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2023 DIGILAW 767 (JHR)

Krishna Baitha v. State of Jharkhand

2023-06-15

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 04.08.2004, passed by the learned Additional Sessions Judge-cum-Fast Track Court-IV, Garhwa, in Sessions Trial No. 343 of 1998, whereby the appellant was convicted for the offences punishable under sections 341 IPC and sentenced to undergo Simple Imprisonment for 6 months, under Section 354 IPC for one year R.I. under section 307 IPC to undergo R.I. for 7 years and to pay a fine of Rs. 1000/- and in default, to suffer S.I. for one year and under section 27 of the Arms Act for 3 year R.I. and to pay a fine of Rs. 500/- and in default to suffer S.I. for six months, all the sentences shall run concurrently. 3. The prosecution case in brief is that on 18.9.97 at 2 P.M. the informant along with his wife had gone to Garda Jungle where Krishna Baitha came armed with Bhartuwa gun and asked them as to why did they cut forest wood without permission whereupon wife of the informant begged and apologized for the fault upon which Krishna Baitha asked the informant’s wife to have sexual intercourse with him, otherwise he would shoot both of them. In the meantime one co-villager namely, Sohar Mahra arrived, who after, learning the entire story asked the informant’s wife to go to home with the woods and thereafter he along with informant went to the jungle and while they were returning with the bundle of woods, when they reached near, Ladduwa river, Krishna Baitha wrongfully restrained them and threatened to shoot, whereupon the informant fled away. When the wife of informant reached her house she complained that, while she was crossing the Ladduwa river Krishna Baitha molested her, whereupon hearing her hulla shepherds came there, seeing which Krishna Baitha fled away. When the wife of informant reached her house she complained that, while she was crossing the Ladduwa river Krishna Baitha molested her, whereupon hearing her hulla shepherds came there, seeing which Krishna Baitha fled away. Thereafter, it is alleged that on 19.9.97 while the informant was returning with his bundle of woods Krishna Baitha fired upon him with his Bhartuwa gun, which caused injury near abdomen and left elbow, then the informant brought Krishna Baitha to village Mimiya and narrated the story to Gul Mohamad (P.W7- tendered), Muneshwar Chowdary (not examined) and Munshi Mahra (acquitted) then Munshi Mahra took Krishna Baitha along with his gun and assured to produce the same before the administration, but the informant latter came to know that the said Munshi Mahra has released Krishna Baitha but retained his gun. 4. Learned senior counsel for the appellant submits that the I.O. has not been examined in this case. He further submits that out of 7 PWs. examined, 2 are informant and his wife who are highly interested witnesses. So far PW-2 is concerned he has not stated about firing although he claims to be an eye witness. He further submits that the seizure witnesses have turned hostile whereas independent witnesses i.e. PW-7 has been tendered. As a matter of fact, except the informant, none of the witnesses have stated about firing. He submits that no TIP done even though the witnesses have claimed to identify upon seeing. He submits that the Doctor who examined injured has found simple injury and there is no any ballistic report/sergeant major report with regard to the working/non-working condition of the alleged weapon. He lastly submits that co-accused Munshi Mahra has been acquitted. Learned Counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 1997 and the appellant has suffered the mental agony due to ongoing litigation and looking to the overall facts and circumstances of the case, this Court may kindly, at least, modify the sentence for the period already undergone as appellant is middle aged person and he also remained in custody for 755 days and never misused the privilege of bail and further the appellant is having no criminal antecedent. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedents of the appellant. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that out of the three seizure list witnesses two of them (PW-5 and 6) have been declared hostile and the third seizure list witness (PW-2) in Para 16 has deposed in his cross examination that he has not read the seizure report paper prepared by the police, as such it casts a doubt upon the seizure itself. It further transpires that the prosecution has failed to bring any ballistic report/sergeant major report on record with regard to working/non-working condition of alleged weapon. As such conviction under section 27 of the Arms Act is not sustainable and thus the same is set aside. So far as conviction under section 307 is concerned, it transpires from the deposition of CW-1 doctor who examined the injured and found that injuries were simple in nature and it was not sufficient to cause death, as such I hold that conviction under section 307 IPC should be converted in section 323 IPC, inasmuch as, injury is admitted. Ordered accordingly. The appellant is hereby convicted and sentenced for a period of 1 year. 7. So far as conviction under sections 341 and 354 IPC is concerned, prosecution has considerably proved the same and is, hereby, sustained. 8. Now coming to the alternative argument of learned counsel for the appellant with regard to sentence awarded to him; this Court is of the view that at this stage remitting the appellant to the rigors of imprisonment at this juncture of his life as he is now a middle aged person, would not serve the ends of justice since no motive or element of planning has been proved in the instant case and admittedly the appellant remained in custody for 755 days. 9. 9. Thus, on point of sentence, looking to the entire facts and circumstances of the case and also the fact that the alleged incident took place in the year 1997 and about 26 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the appellant also remained in jail for about 755 days and he has never misused the privilege of bail and now he is not involved in any criminal activities; thus, he has a chance to reform. 10. Taking into consideration of mitigating circumstances, I am of considered view that without interfering with the judgment of conviction, the sentence ought to be modified to the extent that the appellant shall be released for the period already undergone. 11. Ordered accordingly. 12. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal stands disposed of. 13. The appellant shall be discharged from the liability of his bail bond. 14. Let a copy of this order be communicated to the learned trial Court and also to the appellant through the officer-in-charge of concerned police station. 15. Let the lower court record be sent to the court concerned forthwith.