, twelve witnesses were examined on behalf of the prosecution. It appears that PW I-Md. Neyin Khan, PW 2-Gulai Murmu, PW 3-Ramayan Singh, PW 5-Shivnarayan Yadav, PW 7 -Gaya Singh are formal witnesses. The only eye-witness to the occurrence is PW 12-Madhusudan Khan, the informant, who had supported the prosecution case and had stated that the petitioners along with others were committing burglary in the house of PW 4, Golak Bihari Khan and when they were confronted by the informant, he was assaulted by the petitioners resulting in his suffering bleeding injury. This witness had stated that after the incident, they managed to flee away. 8. PW 4-Golak Bihari Khan is the witness whose house was the target. This witness had stated that he had found mark of breaking open of the wall, which supports the version depicted by PW 12. 9. PWs 6, 8, 9, 10 and 11 along with PW 1 had assembled near the place of occurrence after hearing cry of alarm and had seen PW 12 in an injured condition. 10. The evidence of these witnesses corroborates what has been stated by PW 12 with respect to the allegation made against the petitioners in attempting burglary in the house of PW 4. Merely, because the Investigating Officer has not been examined, same is not fatal to the prosecution case. PW 12 had stated about the place of occurrence and marks were also found in the wall, which the petitioners were trying to demolish. No doctor has been examined but the witnesses namely PWs 4, 6, 8, 9 and 10 had stated about the bleeding injury suffered by PW 12. Such circumstances therefore have rightly been considered by the learned trial Court while convicting the petitioners for the offence under Sections 457 and 511 of the Indian Penal Code. Learned appellate Court also on consideration of materials available on record, affirmed the judgment of conviction and order of sentence. 11. Such circumstances therefore have rightly been considered by the learned trial Court while convicting the petitioners for the offence under Sections 457 and 511 of the Indian Penal Code. Learned appellate Court also on consideration of materials available on record, affirmed the judgment of conviction and order of sentence. 11. There being no reasons to conclude otherwise, the judgment dated 25.01.2005, passed by the learned Additional Sessions Judge-IV (Fast Track Court), Jamtara in Cr. Appeal No. 19 of 1987, whereby and whereunder, the judgment and order of conviction passed by the learned Judicial Magistrate, 1st Class, Jamtara on 22.12.1986 in G.R. Case No. 260 of 1983, by which the petitioners were found guilty for the offence under Sections 457 and 511 of the Indian Penal Code and affirmed by the learned appellate Court is hereby sustained. 12. However, with respect to the sentence, which has been imposed upon the petitioners. it appears that petitioners are facing the rigors of prosecution case since 1983. Petitioners have also remained in custody for some time. On consideration of the aforesaid facts coupled with the nature of offence alleged against the petitioners, period of sentence is modified to the period already undergone. 13. This application therefore stands dismissed with the aforesaid modification in sentence.