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2024 DIGILAW 175 (JHR)

Santosh Hazra v. State of Jharkhand

2024-02-19

NAVNEET KUMAR

body2024
JUDGMENT : Navneet Kumar, J. This appeal is directed against the impugned judgment of conviction and order of sentence dated 7th April, 2017, passed by learned District & Additional Sessions Judge-XIII, Dhanbad, in S.T. No. 127/2013, arising out of Govindpur (Barwadda) P.S. Case No.421/2012, corresponding to G.R. No. 3780/2012 and T.R. No.649/2013, whereby and whereunder, the appellants has been convicted for the offence punishable under sections 323/34, 307/34 and 504/34 of the Indian Penal Code and sentenced them to undergo R.I. for six months for the offence punishable under section 323 of IPC, R.I. for one year for offence punishable under section 504 of IPC and R.I. for seven years and fine of Rs.5,000/-each for offence punishable under section 307 of IPC and in default of payment of fine, further directed to undergo R.I. for 6 months and further directed that all the sentences shall run concurrently. 2. The prosecution arose in the wake of written report of the informant Madhav Mishra addressed to the Officer-in-charge, Barwadda P.S. wherein the informant had stated that on 18.9.2012 at about 1.30 P.M., while he along with his wife and two sons were erecting the boundary wall over his plot of land measuring 3.25 kathas, then the accused persons came and asked them to stop the work and it is alleged that they abused them and demanded Rs.5 lacs as Rangdari. When the informant expressed his inability to pay such a huge amount, at the instance of Nandu Hazra, Santosh Hazra assaulted the informant on his head with Gaita, due to which he sustained injuries on his head and fell down. When his wife and children tried to save him, other accused persons namely Doctor Hazra and Baski Hazra assaulted them with rod, due to which they also sustained bleeding injury. Thereafter, it is alleged that the accused persons took away Rs.20,000/-from the pocket of the informant and one mobile. The informant was taken to police station, from where he was sent for treatment to PMCH Hospital. 3. On the basis of the aforesaid written report of the informant Madhav Mishra-PW-4, a formal FIR was drawn vide Govindpur P.S. Case No.421 of 2012 dated 18.09.2012 registered under Sections 341, 323, 324, 307,386 504 and 34 of IPC and the investigation of the case commenced. 4. 3. On the basis of the aforesaid written report of the informant Madhav Mishra-PW-4, a formal FIR was drawn vide Govindpur P.S. Case No.421 of 2012 dated 18.09.2012 registered under Sections 341, 323, 324, 307,386 504 and 34 of IPC and the investigation of the case commenced. 4. After investigation, the charge-sheet was submitted by the I.O. for the offences punishable under Sections 341, 323, 324, 307, 386, 504 and 34 of IPC and after taking cognizance, the case was committed to the Court of Sessions and the learned Additional Sessions Judge-II, Dhanbad had framed the charge against all the charge-sheeted accused appellants for the offences punishable under Sections 341/34, 323/34, 324/34, 307/34, 386/34 & 504/34 on 25.04.2013 and the trial of the case commenced and the learned trial court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence dated 7th April, 2017, which is under challenge vide Cr. Appeal (SJ) No.764 of 2017. 5. Heard Mr. Amit Kumar Das, learned defence counsel appearing on behalf of the appellants and Manoj Kumar Mishra, learned APP appearing on behalf of the State. Arguments advanced on behalf of the appellants 6. At the outset, learned counsel appearing on behalf of the appellants submitted that all the appellants do not want to argue this case on merit of Judgment of conviction and therefore, the argument is confined only on the point of sentence. 7. It is submitted that although the learned trial court framed the charges for the offences punishable under Sections 341/34, 323/34, 324/34, 307/34, 386/34, 504/34 of IPC, but the appellants were convicted for the offences punishable under Sections 323/34, 307/34 and 504 /34 of the IPC and they were acquitted under Sections 341/34, 324/34, 386/34 of IPC and further they were sentenced to undergo six months R.I. under Section 323 of IPC, one year R.I. under Section 504 of IPC and seven years R.I. under Section 307 of IPC and further each of the appellants were directed to pay the sentence of fine of Rs.5,000/-and in case of default of payment of fine, each of the appellants would further directed to undergo R.I. for six months. 8. 8. Further it is submitted that there is dispute between the parties regarding the erecting of the boundary wall as they are neighbours and these appellants have also instituted a case vide Govindpur (Barwadda) P.S. Case No.436/2012 dated 02.10.2012 registered under Sections 147, 148, 149, 447, 323, 500, 384, 504/34 of the IPC and Sections 3/4 of SC/ST (Prevention of Atrocities) Act, but the police after completion of the investigation, submitted the final report thereafter, on the basis of the protest petition, a Complaint Case No. 241 of 2013 was instituted, under which, the concerned learned Court below had taken the cognizance for the offences punishable under sections 323, 341 & 504 of the IPC against the informant of this case, including PW2 and PW4 and as such, there was a case and counter case between both the parties. 9. Further, it has been submitted that the doctor has been examined as PW5, who had examined the three injured persons namely Kundan Kumar Mishra-PW2, Raghunandan Mishra-PW1 and Madhav Mishra-PW4, and the injuries inflicted upon PW1 and PW2 were simple in nature, while the injuries of PW4 has been found grievous in nature with respect to the injuries Nos. (I) and (II) and in absence of any X-ray report, the opinion of the doctor that the injury No.1 is grievous in nature, cannot be substantiated in view of the fact that the injury report of the said Madhav Mishra exhibited as 2/2, whereas it is written that there were 05 injuries and one was lacerated wound and rest of the two were swelling in nature and further the rest two only are the pain and as such in absence of the X-ray report, the opinion of the doctor is not corroborated. 10. Further it has been pointed out that the occurrence is said to have been taken place long back in the year 2012 about 12 years back and over a period time, all these appellants have been suffering the misery and hardship of the criminal prosecution for a long period time. 11. 10. Further it has been pointed out that the occurrence is said to have been taken place long back in the year 2012 about 12 years back and over a period time, all these appellants have been suffering the misery and hardship of the criminal prosecution for a long period time. 11. Further it has been submitted that the appellant No.1 Santosh Hazara has remained in jail for about more than two years, appellant No.2 Baski Nath Hazara has remained in jail for about three months and appellant No.3 Nandu Hazara has remained in jail for about six months and appellant No.4 Doctor Hazara has remained in jail for three months as per the record and there is nothing on record to show about any criminal history against any one of the appellants. 12. Further, it has also been submitted that all the appellants are ready to pay the fine amount by way of compensation in order to give to the injured PW-4 Madhav Mishra and therefore it is prayed that after upholding the judgment of conviction, the order of sentence may be modified to the period already undergone by the appellants and a suitable sentence of fine may be imposed. Arguments advanced on behalf of the State 13. On the other hand, learned APP appearing on behalf of the State opposed the contentions raised on behalf o the appellants and submitted that the learned trial court has rightly convicted all the appellants for the offence punishable under Sections 323/34, 307/34 and 504/34 of IPC and accordingly they were sentenced and therefore there is no legal point to interfere in the impugned judgment of conviction and order of sentence. However, the learned APP did not controvert this fact that there is nothing on record about the criminal history against any one of the appellants and also there is a case and counter case between the parties and the dispute is related on a trivial matter for the construction of the boundary wall as both the parties are neighbor to each other and since the appellants do not want to argue this case on merit and therefore after upholding the judgment of conviction, a suitable order on the point of sentence may be passed in view of the fact that the appellant No.1 Santosh Hazara has remained in jail for about more than two years, appellant No.2 Baski Nath Hazara has remained in jail for about three months and appellant No.3 Nandu Hazara has remained in jail for about six months and appellant No.4 Doctor Hazara has remained in jail for three months. 14. Having heard learned counsels the parties, perused the records of this case including the lower courts records. Appraisal & Findings 15. It is found that all the four appellants have been convicted for the offences punishable under sections 323/34, 307/34 and 504/34 of the Indian Penal Code and sentenced to undergo R.I. for six months for the offence punishable under section 323 of IPC, R.I. for one year for offence punishable under section 504 and R.I. for seven years and fine of Rs.5,000/-each for offence under section 307 of IPC and in default of payment of fine, further directed to undergo R.I. for 6 months. 16. Further it is found that since the appellants do not want to argue this case on merit of the Judgment of conviction and confining their arguments only on the point of sentence. 17. Therefore, this Court upholds the judgment of conviction dated 7th April, 2017 passed by learned District & Additional Sessions Judge-XIII, Dhanbad, in S.T. No. 127/2013, arising out of Govindpur (Barwadda) P.S. Case No.421/2012, corresponding to G.R. No. 3780 of 2012 and T R. No.649/2013. 18. So far as the order of sentence is concerned, it is found that there is a case and counter case between both parties. 18. So far as the order of sentence is concerned, it is found that there is a case and counter case between both parties. The injuries, which are said to have been inflicted upon PW1 and PW2 are simple in nature and so far as the injuries inflicted upon PW4 Madhav Mishra is concerned, it is found that five injuries sustained by him, which are as under: (i) Lacerated wound on left side of parietal occipital region 3”x1/2”x skin deep. (ii) Swelling on left hand 2”x2” (iii) Swelling right forearm 2”x 4” (iv) Pain in left thigh (v) Pain in neck Age of injury within 6 hours Nature of Injury No.(i) & (ii) are grievous in nature and rest are simple in nature, caused by hard & blunt object. From the injuries report, it is found that one was lacerated wound and two of the injuries were swelling in left hand and one on right forearm and rest of the two injures, i.e. pain in left thigh and neck are found simple in nature. Further it is also found that although the doctor has opined about the injury with respect to the lacerated wound on left side of parietal occipital region 3”x1/2”x skin deep are grievous in nature but for want of X-ray report, the same has not been substantiated by the prosecution during the course of the trial and rest of the two injuries were swelling in nature and further the rest two injuries were only the pain. 19. Further it is found that there is nothing on record to show about the criminal history against any one of the appellants. Further it is found that the occurrence had taken place as far back as in the year 2012 about 12 years back and all the appellants have been suffering with the trauma and hardship of the criminal case for a long period of time and in this view of the matter, it is found just and fair to modify the order of sentence passed by the learned court below. 20. 20. Accordingly, the order of sentence dated 7th April, 2017, learned District & Additional Sessions Judge-XIII, Dhanbad, in S.T. No. 127/2013, arising out of Govindpur (Barwadda) P.S. Case No.421/2012, corresponding to G.R. No. 3780 of 2012 and T.R. No.649/2013 is set-aside and the same is modified to the extent that all the appellants are sentenced to imprisonment for the period already undergone by them and further they are sentenced to a fine of Rs.5,000/-to be paid by each of the appellants by way of compensation in order to give to the PW-4 Madhav Mishra and in default of payment of fine, each of the appellants will undergo further R.I. for a period of two years. 21. Since, the appellants above named are on bail and, therefore, a period of four months’ time is given to them from today to make payment of fine of Rs.5,000/-(Rs. Five Thousands Only) by way of compensation in order to give it to the injured-victim PW-4 Madhav Mishra. 22. In case of the default of payment of fine amount of Rs.5,000/-(Rupees Five Thousands Only) by way compensation in order to give it to victim-injured PW-4 Madhav Mishra, so awarded by this Court within the stipulated period of time, each of the appellants shall undergo rigorous imprisonment for a period of two years. 23. The learned trial court is directed to ensure that the said fine amount be deposited by each of the appellants within the stipulated period of time and in default of payment of fine, each of the appellants will serve the sentence as awarded by this Court, by taking all necessary measures as per the provisions of law to ensure that the appellants serve the sentence of imprisonment in case of default of payment of fine. 24. The appellants may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court and at the moment, they deposit the fine amount, they (the appellants) shall be released forthwith on deposit of the said fine amount and they shall be discharged from the liabilities of bail bonds accordingly. 25. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notice shall be sent to the victim PW-4 Madhav Mishra and on his appearance, the said fine amount, if so deposited by the appellants, shall be disbursed to him. 26. 25. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notice shall be sent to the victim PW-4 Madhav Mishra and on his appearance, the said fine amount, if so deposited by the appellants, shall be disbursed to him. 26. In case, if the said victim is not traceable or not available or not found at the given address, or does not present before the Court after the notice, the same shall be disbursed to the close or near relatives or kith and kin of the said victim-injured 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), Dhanbad, if required. 27. Let a copy of this judgment be sent to the learned court below along with the Lower Court Records for its compliance in letters and spirit.