Nagendra Das v. 1. The State of Jharkhand 2. Yamuna Hazara
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 407 of 2004 Nagendra Das Versus 1. The State of Jharkhand 2. Yamuna Hazara ----- ….. Petitioner ….. Opposite Parties CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR ----- For the Petitioner: For the State: Mr. Gaurav Abhishek Mr. Arup Kr. Dey, A.P.P ----- 17/28.06.2024 The present criminal revision has been preferred against the judgement dated 11.02.2004 passed by learned 1st Additional Sessions Judge, Jamtara in Cr. Appeal No. 27/98|156/01 whereby the judgment dated 28.02.1998 passed by the Judicial Magistrate, 1st Class, Jamtara in G.R. Case No. 539/92 (T.R. No. 95/98) convicting the petitioner under Sections 323 & 325 IPC and sentencing him to undergo simple imprisonment for a period of three months under Section
Legal Reasoning
323 IPC and one year under Section 325 IPC, has been confirmed and the period of detention already undergone by him, has been set off against the sentence awarded to him invoking the provision of Section 428 Cr.P.C. 2. The prosecution story, in brief, is that on 18.10.1992 at about 7.00 A.M, Jamuna Hazra (the O.P.No.2) was cleaning the door of his house. At the same time, Hariballabh Das, his sons Nagendra Das (the petitioner herein) & Sunil Das, his wife and daughter, namely, Tara Devi & Meena Devi respectively came there armed with Farsa and Lathi and started abusing him. When the O.P.No.2 protested their said act, Nagendra Das, Hariballab Das and Sunil Das assaulted on the fingers of his left hand due to which his wrist got fractured. The wife as well as the daughter of Hariballab Das assaulted on his back with bricks and stones. They also assaulted his wife. On the basis of the written application given by Jamuna Hazra, the police lodged an F.I.R being Jamtara P.S Case No. 234 of 1992. After investigation, the police submitted charge sheet under 1 Sections 341, 325, 323 and 337/34 IPC. Thereafter, the Trial Court framed the charge under Sections 325, 341, 337 & 323 IPC against all the accused persons. During trial, altogether six witnesses, namely, Doctor R.K. Poddar, Lakhi Narayan Rawani, Ghungru Hari, Jamuna Hazra, Jaya Devi and Arun Marandi were examined by the prosecution to bring home the charges levelled against the accused persons. 3. Learned Trial Court vide judgment dated 28.02.1998, convicted the accused persons, namely, Hariballabh Das, Nagendra Das (the petitioner herein) and Sunil Das under Sections 325 & 323 IPC and sentenced them to undergo simple imprisonment for one year under Section 325 IPC and simple imprisonment for three months under Section 323 IPC whereas accused Tara Devi and Meena Devi were convicted under Sections 337 & 323 IPC and sentenced to undergo simple imprisonment for three months. It was further directed that all the sentences would run concurrently. 4. Aggrieved with the aforesaid judgment of conviction and order of sentence, the said accused persons preferred Criminal Appeal No. 27/98|156/01 which was disposed of by learned 1st Additional Sessions Judge, Jamtara vide judgment dated 11.02.2004 upholding the judgment of conviction and sentence passed against the petitioner under Sections 325 & 323 IPC and the order of sentence passed against him was set off to the period of detention already undergone in view of the provision laid down under Section 428 Cr.P.C. So far as the other accused persons are concerned, they were acquitted of the charges levelled against them. 5.
Legal Reasoning
Learned counsel for the petitioner submits that all the witnesses, except the doctor, who were examined during the trial, are close relatives of the informant and hence the impugned judgment of conviction and order of sentence passed against the petitioner are perverse and illegal. Moreover, the 2 evidence of the defence witness has not been taken into consideration either by the Trial Court or by the Appellate Court. The said Courts also ignored the fact that the investigating officer of the case was not examined by the prosecution. 6. Per-contra, learned APP submits that all the prosecution witnesses including the informant have deposed that the petitioner had assaulted the informant with Lathi on the fingers of his left hand. The medical evidence has also corroborated the ocular evidence adduced by the witnesses. The doctor has also found injury on the ring finger of left hand of the informant and as such there is no infirmity in the impugned judgment of conviction and the order of sentence passed by the Trial Court as well as the Appellate Court against the petitioner. It is further submitted that looking to the facts and circumstance of the present case, the Appellate Court has rightly set off the sentence part against the period of detention undergone by the petitioner and therefore no interference is warranted under revisional jurisdiction of this Court. 7. Heard learned counsel for the parties and perused the relevant materials available on record. 8. P.W.1-Dr. R.K Poddar is the doctor, who had medically examined the informant-Jamuna Hazra. He has deposed that he found fracture on ring finger of left hand of the informant which was confirmed by his X-Ray report and the said injury was found grievous in nature. He has further deposed that the injury was caused by hard and blunt substance such as Lathi or stone. He has also proved the injury report of the informant which has been marked as Ext.1. 9. PW.2-Lakhi Narayan Rawani is the eye witness of the alleged occurrence. He has deposed that while he was going to his house from his shop, he heard ‘Hulla’ near the house of Jamuna Hazra and saw that his sons Hariballabh Das, Nagendra Das & Sunil Das as well as his wife & daughter were assaulting Jamuna Hazra with Lathi due to which sustained injury in his hand. 3 10. The informant Jamuna Hazra has been examined as P.W.4, who has deposed that all the accused persons came near his house holding ‘’Lathi’’ and ‘’Farsa’’ in their hands and started abusing him. He has specifically stated that on his protest, Nagendra Das assaulted him with Lathi on his neck. He tried to stop the said assault by his hand, due to which his finger of left hand got fractured. 11. It appears that the depositions of the P.W.2 as well as the informant are fully corroborated by the medical evidence with regard to the factum of injury sustained by the informant and the tools used in commission of the alleged occurrence. Thus, I do not find any infirmity in the impugned judgment of conviction and order of sentence dated 11.02.2004 passed by learned 1st Additional Sessions Judge, Jamtara in Cr. Appeal No. 27/98|156/01. 12. Now, the question falls for consideration before this Court as to whether the provisions of Section 360 Cr.P.C can be invoked in the present case. 13. I have perused Section 360 Cr.P.C which reads as under: ‘’360. Order to release on probation of good conduct or after admonition. (1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: 4 Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).’’ 14. Thus, in view of Section 360(1) Cr.P.C, an offender of more than 21 years of age, who has been convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less and no previous conviction is proved against him, may be released on probation of good conduct, if looking to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, the Court thinks that it is expedient to release the offender on probation of good conduct. 15. In the case of Om Prakash & Ors. Vs. State of Haryana reported in (2001) 10 SCC 477, the appellants were convicted under Sections 323 & 325 read with Sections 148/149 IPC and were sentenced to undergo imprisonment for two years and six months with further direction that the sentences would run concurrently. The matter having travelled to the Hon’ble Supreme Court, their Lordships held as under: ‘’4. When the case came up for admission before this Court, the learned counsel for the appellants raised the contention that the provisions of Section 360 CrPC have not at all been looked into and we, therefore, issued limited notice as to why the said provisions will not be attracted to the facts and circumstances of the present case. The provisions of Section 360 CrPC are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of Section 360 CrPC is being denied. In view of the peremptory nature of the language of provisions of Section 361, the Magistrate as well as in appeal and revision not having the Court indicated as to why the provisions of Section 360 5 CrPC have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the Code have not been complied with. 5. In these circumstances, after hearing the learned counsel for the appellants and Mr Mahabir Singh, learned counsel appearing for the State of Haryana and bearing in mind the facts and circumstances of the present case, we are of the considered opinion that this is a fit case where the Court should have invoked the provisions of Section 360 CrPC. While, therefore, upholding the the appellants, instead of the sentence, we direct that they shall execute a bond with one surety to the extent of Rs 10,000 for a period of one year within which period they shall continue to be on probation for good behaviour and keeping peace. The appellants shall prove to be of good conduct and maintain peace during the period of probation. The bond be executed before the trying Magistrate within a period of two weeks from today.’’ conviction of 16. In the present case, more than 30 years have elapsed since the date of the alleged occurrence and presently the petitioner is more than 55 years of age. Moreover, no previous conviction has been proved against him. As such, looking to the nature of the offence as well as the facts and circumstance of the present case, this Court is of the view that granting the benefit of Section 360 Cr.P.C to the petitioner would meet the ends of justice. Hence, the petitioner is directed to execute a bond before the concerned Trial Court within a period of three weeks from today with one surety to the extent of Rs.10,000/- for a period of one year, within which he shall continue to be on probation for good behaviour and for keeping peace. The petitioner shall bear good conduct and maintain peace during the period of probation. 17.
Decision
The present criminal revision is accordingly disposed of with the aforesaid observation and direction. Satish/A.F.R (RAJESH SHANKAR, J) 6