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2017 DIGILAW 476 (JHR)

Bamna Paharia v. State of Jharkhand

2017-03-06

RONGON MUKHOPADHYAY

body2017
JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. Rakesh Kumar, learned counsel for the petitioners and Mr. S.K. Deo, learned A.P.P. appearing on behalf of the State. 2. This application is directed against the judgment dated 15.07.2000 passed by the learned Additional Sessions Judge, Pakur in Cr. Appeal No. 126 of 1992 whereby and whereunder the judgment and order of conviction and sentence passed by the learned Assistant Sessions Judge, Pakur in Sessions Case No. 3/1983 by 147/1983 convicting the petitioners for the offence punishable under Sections 147, 148, 323, 324, 307 and 379 of the IPC and sentencing them accordingly has been affirmed. 3. It has been stated by the learned counsel for the petitioners that all the prosecution witnesses are interested witnesses. It has further been stated that there was a previous enmity existing between the parties. Learned counsel also submits that the injuries which have been suffered by the PWs. 1, 2, 3 and 4 were opined to be simple in nature. In the alternative, an argument has been put forward by the learned counsel for the petitioners that if this Court is not inclined to interfere in the judgment and order of conviction, the period of sentence be suitably modified in view of the fact that the petitioners had remained in custody for more than one and a half year in total and the incident being of the year 1982, the petitioners have already been sufficiently punished on account of long pendency of the case. 4. Learned A.P.P. has opposed the prayer made by the petitioners. 5. It appears from the first information report that on 22.07.1982, when the informant was sleeping in the house, the accused persons variously armed had assaulted the informant. It is alleged that wife of the informant was also assaulted along with other persons. It is further alleged that the cause of the incident is due to fine imposed upon the accused persons by the Panchayat and the accused persons had threatened the informant party of taking revenge for the imposition of fine upon them. 6. It is alleged that wife of the informant was also assaulted along with other persons. It is further alleged that the cause of the incident is due to fine imposed upon the accused persons by the Panchayat and the accused persons had threatened the informant party of taking revenge for the imposition of fine upon them. 6. On the basis of the aforesaid allegation, G.R. Case No. 283 of 1982 had been instituted in which after investigation, charge-sheet was submitted against the petitioners and pursuant to taking of cognizance, the case was committed to the Court of learned Assistant Sessions Judge, Pakur where the charge was framed against the accused persons for the offence punishable under Sections 147, 148, 307 and 379 of the IPC. Since the prosecution was able to establish its case beyond all reasonable doubts, the petitioners were convicted under the said sections and were sentenced to undergo rigorous imprisonment for various terms and maximum sentence being five years of rigorous imprisonment for the offence punishable under Section 307 of the IPC. 7. The appeal which was preferred by the petitioners being Cr. Appeal No. 126/91 by 62/93 was dismissed by the learned Additional District and Sessions Judge, Pakur on 15.07.2000. In course of trial, six witnesses were examined on behalf of the prosecution. PW-1 Budhu Paharia is the informant who had stated that when he was sleeping in his house, all the accused persons variously armed had come and assaulted him along with other persons. This witness has further stated that the accused persons had taken away the ornaments from his house. PWs. 2, 3 and 4 are the injured eye-witnesses who have also categorically stated about the manner of assault as well as the genesis of the occurrence and the role played by the petitioners in committing assault upon them as well as the informant PW-1. PW-6 is the doctor who had examined PWs. 1, 2, 3 and 4 and had opined that the injuries found on the person of the injured eye-witnesses were simple in nature. The evidence of the doctor, therefore, sufficiently corroborates the evidence of PWs. 1, 2, 3 and 4 with respect to the assault committed upon them by the petitioners. PW-6 is the doctor who had examined PWs. 1, 2, 3 and 4 and had opined that the injuries found on the person of the injured eye-witnesses were simple in nature. The evidence of the doctor, therefore, sufficiently corroborates the evidence of PWs. 1, 2, 3 and 4 with respect to the assault committed upon them by the petitioners. Although, in the trial the defence had taken specific plea that the matter has been compromised between the accused persons and the informant but several witnesses have deposed otherwise inasmuch as the accused persons were willing to get the matter compromised but the refusal was made by PW-1 to compromise the matter. The evidence which has been brought forward by the prosecution thus leads to a conclusion that all the petitioners armed with deadly weapons had committed assault upon PWs. 1, 2, 3 and 4 who all had suffered injuries on some part of the body which has been corroborated by the doctor PW-6. Non-examination of the Investigating Officer has, not caused prejudice to the defence in view of the consistent evidence of the prosecution witnesses as has been indicated above. 8. Such circumstance, therefore, points to the guilt of the petitioners which has rightly been considered by the learned trial Court before convicting and sentencing them. The learned appellate Court while appreciating the materials available on record has affirmed the judgment and order of conviction passed by the learned trial Court. There being no reason to conclude otherwise the challenge which has been to the judgment and order of conviction is hereby negated. However, with respect to the sentence imposed upon the petitioners it has vehemently been submitted that the petitioners are facing rigours of the prosecution since the, year 1982. 9. It appears that the incident is a fall out of the fine imposed upon the petitioners by the Panchayat and there was a threatening made by the petitioners to some of the injured eye-witnesses for taking retaliatory measures against them. The injuries found on the person of PWs. 1, 2, 3 and 4 have been opined to be simple by the doctor PW-6. The injuries found on the person of PWs. 1, 2, 3 and 4 have been opined to be simple by the doctor PW-6. Since much water has flown from the date of institution of the prosecution case as the proverbial Damocles sword is hanging over the petitioners for last more than three decades and considering the backdrop leading to the incident coupled with the fact that the petitioners have remained in custody for about one and a half year during the trial and after dismissal of the appeal, the period of sentence imposed upon the petitioners deserve to be suitably modified. Accordingly, the period of sentence awarded to the petitioners is modified to the period already undergone by them. 10. This application is dismissed with the aforesaid modification in sentence. Application dismissed.