Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 80 (JHR)

Bibhuti Bhushan Mahto v. State of Jharkhand

2024-01-22

NAVNEET KUMAR

body2024
JUDGMENT : NAVNEET KUMAR, J. This appeal is directed against the Judgment of Conviction and order of sentence dated 20th January 2017 passed by the learned Sessions Judge, Seraikella-Kharsawan in S.T. No.55 of 2011, in connection with Chandil P.S. Case No.144 of 2010, corresponding to G.R. Case No.961 of 2010, whereby and where under, while acquitting the Appellants under Section 307 of I.P.C., has convicted the appellants for committing the offence under Sections 341, 323 & 325/34 of the Indian Penal Code and sentenced them to undergo one month simple imprisonment for the offence under Section 341 I.P.C., Six months Rigorous Imprisonment for the offence punishable under Section 323 of the Indian Penal Code and Rigorous Imprisonment for three years for the offence under Section 325 of the IPC and fine of Rupees 5,000/- each and in default of payment of fine, the appellants were further directed to undergo imprisonment for three months and further ordered that the sentences shall run concurrently. 2. The Prosecution story arose in the wake of fardbeyan of PW-3, Thakur Das Mahto, which is recorded by S.I. Mani Bhushan Prasad, O/c –Chandil P.S. on 25.11.2010 at 9:55 hours at Santi Seva Sadan, Chilga. The prosecution story as unfolded in the fardbeyan is that the informant of this case namely Thakur Das Mahato is resident of village Dhatkidih under Chandil P.S and owner of a crasher machine. It is alleged that on 25.11.2010 the informant was ill due to cold and cough and he went to Dr. Yogendra Nath Mahato for treatment. After taking medicines, when the informant was returning to his village on his motorcycle, at about 8.45 am when he reached near Chilgu Morh, then Bibhuti Mahato @ DVC gave signal to stop the informant. The informant stopped there. Thereafter, the accused caught hold of scarf of the informant and stated that informant had assaulted his son Jiten Mahato in the last Durga Puja. Then, the informant said that he had not assaulted to his son. In the meantime, accused Bibhuti Bhusan Mahato with intention to kill him, gave lathi blow on his forehead. The informant sustained injury and blood was oozing and in the meantime, Jiten Mahato came there armed with iron rod and gave iron rod blow to the informant. As a result, he sustained injuries on his right leg behind knee and his leg was fractured. The informant sustained injury and blood was oozing and in the meantime, Jiten Mahato came there armed with iron rod and gave iron rod blow to the informant. As a result, he sustained injuries on his right leg behind knee and his leg was fractured. He also sustained injury on his left leg and wrist of left hand. The informant fell down and in the meantime, the villagers gathered there and they have taken the informant to Shanti Seva Sadan where he gave his fardbeyan. 3. On the basis of the Fardbeyan of the informant, Chandil Police has registered Chandil P.S. Case No.144 of 2010 u/s 341, 323, 325, 307 & 34 of the I.P.C against both the accused persons and after lodging the F.I.R, investigation of this case was taken up and after completing the investigation, the I.O of this case has submitted charge-sheet against the above accused persons in the aforesaid sections and cognizance was taken in this case on 23.02.2011 by the then learned C.J.M., Seraikella in the aforesaid sections and the record was transferred to the Court of A.C.J.M., Seraikella for commitment of the case. Learned Sessions Judge, Seraikella-Kharsawan has framed charge under Sections 341, 323/34, 325/34 and 307/34 of Indian Penal Code and the learned trial court after full-fledged trail passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mr. Rakesh Kumar Sinha, learned defence counsel appearing on behalf of the appellants and Mrs. Sweta Singh, learned APP appearing on behalf of the State. Arguments advanced on behalf of the appellants 5. It is submitted on behalf of the appellants that both the appellants have been convicted for the offence punishable under sections 341, 323, 325 read with section 34 of the IPC and they were sentenced to undergo one month simple imprisonment for the offence under Section 341 I.P.C., Six months Rigorous Imprisonment for the offence punishable under Section 323 of the Indian Penal Code and Rigorous Imprisonment for three year for the offence under Section 325 of the IPC and fine of Rupees 5,000/- each and in default of payment of fine, the appellants were further directed to undergo imprisonment for three months and further ordered that the sentences shall run concurrently. 6. 6. It has further been submitted that these appellants do not want to argue this case on merit and therefore the argument is confined only on the point of sentence. 7. It has further been submitted that the occurrence has taken place as far back as in the year 2010 about 14 years back and further it has been pointed out that all the injuries alleged to have been inflicted upon the victims are simple in nature, but despite this fact the learned trial court has convicted the appellants under section 325 of the Indian Penal Code on the ground that the one of the injuries that is fracture of left lower end of fibula was grievous in nature. 8. Further it has been pointed out that nor any lethal weapon Seized or brought on record and therefore these appellants have been debarred to draw the attention of the concerned doctor during the course of his cross-examination that the fracture as was caused by the lethal weapon or not and as such the opinion by the doctor PW-7 is not substantiated that the fracture of left lower end of fibula was grievous in nature. 9. It has further been submitted that these appellants have already remained in jail for about 5 months 5 days and both the appellants are ready to deposit the reasonable fine amount by way of compensation. It is further submitted that there is nothing on record to show about the criminal history against these appellants and therefore, it is urged on behalf of both the appellants that a lenient view may be taken in awarding the sentence and instead of awarding further sentence of imprisonment, sentence of fine may be imposed. Arguments advanced on behalf of the State 10. On the other hand, learned counsel appearing on behalf of the State opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly convicted the appellants for the offence punishable under section 341, 323, 325 read with section 34 of the IPC and sentenced them accordingly and there is no legal point to interfere with the impugned judgment of conviction and order of sentence and therefore, it is submitted that this appeal is fit to be dismissed, though the learned APP did not controvert the fact that the appellants have remained in custody for more than 5 months. Appraisal & Findings 11. Having heard learned counsel for the parties, perused the record of this case including the lower court records. 12. It is found that it is a case of the year 2010 and it is alleged against both the appellants that they have assaulted the informant Thakur Das Mahato-PW 3 and caused injury and both of appellants have been convicted for the offence punishable under sections 341, 323, 325 read with Section 34 of the IPC. 13. Further it has also been found that out of 10 witnesses, PW-4 was the brother of the informant and he was a hearsay witness. Further it is found that PW-5 and PW-6 have said that they have no knowledge about the occurrence and they have been declared hostile. PW-9 is a hostile witness and the PW-10 was the I.O. of the case. PW 7 was the doctor of the case and he has found that the injuries are simple in nature, except the fracture of left lower end of fibula, which was grievous in nature and on that basis, the learned trial court has convicted the appellants for causing grievous injury under Section 325 of the IPC. Further it is found that both the appellants have been acquitted for the offence punishable under section 307 of IPC. 14. Since the appellants are not arguing this case on merit, therefore this court is not going into the merit of this case and confining only on the point of sentence. 15. It is found that there is nothing on record to show about the criminal history against anyone of the appellants. Further it is also found that the injuries, which are said to have been inflicted upon the injured was not grievous in nature except the fracture of left lower end of fibula. Further it is the case of the year 2010 and it is also found that both the appellants have already remained in jail for about 5 months 5 days in this case and therefore, it is found that purpose of justice would be served if instead of sending the appellants in jail, the sentence of fine by way of compensation is imposed and both the appellants are allowed to pay fine by way of compensation to the victim PW-3 Thakur Das Mahato. 16. 16. Taking into consideration the aforesaid contentions, the impugned judgement of conviction is hereby sustained and the appellants convicted for the offence punishable under sections 341, 323 and 325 read with 34 of the IPC is hereby upheld. 17. So far as the sentence is concerned, it is found that both the appellants have already deposited the fine amount of Rs.2500/- out of total fine amount of Rs.5000/-, which was imposed under section 325 of the IPC. It is found that the learned trial court has sentenced the appellants to undergo S.I. for one month under section 341 of IPC, R.I. for six months under section 323 of IPC and R.I. for three years under section 325 of the IPC. 18. This Court after taking into consideration the fact and circumstances of this case as discussed in the foregoing paragraphs, it is found that justice would be meted out if both the appellants are sentenced to imprisonment for a term of the period already undergone by them, in view of the fact that no useful purpose would be served to send them again in jail after a lapse of about 14 years from the date of occurrence. 19. Accordingly, in the interest of justice, it is found just and fair to impose a collective sentence of fine amount, i.e. a sum of Rs.5000/- (Rupees Five Thousands) upon the appellants by way of compensation in order to give it to P.W.-3 Thakur Das Mahto. 20. Accordingly, a sentence of fine of Rs.5,000/- (Rupees Five Thousand only) is imposed upon the appellants jointly by way of compensation to be given to the victim PW-3 Thakur Das Mahato in addition to the fine amount already deposited by the appellants to a sum of Rs.2500/- imposed by the learned trial court under section 325 of the IPC. 21. Since, the appellants above named are on bail and, therefore, a period of three months’ time is given to them from today to make payment of fine of Rs. 5000/-(Rs. Five Thousand Only) by way of compensation in order to give it to the victim P.W.-3 Thakur Das Mahto, son of Late Kaviram Mahto, resident of village- Dhatikidih, PO & PS – Chandil, District – Seraikella-Kharsawan. 22. In case of the default of payment of fine amount of Rs. 5000/- (Rs. 5000/-(Rs. Five Thousand Only) by way of compensation in order to give it to the victim P.W.-3 Thakur Das Mahto, son of Late Kaviram Mahto, resident of village- Dhatikidih, PO & PS – Chandil, District – Seraikella-Kharsawan. 22. In case of the default of payment of fine amount of Rs. 5000/- (Rs. Five Thousand Only) by way compensation in order to give it to victim above named, so awarded by this Court within the stipulated period of time, both the appellants shall undergo simple imprisonment for a period of Six months. 23. The learned trial court is directed to ensure that the said fine amount be deposited within the stipulated period of time and if the same is not deposited by the appellants, each of the appellant will serve the sentence of imprisonment as awarded in case of default of payment of fine so awarded 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. At the moment, the appellants deposit the fine amount, 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 injured Thakur Das Mahto and on his appearance the said fine amount, if so deposited by the appellants, shall be disbursed to him after proper identification. 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 Thakur Das Mahto 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), Seraikella - Kharsawan, if required. 27. Accordingly, the appeal is dismissed with modification in order of sentence as above. 28. 27. Accordingly, the appeal is dismissed with modification in order of sentence as above. 28. Let the 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 this regard in letter and spirit.