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2021 DIGILAW 619 (JHR)

Sanjay Kumar Deo v. State of Jharkhand

2021-08-11

ANUBHA RAWAT CHOUDHARY

body2021
JUDGMENT : Heard Mr. A. K. Sahani, learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Shekhar Sinha, learned A.P.P. appearing on behalf of the opposite party- State. 3. The present petition has been filed challenging the correctness of the judgment dated 30.07.2012 passed in Criminal Appeal No. 51 of 2010 by the learned Sessions Judge, Bokaro whereby the judgment of conviction of the petitioners for offence under Sections 323 and 341 of Indian Penal Code and the order of sentence of six months Simple Imprisonment for offence under Section 323 of Indian Penal Code and 15 days Simple Imprisonment for offence under Section 341 of Indian Penal Code dated 03.07.2010 passed in G.R. Case No. 454 of 1998/T.R. No. 47 of 2010 passed by learned S.D.J.M., Bermo at Tenughat, has been upheld. Arguments of the petitioners 4. Learned counsel for the petitioners submits that the petitioners though charged under Sections 323, 324/34 and 341 of the Indian Penal Code, were convicted for the offence under Sections 323 and 341 of the Indian Penal Code and have been sentenced for six months simple imprisonment for offence under Section 323 of Indian Penal Code and 15 days simple imprisonment for the offence under Section 341 of the Indian Penal Code. Learned counsel submits that neither any doctor has been examined nor injury report has been proved. He has also submitted that there was a counter-case being Dugda Thana Case No. 22/1998 (Exhibit-A). Learned counsel submits that there was land dispute between the parties. Learned counsel further submits that the petitioners have remained in custody for the period from 28.09.2012 to 03.10.2012 during the pendency of present revision application and a few days must have been taken by them to furnish the bail bond before the learned court below pursuant to the order of bail passed by this court. Learned counsel submits that the incident in the present case is dated 29.06.1998 and more than 23 years have elapsed from the date of occurrence. Learned counsel submits that considering the facts and circumstances of this case, the sentence of the petitioners may be modified and some fine amount may be imposed. Arguments of the State 5. Learned counsel for the State Mr. Learned counsel submits that considering the facts and circumstances of this case, the sentence of the petitioners may be modified and some fine amount may be imposed. Arguments of the State 5. Learned counsel for the State Mr. Shekhar Sinha, while opposing the prayer, has submitted that there are consistent evidences on record and concurrent findings recorded by the learned courts below and accordingly there is no scope for interference so far as the conviction of the petitioners is concerned. While arguing on the point of sentence, learned counsel has submitted that if this court is inclined to modify the sentence of the petitioners, then appropriate fine amount/victim compensation may be awarded and the same may be remitted to the victim after due identification. During the course of argument, it is not in dispute that there is no minimum sentence as such prescribed under the provisions of Sections 323 and 341 of the Indian Penal Code. Findings of this Court 6. The prosecution was launched by a written report of Lalita Devi on 29.06.1998 that she had gone to her field for sowing seeds along with her brother-in-law Sudarshan Nath Deo. As soon as her brother-in-law started sowing operation, the petitioners came and assaulted him. It has been alleged that petitioner no. 1 gave tangi blow to her brother-in-law and the petitioner no. 2 assaulted him with lathi and caused grievous hurt to him. On raising alarm, the villagers came to their rescue. On the basis of written report, Dugda P.S. Case No. 21 of 1998 was registered under Sections 341, 323 and 324 read with Section 34 of Indian Penal Code against both the petitioners. 7. Police, on investigation, found the case true and submitted charge-sheet against both of them and after cognizance, charges were framed for offence under the aforesaid sections. 8. Altogether, four witnesses were examined on behalf of the prosecution and the written report was exhibited and marked as Exhibit-1. 9. P.W. 3 – informant of the case, has fully supported the prosecution case and she has stated that the incident took place at 07.30 in the morning. She had gone to sow seed in the field along with her brother-in-law. The petitioners came there and they started assaulting her brother-in-law. The petitioner no. 1 gave tangi blow and petitioner no. 2 gave blow with lathi. She had gone to sow seed in the field along with her brother-in-law. The petitioners came there and they started assaulting her brother-in-law. The petitioner no. 1 gave tangi blow and petitioner no. 2 gave blow with lathi. Upon raising alarm, two persons namely Jhalu Ravidas (P.W. 1) and Jaleshwar Ravidas (P.W. 2) and others came there. She has stated that the land in question was purchased by her. She also admitted that the petitioners had instituted a case against them with regard to the incident that took place on that day. Thus, P.W.1 has fully supported the prosecution case and was duly cross-examined by the defence. 10. P.W. 4 is the injured witness who has also fully supported the prosecution case and has clearly stated that the petitioners came to the place of occurrence and started assaulting him. Petitioner no. 1 assaulted with tangi and petitioner no. 2 assaulted with lathi and consequently, he sustained wound in his right arm. During his cross-examination, he denied the suggestion that the informant party were the aggressors and had gone to forcibly occupy the land and when this was opposed by the petitioners, then Sanjay Kumar Deo i.e. the petitioner no. 1 was assaulted by this witness with lathi and axe. 11. P.W. 2 has supported the prosecution case and has stated that he saw bleeding injury on the head of the brother-in-law of the informant, but he did not see the incident and heard that the petitioners had inflicted the bleeding injury upon the victim P.W. 4. The learned court below found that he is not the direct witness to the occurrence and no importance could be attached to his evidence. 12. So far as P.W. 1 is concerned, he has stated that while going to his duty, when he reached railway crossing, he saw that petitioners had inflicted bleeding injury on the head of the victim (P.W. 4) and both of them assaulted and injured the victim with lathi. 13. After prosecution, the statement of the accused persons was recorded under Section 313 of Code of Criminal Procedure. The defence was in total denial and their specific case was that the prosecution party were the aggressors and had assaulted them for which another case was lodged by them. 14. The defence also examined one witness as D.W. 1. 13. After prosecution, the statement of the accused persons was recorded under Section 313 of Code of Criminal Procedure. The defence was in total denial and their specific case was that the prosecution party were the aggressors and had assaulted them for which another case was lodged by them. 14. The defence also examined one witness as D.W. 1. The defence had exhibited document relating to counter-case being written report of Dugda P.S. Case No. 22 of 1998, which was marked as Exhibit-A and it was also the specific case of the defence that there was bonafide land dispute between the parties. 15. The learned trial court, after considering the evidences on record, found consistent evidence from the side of the prosecution in connection with time, place and manner of occurrence and found that the witnesses have found the victim in injured condition at the place of occurrence. Admittedly, there was no injury report on record and under such circumstances, the learned trial court convicted the petitioners for offence under Sections 323 and 341 of Indian Penal Code, but acquitted them for offence under Sections 324/34 and sentenced them accordingly. The learned trial court, while considering the sentence, also recorded that the present offence is the first offence of the petitioners and there is no previous conviction of the petitioners. 16. The learned appellate court, upon considering the evidences on record, recorded its finding at para 9 as follows: “9. The F.I.R. in this case has been lodged promptly without any delay. The incidence took place on 29.06.98 at 07.30 am and on the same day, at 2:00 p.m., the case was lodged. Prompt institution of a case without any delay rules out to a large extent the possibility of after thought in the first written report. P.W. – 4 is the injured and PW-3 is the informant. Both these witnesses have given a consistent account regarding the incidence. The defence has failed to elicit any contradictions in their account and I find that reliance can be placed on their account. Minor inconsistencies that has been appeared in the deposition of PW-1 and 2 do not effect the credibility of these two witnesses. Both these witnesses have given a consistent account regarding the incidence. The defence has failed to elicit any contradictions in their account and I find that reliance can be placed on their account. Minor inconsistencies that has been appeared in the deposition of PW-1 and 2 do not effect the credibility of these two witnesses. It is settled law that there is bound to be some inconsistencies in the account of witnesses, but, all the inconsistencies are not to be regarded as contradiction unless, it goes to the root and foundation of the prosecution evidence. The very fact that the defence has taken the plea of lodging a case against the prosecution party arising out of the same incidence goes to admit that the incidence did place. I, therefore, find that the prosecution has succeeded to prove its case beyond the shadow of reasonable doubts against the appellants. Although, it has been stated that there was bonafide land dispute for the suit land, but no evidence has been led to show that the accused had a colour of right over the suit property. Under the circumstances, the plea of earlier land dispute is not tenable.” 17. This Court finds that the learned courts below have convicted the petitioners on the basis of consistent evidence on record and there has been concurrent findings of both the learned courts below. This Court also finds that not only the victim as well as the informant was examined, but even eyewitness of the occurrence i.e. P.W. 1 was examined who have fully supported the prosecution case. 18. Considering the concurrent finding of record based on evidence, this Court is not inclined to interfere with the conviction of the petitioners for offence under Sections 323 and 341 of Indian Penal Code in revisional jurisdiction and accordingly, the conviction of the petitioners is upheld. 19. So far as the sentence is concerned, the learned counsel for the petitioners has specifically submitted that the incident is of 29.06.1998 and it also appears from the records that there was case and counter-case in connection with the same incident and more than 23 years have elapsed from the date of incident and the petitioners have remained in custody during the pendency of this revision application from 28.09.2012 to 03.10.2012 and a few days must have been taken by the petitioners to furnish bail bonds before the learned court below. Thus, the petitioners have faced the criminal case for more than 23 years and long time has elapsed from the date of incident. This Court also finds that under the aforesaid sections, there is no minimum sentence as such prescribed. 20. Considering the facts and circumstances of this case, the sentence of the petitioners is fit to be modified to secure the ends of justice. Accordingly, sentence of the petitioners is modified and limited to the period already undergone by them in custody with fine amount of Rs. 1,000/- each for offence under Section 323 of Indian Penal Code and fine amount of Rs.500/- each for offence under Section 341 of Indian Penal Code. This Court also directs the petitioners to deposit an amount of Rs. 7,500/- each as victim compensation for the victim of the offence - P.W-4. 21. The fine amount as well as the amount of victim compensation is directed to be deposited before the learned court below by the petitioners within a period of two months from the date of communication of this order to the learned court below. If the aforesaid amount is not deposited within the said period, the bail bonds furnished by the petitioners will be cancelled and the petitioners would serve the sentence already imposed by the learned court below. 22. If the fine amount as well as the amount of victim compensation is deposited as per aforesaid time-frame, the bailors will be discharged of their liability under the bail bond. 23. The amount of victim compensation as aforesaid, is directed to be immediately disbursed to the victim –P.W. 4, after due identification. 24. This petition is disposed of with aforesaid modification of sentence. 25. Pending interlocutory applications, if any, are closed. 26. Let the Lower Court Records be immediately sent back to the court concerned. 27. Let a copy of this order be communicated to the learned court below through ‘FAX’.