Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 60 (JHR)

Mustakim Ansari v. State of Jharkhand

2023-01-18

NAVNEET KUMAR

body2023
JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 20.12.2010 and order of sentenced dated 23.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Garhwa, in S.T. No. 75 of 2009 in connection with Garhwa P.S. Case no. 136/2008 corresponding to G.R. Case no. 619/2008, Garhwa, at Jharkhand whereby and where under the sole appellant has been convicted for the offence punishable under section 304 part II of IPC and sentenced to undergo RI for 05 years. 2. The prosecution case arose in the wake of written report of informant given to the Officer-In-charge Garhwa on 29.05.2008. the prosecution story is that on 29.05.2008 at about 8-9 am informant received information from the villagers of Dhonti that Irfan aged about 1 ½ years, the son of his daughter Jaibun Bibi has been thrown on the ground by Mustakim of village Dhonti on the dispute of taking water from the hand pump. It was further stated that said Irfan was injured and got fainted. On this information, the informant proceeded from his home in village Jata to the house of her daughter situated in village Dhonti. Further stated he reached house of his daughter at 11.00 am, there he found his grandson unconscious. Then he inquired from his granddaughter (Natini) Ruksana Khatun, who told that she had gone to take water from hand pump with Irfan. Mustakim was present there who picked up Irfan and threw him on the ground so that he became unconscious. Informant further stated that thereafter he was bringing Irfan for treatment to Garhwa hospital with Ruksana Khatun, when they reached near Karamdih his aforesaid grand son died. Further stated that reason behind the occurrence was that on 22.05.2008 Mustakin and Mosaheb of Dhonti had beaten his daughter Jaibun Bibi by stick for which Jaibun filed case in the police station, therefore, he was angry. Further stated Jaibun Bibi was admitted in hospital from 22.05.2008 till 28.05 2008. He had brought her to his home yesterday. In absence of mother, Mustakin had thrown his grandson so that he died. The informant prayed for necessary legal action. On the basis of said written report Garhwa P.S. case No. 136/08 dated 29.05.2008 u/s 304 IPC got registered against accused appellant at 13.45 hours. A.S.I. Ram Pravesh Singh was given charge of investigation. In absence of mother, Mustakin had thrown his grandson so that he died. The informant prayed for necessary legal action. On the basis of said written report Garhwa P.S. case No. 136/08 dated 29.05.2008 u/s 304 IPC got registered against accused appellant at 13.45 hours. A.S.I. Ram Pravesh Singh was given charge of investigation. Police investigated the case and filed charge sheet u/s 302 IPC against the accused in the court of C.J.M., Grahwa. The learned Magistrate vide his order date 23.01.2009 took cognizance of the offence u/s 302 of IPC against the accused appellant and thereafter committed the case to the Court of Sessions vide his order dated 05.02.2009. The learned Sessions Judge transferred the record to the learned Additional Sessions Judge, F.T.C. (I) Garhwa. It further appears that on 16.07.2009 charge u/s 302 of IPC was framed and explained to the accused after hearing the defence and prosecution to which he pleaded not guilty and claimed to be tried. 3. 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. 4. Heard Mr. A.K. Kashyap, the learned Sr. Counsel for the appellant and Mr. Gautam Rakesh, the learned Addl. P.P. for the State. Arguments advanced on behalf of the appellant 5. At the outset it is submitted on behalf of the appellant that the appellant does not want to argue this case on merit and hence he confined his argument only on the point of sentence. It has been pointed out that occurrence has taken place as far back as in the year 29.05.2008 and the appellant has been convicted for the offence punishable u/s 304 part II of IPC. It has been pointed that the appellant has already remained in jail for more than 2 years one months in this case and as such almost half of the sentence has already been served by the appellant. Further, it has also been pointed out that over the efflux of time the appellant has reached to his middle age and there is nothing on record about his criminal antecedent. Further, it has also been pointed out that over the efflux of time the appellant has reached to his middle age and there is nothing on record about his criminal antecedent. Further it is also submitted that the appellant is also ready to give the compensation to the mother of the victim and in this view of the matter it is urged on behalf of the appellant that let the order of sentence awarded by the learned court below be altered for the period of sentence of imprisonment already undergone by him and further let a reasonable amount of fine be imposed by way of compensation in order to give it to the mother of the deceased child, the victim, P.W. 2: Jaibun Bibi, w/o Sri Asmudin Ansari, village Dhonti, P.S.- Garhwa, Distt.: Garhwa. Arguments advanced on behalf of the State 6. On the other hand, learned Addl.P.P. appearing for the State opposed the contentions raised on behalf of the appellant and submitted that in view of the submission advanced on behalf of the appellant, let the conviction of the appellant be upheld for the offence u/s 304 part II of the IPC and under the circumstances of the case a suitable order of sentenced may be passed. Appraisal and Findings 7. Having heard the parties, perused the record of this case including the Lower Court Record. 8. It is found that the appellant has been convicted for the offence punishable u/s 304 part II of IPC. It is manifest from the record that the occurrence has taken place as far back as in the year 29.05.2008 about 14 years ago and from the record it also appears that the sole appellant over the efflux of time has reached to his middle age and he is ready to compensate the victim. Further it is also found that the sole appellant has already served the sentence of more than 2 years one month and i.e. about half of the sentence has already been served by him. 9. In view of these mitigating factors, this Court finds that it is just and fair to alter the order of sentence by upholding the judgment of conviction punishable u/s 304 part II of IPC. 10. 9. In view of these mitigating factors, this Court finds that it is just and fair to alter the order of sentence by upholding the judgment of conviction punishable u/s 304 part II of IPC. 10. In the backdrop this Court upholds the judgment of conviction dated 20.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Garhwa, in S.T. No. 75 of 2009 in connection with Garhwa P.S. Case no. 136/2008 corresponding to G.R. Case no. 619/2008, Garhwa, at Jharkhand, for the offence punishable u/s 304 part II of IPC and set aside the order of sentenced dated 23.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Garhwa, in S.T. No. 75 of 2009 against the accused appellant and further this Court alters the sentence for the period of imprisonment already undergone by him and further a sentence of fine to sum of Rs. 25,000/-(Rs. Twenty Five Thousand) is imposed by way of compensation in order to give it to the mother of deceased child, the victim P.W. 2 Jaibun Bibi 11. Consequently, the appellant is sentenced to the imprisonment for a term of the period already undergone by him and the appellant is further sentenced to fine by way of compensation to a sum of Rs. 25000/- (Rupees Twenty Five Thousands only) by way of compensation, under section 304 Part-II of IPC, in order to give it to the mother of deceased child, the victim (P.W. 2) Jaibun Bibi w/o Sri Asmudin Ansari, village Dhonti, P.S. - Garhwa, Distt.: Garhwa. 12. Since the appellant is on bail, he is given four months’ time from the date of this judgment to deposit the fine amount by way of compensation to a sum of Rs. 25,000/- (Rupees Twenty Five Thousands only) as awarded to him to be given to P.W. 2- Jaibun Bibi. 13. In case of default of payment of fine amount of Rs. 25000/- (Rupees Twenty Five Thousands only) by way compensation in order to give it to the mother of the deceased child, the victim Jaibun Bibi (P.W.-2) so awarded by this Court within the stipulated period of time, the appellant will undergo rigorous imprisonment for a period of two years. In case of default of payment of fine amount of Rs. 25000/- (Rupees Twenty Five Thousands only) by way compensation in order to give it to the mother of the deceased child, the victim Jaibun Bibi (P.W.-2) so awarded by this Court within the stipulated period of time, the appellant will undergo rigorous imprisonment for a period of two years. The learned trial court is directed to ensure that if the said fine amount is deposited within the stipulated period of time, he will be discharged from the liabilities of bail bonds and if the same is not deposited by the appellant within the stipulated period of time, the appellant will serve the sentence in case of default of payment of fine so awarded, and the learned trial court, by taking all necessary measures as per the provisions of law, shall ensure that the appellant serves the sentence of imprisonment in case of default of payment of fine. 14. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and he shall be discharged from the liabilities of bail bonds accordingly. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice will be sent to the mother of the deceased child, the victim P.W. 2 Jaibun Bibi and on her appearance, the said fine amount, if so deposited by the appellant, shall be disbursed to her accordingly. In case, if the P.W. 2 is not traceable or not available or not found at the given address, or does not appear before the Court below after the notice, the same shall be disbursed either to the close or near relatives or kith and kin of the said victim P.W.-2 Jaibun Bibi, as the concerned learned trial court may deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Garhwa, if required. 15. Accordingly, the appeal is dismissed with modification in the order of sentence as above. 16. 15. Accordingly, the appeal is dismissed with modification in the order of sentence as above. 16. Let a copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in letter and spirit.