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2022 DIGILAW 950 (JHR)

Manik Bouri v. State of Jharkhand

2022-07-29

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the judgment of conviction and order of sentence dated 02.11.2004 passed by the learned Addl. Sessions Judge-IV (Fast Track Court) Jamtara in Sessions Case No. 129 of 2002, arising out of Nala P.S. Case No. 41 of 1995 corresponding to G.R. Case No. 137/1995, Jamtara, Jharkhand whereby and where under the accused appellant has been convicted under sections 452 and 323/34 of the Indian Penal Code, 1860 and has been sentenced to undergo Rigorous Imprisonment for 1 (one) year under section 452 of IPC and further sentence for six months rigorous imprisonment u/s 323/34 of IPC and both the sentences were directed to run concurrently. 2. The prosecution story arose in the wake of the fardbeyan of Jiyamuni Mondal (P.W. 5) and the fardbeyan was recorded by Talo Soren, Police Officer at Nala Hospital on 27.03.1995 at 20:00 hours in Nala Government Hospital in the district of Jamtara. In her state ment she stated that at 2 o’clock in the afternoon she was taking lunch when Manik Bouri and Badal Bouri entered her house and abused her and ordered to kill. She got frightened and requested not to assault her. Then altercation took place and then Manik Bouri caught hold of her both hands and Badal Bouri made a stroke from knife (used to cut Tari) by which She received injuries on neck, left ear, and right shoulder and fell on the ground. She lost her sense, but, before that, on raising alarm witnesses Godhar, Sankar, Haru and others came there and saw the occurrence. Thereafter, both the accused persons fled away. The cause of occurrence is said to be of earlier occurrence which had taken place one month before when the accused persons came to her house and asked for Daru (wine), but, she refused and told that she did not sell wine (Daru) then both the accused persons threatened to kill her. 3. On the basis of aforesaid fardbeyan, Officer-in-Charge Nala P.S. registered the case as P.S. Case No. 41 of 1995 u/s 341, 448, 324,307/34 of IPC. After completion of investigation police submitted charge sheet being Charge-Sheet No. 32/1995 dated 31.07.1995 u/s 341, 448, 324, 307/34 of IPC against the accused persons (there were two accused persons one of whom Badal Bouri was declared absconder in this case vide order dated 25.06.2003 by the learned court below). After completion of investigation police submitted charge sheet being Charge-Sheet No. 32/1995 dated 31.07.1995 u/s 341, 448, 324, 307/34 of IPC against the accused persons (there were two accused persons one of whom Badal Bouri was declared absconder in this case vide order dated 25.06.2003 by the learned court below). Cognizance was taken on 30.08.1995 and the case was committed to the court of sessions on 11.12.1995. 1st Additional Sessions Judge, Dumka framed charge on 5 August 1997 against both the accused (Manik Bouri and Badal Bouri) under sections 452, 341, 307/34 of IPC. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the appellant assisted by Mr. Pankaj Verma, learned Advocate and Mr. V.S. Sahay, learned A.P.P. appearing on behalf of the State. Arguments on behalf of the learned Counsel for the appellant 6. Assailing the impugned judgment of conviction and order of sentence, the learned defence counsel appearing on behalf of the appellant submitted that the learned trial court ignored the vital lacuna in the case of the prosecution that neither the I.O. nor the Doctor has been examined and the appellant has been convicted u/s 323/34 & 452 of IPC. Further, the learned trial court also relied upon the Jiyamuni Mondal (P.W. 5) and other witnesses who are hearsay and tendered witnesses and, therefore, the case of the prosecution has not been substantiated beyond the reasonable doubts and the appeal deserves to be admitted by setting aside the impugned judgment of conviction and order of sentence. Arguments on behalf of the learned A.P.P. for the State 7. Arguments on behalf of the learned A.P.P. for the State 7. On the other hand, the learned A.P.P. for the State vehemently opposed the contentions raised on behalf of the appellant and has submitted that the learned court below has rightly appreciated the evidences of witnesses particularly the victim of the case who has fully supported her version as given in the FIR and also in the subsequent deposition and, therefore, the non-examination of the I.O. and the Doctor has not caused prejudice to the case of the prosecution and the learned trial court has rightly passed the impugned judgment of conviction and order of sentence against the accused appellant for the offence punishable u/s 452 and 323/34 of IPC and, therefore, this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 8. Having heard the parties and perused the materials available on record including the Lower Court Record. 9. In order to substantiate, the charges levelled against the appellant, the prosecution has been able to examine altogether five witnesses:- P.W.-1-Sankar Das P.W.-2 – Gojha @ Nandeswar Rout P.W.-3 -Ghochiram (tendered witness) P.W.-4 – Haradhan Chakraborty (hostile witness) P.W.-5 – Jiyamuni Mondal-Informant cum injured 10. At the outset, from the deposition of the P.W.-5 – Jiyamuni Mondal-informant, who is injured, it is found that she has fully corroborated her version as disclosed in the FIR where she stated that the appellant caught hold her and the accused persons (one of whom was declared absconder and his case was separated) had inflicted injury by hasua on her neck, both the shoulder and on her left ear by which she fell down and lost her conscious. She further stated that she had raised alarm and several villagers had assembled there and one Gojha @ Nandeswar Rout who is P.W. 2, had taken her to hospital on bicycle and she told the occurrence in the hospital. She made her statement recorded before the I/C of police-station, Nala P.S. and thereafter, she had put her thumb impression on her fardbeyan. She had admitted in para 14 that some cases are also pending against her for selling country made liquor and she had gone to jail in some cases. She made her statement recorded before the I/C of police-station, Nala P.S. and thereafter, she had put her thumb impression on her fardbeyan. She had admitted in para 14 that some cases are also pending against her for selling country made liquor and she had gone to jail in some cases. The defence has been taken on behalf of the appellant by bringing on record some of the documents in order to show that she was involved in selling of illicit liquor and the case was pending against her by virtue of Ext. A and Ext. B which is on record. But, all these evidences could not discard the fact that the appellant Manik Bouri and co-accused Badal Bouri assaulted her by which she was injured. The learned trial court has rightly appreciated the deposition of this witnesses and found that she has corroborated her version, but, the offence punishable u/s 452 of IPC House-trespass after preparation for causing hurt, to the victim-P.W.5 by entering into her house is not proved for want of examination of the I.O. and the doctor who are the vital witnesses. The charges of house trespass after preparation to cause hurt, assault or wrongful restraint to the victim P.W.5 is not convincingly substantiated for want of examination of I.O. and Doctor. Neither the injury has been proved by the doctor nor the injury report has been brought on record to corroborate the version of P.W.5 (victim). Therefore, the offence punishable under section 452 of IPC is not proved but the learned trial court has rightly appreciated the version of the prosecutrix victim P.W. 5 in order to substantiate the offences punishable u/s 323/ 34 of IPC. 11. Further, the witnesses, who have been examined on behalf of the prosecution is P.W. 1-Sankar Das, who had stated that Manik Bouri and Badal Bouri after inflicting the injury upon the victim ran away and he had seen that Badal was armed with hasua and there was nothing in the hand of the appellant Manik. This witness had seen the injury and bleeding from the shoulder and neck of the victim and on inquiry she (victim) stated that Manik and Badal had caused injury upon her (victim) and she was treated in the hospital. This witness (P.W.-1) had also supported the case of the prosecution to the extent that that the accused had caused injury upon the victim. This witness (P.W.-1) had also supported the case of the prosecution to the extent that that the accused had caused injury upon the victim. 12. P.W. 2 Ghojha Rout had stated that he was told by her (the victim) that Badal had caused injury on her and he had seen the injury on the neck, ear and shoulder of Jiyamuni Devi. Thus, P.W. 2 Gojha stated that Jiyamuni Devi (P.W.5) told her about the occurrence and, therefore, the version of P.W. 2 is reliable and trustworthy because he came to know about the occurrence form the victim herself. 13. P.W. 3 Gochiram has been tendered. 14. P.W. 4 Haradhan Chakraborty has been declared hostile. 15. In view of the testimonies of the witnesses evaluated in the foregoing paragraphs, it is well founded that the learned trial court has rightly appreciated the evidences of P.W. 5, P.W. 1 and P.W. 2 and the appellant guilty for the offence punishable u/s 323/34 of IPC and convicted therein which deserves to be sustained in the eyes of law, but, so far as the conviction u/s 452 of IPC is concerned, the same is not substantiated for want of examination of the I.O. and the doctor because neither the place of occurrence nor the nature of weapon used in the commission of crime have been brought on record and also no injury report has been brought on record and, therefore, the charge u/s 452 of IPC for committing the offence of House-Trespass after preparation for hurt, assault or wrongful restraint remains uncorroborated and unsubstantiated and, therefore, the judgment of conviction and order of sentence u/s 452 of IPC is bad in law and fit to be set aside. 16. Accordingly, this Court upholds the conviction of the appellant for the offence punishable u/s 323/34 of IPC and sets aside the order of conviction u/s 452 of IPC. So far as the sentence is concerned, learned counsel appearing for the appellant has submitted that the age of the accused appellant was about 45 years at the time of occurrence and further over a period of time he has become about 63 years old. Further, there is nothing on record to show about the criminal history of the appellant. So far as the sentence is concerned, learned counsel appearing for the appellant has submitted that the age of the accused appellant was about 45 years at the time of occurrence and further over a period of time he has become about 63 years old. Further, there is nothing on record to show about the criminal history of the appellant. It is also found that this appellant is suffering from the hardship and misery of criminal prosecution for a long period of time since the time of occurrence which is of the year 1995 i.e. about more than 25 years back. He has also remained in jail custody during the course of trial and, therefore, it is found that the purpose of justice would be served if he is sentenced for a term of the period already undergone by him. 17. Accordingly, this Court imposes sentence of imprisonment to the sole appellant for the period of imprisonment already undergone by him and further imposes a sentence of fine of Rs. 5,000/- (Rupees Five Thousand Only) by way of compensation to be paid to the victim Jiyamuni (P.W. 5) wife of Habu Mondal, resident of Gopalpur, P.S. Nala, District Dumka under sections 323/34 of IPC by setting aside the order of sentence imposed by the learned trial court for the offence punishable u/ss. 323/34 of IPC. 18. Since, the appellant is on bail and, therefore, a time period of four months is given to the appellant from today to make payment of fine of Rs. 5000/-(Rs. Five Thousand Only) by way compensation in order to give it to P.W. 5 through the Nazarath of the concerned Civil Court. 19. It is further directed that in case of default of payment of fine amount of Rs. 5000/-(Rs. Five Thousand Only) by way compensation in order to give it to P.W. 5 as awarded by this Court, the appellant will undergo simple imprisonment for a period of one year. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time, and if the same is not deposited by the appellants within the stipulated period of time, they will serve the sentence as awarded in case of default of payment of fine so awarded, by taking all necessary measures as per the provisions of law. 20. 20. The appellant may be allowed to deposit the said fine amount through the Nazarath of the concerned Civil Court. At the moment he deposits the fine amount he (appellant) shall be released forthwith on deposit of said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. 21. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim/informant (PW-5) and on her appearance the said fine amount, so deposited by the appellant, shall be disbursed to her. In case, if the said victim is not traceable or not available or not found at the given address, the same shall be disbursed to the close or near relatives or kith and kin of the said victim/informant (PW-5) as the concerned learned trial court may deem fit and proper. 22. Accordingly, the appeal is dismissed as above. 23. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and compliance in this regard.