Bablu Sonar, S/o Late Jagarnath Sonar, R/o Tantri, P.O.- Tantri, P.S.- Topchanchi, District- Dhanbad v. The State of Jharkhand
Case Details
Cr. Appeal (D.B.) No. 1389 of 2017 [Against the judgment and order of conviction and sentence dated 11.07.2017 passed by Sri Janardan Singh, learned Additional Sessions Judge-XIII, Dhanbad in S.T. No. 536/2009] Bablu Sonar, S/o Late Jagarnath Sonar, R/o Tantri, P.O.- Tantri, P.S.- Topchanchi, District- Dhanbad … … Appellant ……….. Versus The State of Jharkhand … … Respondent For the Appellant For the State ……….. : Mr. Rajan Kumar, Advocate : Mr. Abhay Kumar Tiwari, A.P.P. P R E S E N T HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA C.A.V. on 25/07/2024 ……….. Pronounced on 12/08/2024 Per Rongon Mukhopadhyay, J.
Legal Reasoning
Heard Mr. Rajan Kumar, learned counsel for the appellant and Mr. Abhay Kumar Tiwari, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 11.07.2017 passed by Sri Janardan Singh, learned Additional Sessions Judge-XIII, Dhanbad in S.T. No. 536/2009, whereby and whereunder the appellant has been convicted for the offences punishable u/s 379 and 307 of the IPC and has been sentenced to undergo R.I. for 10 years along with a fine of Rs. 5,000/- for the offence punishable u/s 307 of the IPC and R.I. for 01 year for the offence punishable u/s 379 of the IPC and in default in payment of fine to undergo R.I. for 06 months. 3. The prosecution case arises out of the written report of Baleshwar Sonar, in which, it has been stated that on 23.02.2009 at about 11:00 A.M. his son Dinesh Kumar aged 08 years was enticed away by Bablu Sonar (appellant) and when his son did not return even at 04:00 P.M., he, his father along with Basudeo Sao, Nago Sharma and others started searching for his son and found him in an unconscious state near the Water Board House. His neck was tied with a gamcha and his gold and silver locket were missing. When his son regained consciousness, he disclosed that Bablu Sonar on the pretext of giving him ‘Baer’ had taken away his lockets and in order to finish him off threw him in the pool of the Water Board but he managed to come out using the stairs and thereafter he become unconscious. Based on the aforesaid allegations Topchanchi P.S. Case No. 23/2009 was instituted against Bablu Sonar for the offences u/s 307/379 of the IPC. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 536/2009. Charge was framed against the accused for the offences punishable u/s 379/411/307 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as nine witnesses in support of its case. 5. P.W.1 (Chottu Das) has stated that it was the day of Shivratri and he was in the procession when he heard some commotion from the house of Baleshwar. He had come to know that Bablu Sonar had committed assault upon the son of Baleshwar. He returned home in the night and came to know that Bablu Sonar had fled away. This witness was not cross-examined by the defence. 6. P.W.2 (Ashok Badaik) has stated that it was Shivratri and he had gone outside his village for work and when he returned in the evening he learnt about Bablu Sonar committing assault upon the son of Baleshwar. The witness was not cross-examined by the defence. 7. P.W.3 (Baijnath Sao) did not support the case of the prosecution and was declared hostile by the prosecution. -2- 8. P.W.4 (Madoli Das) has stated that the incident is of two years back at the time of Shivratri. Bablu had taken away the grandson of Doman Sao on the pretext of giving him ‘Baer’. Bablu Sonar had snatched away the golden chain worn by the boy. After assaulting him he was thrown in the pool of the Water Board. The incident was disclosed by the victim. Chotu Ram was working with him and they had searched for the victim and when he was traced out he was handed over to his father. This witness was also not cross-examined by the defence. 9. P.W.5 (Baleshwar Sonar) is the informant who has stated that it was Shivratri and his son went missing on that day at 11:00 A.M. He and the others started searching but he could not be found. At about 04:00 P.M. his son was traced out lying on the ground near the well of Water House. Apart from him, Basudeo Sao and 4-5 villagers were also present. He had seen a gamcha tied with the neck of Dinesh. The chain around the neck of Dinesh was missing. The gold locket was also missing. He was brought home where he regain consciousness and thereafter he disclosed that Bablu Sonar on the pretext of giving him ‘Baer’ had taken him towards the Jungle where the well of the Water House is situated and asked him to hand over his chain and locket otherwise he would be killed. When Dinesh refused Bablu Sonar had wrapped his gamcha on the throat of Dinesh and threw him in the well. He had also snatched away the chain. When his son regains his senses he managed to come out of the well by using the stairs. He had taken his son to the Police Station from where he was sent to the Hospital. His statement was recorded by the Police in the Police Station itself. His son had a mark on his neck and scratches on both his hands. This witness was not cross-examined by the defence. -3- 10. P.W.6 (Narayan Sao) has proved his signature in seizure list which has been marked as Exhibit-1. In cross-examination, he has deposed that the Police had not recorded his statement. He was also not read over the contents of the seizure list. 11. P.W.7 (Nakul Prasad Swarnkar) has identified his signature in the seizure list which has been marked as Exhibit-1/1. In cross-examination, he has deposed that the Police did not seize any article in his presence. 12. P.W.8 (Dinesh Kumar) is the victim who has stated that on 23.02.2009 at about 11:00 A.M. he was in his house when Bablu Sonar come and on the pretext of giving him ‘Baer’ had taken him near the pool situated in the Eastern Side of his house. He thereafter assaulted him and snatched away his golden locket and silver chain and wrapped his gamcha around his neck and made him unconscious. Bablu Sonar had also assaulted on his hand with stone which created a piercing wound on his hand. He has thrown in the pool of the Water Board but he somehow managed to come out of it. In cross-examination, he has deposed that his house and the house of Bablu Sonar are adjacent to each other. At the time of the incident, he was studying in Class-II. The Water Board House is at a distance of 100 Meter from his house. The accused is his uncle in relation. Prior to this incident the accused had never taken him to the place of occurrence. There is no enmity or dispute between both the sides. 13. P.W.9 (Dr. Rakesh Kumar) was posted at Primary Health Centre, Topchanchi and on 23.02.2009 he had examined Dinesh Kumar Sah and had found the following injuries. 1. ½” wide ligature mark around the neck. 2. ½” wide abrasion around right wrist joint. 3. Haemarrhagic spot in left bulbar canjuntiva. -4- It was opined that the injury was caused by hard and blunt substance. It may be grievous in nature. He has proved the injury report which has been marked as Exhibit-2. 14. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the incident. 15. It has been submitted by Mr. Rajan Kumar, learned counsel appearing for the appellant that though the conviction of the appellant is based primarily upon the evidence of P.W.8 but the said evidence suffers from major contradiction when compare to the evidence of other witnesses. The Investigating Officer of the case has not been examined which has caused prejudiced to the defence. The medical report also does not conclusively prove that the injuries were grievous in nature. 16. Mr. Abhay Kumar Tiwari, learned A.P.P. has referred to the evidence of P.W.5 and P.W.8 and has submitted that their evidences is consistent and trustworthy which clearly indicates about the specific role played by the appellant in attempting to commit the murder of Dinesh Kumar and snatching away his chain and locket. 17. We have heard the learned counsel for the respective parties and have also perused the Trial Court Records. 18. The allegation against the appellant is of attempting to commit the murder of Dinesh Kumar and snatching his chain and locket. As per P.W.5 (informant) he, Basudeo Sao and others had traced out the victim who had subsequently disclosed the incident to them which led to institution of the case. Basudeo Sao who is an independent witness has not been examined by the prosecution. The evidence of P.W.4 reveals that it was he and Chotu Ram who had traced out the victim who was later on handed over to his father. The evidence of P.W.4, therefore, contradicts what has been stated by P.W.5. The other witness of the prosecution is P.W.8 whose version primarily reveals that the -5- purpose of the appellant in enticing him to the Water Board was of snatching his chain and locket. He was made unconscious and thrown in the well but he somehow managed to come out of the well. A similar version has been stated by P.W.5 as disclosed to him by P.W.8. Admittedly, there are no eye-witnesses to the incident and the entire case of the prosecution is based upon the evidence of P.W.5 and P.W.8 though, as noted above by us, the recovery of the boy as claimed by P.W.5 seems to have been contradicted by P.W.4. As per P.W.8 the house of the appellant is situated besides his house. In this context, when we perused the written report we find that the informant has stated about the appellant being a criminal minded person. This would indicate a pre-judicial grudge against the appellant which is perhaps the reason in making the allegations more serious in nature then it actually was. P.W.8 is consistent with respect to his chain and locket being taken away by the appellant but the other manner of occurrence as depicted by him seems to be farfetched. The learned trial court has primarily relied upon the evidence of P.W.5 and P.W.8 in convicting the appellant for the offence u/s 307 of the IPC without considering the inherent absurdities in their evidence. 19. We therefore, set aside that part of the judgment and order of conviction and sentence dated 11.07.2017 passed by Sri Janardan Singh, learned Additional Sessions Judge-XIII, Dhanbad in S.T. No. 536/2009, whereby the appellant has been convicted for the offence u/s 307 of the IPC. So far as the offence u/s 379 of the IPC is concerned, we affirm accordingly that part of the impugned judgment passed by the learned trial court, in which, conviction was made u/s 379 of the IPC as well. 20. The appellant is facing the rigors of trial since 2009 and has also remained sometimes in custody. In such background facts, we modify the sentence imposed upon the appellant u/s 379 of the IPC to the period already undergone. -6- 21.
Decision
This appeal accordingly stands disposed of. (Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) High Court of Jharkhand at Ranchi Dated, the 12th day of August, 2024. A. Sanga/NAFR -7-