Haren Das @ Horen Das son of Basudeo Das, resident of Mouza Bolaidih, Gamharia v. 1. The State of Jharkhand 2. Biswanath Ghose R/o Gamharia, Bilasnagar, P.O. & P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1106 of 2015 Haren Das @ Horen Das son of Basudeo Das, resident of Mouza Bolaidih, Gamharia, P.O. Gamharia, P.S. Adityapur, District Seraikella,- …… Petitioner/appellant/accused Kharsawan Versus 1. The State of Jharkhand 2. Biswanath Ghose R/o Gamharia, Bilasnagar, P.O. & P.S. Adityapur Seraikella Kharsawa ……Opposite parties ---------- CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA For the Petitioner ----- : Mr. Mokhtar Ahmed, Advocate For the State : Mrs. Ruby Pandey, A.P.P. ….. Order No.15/ Dated:18.06.2024
Legal Reasoning
1. Heard the learned counsel for the parties. 2. The instant Criminal Revision is directed against the order dated 07.08.2015 passed in Cr. Appeal No. 17 of 2011 by the learned Additional Sessions Judge-II, Seraikella, whereby and whereunder the learned Appellate court has been pleased to confirm the sentences pronounced by the leaned trial court dated 14.02.2011 in G.R. No. 459 of 2001 arising out of Adityapur P.S. Case No. 154 of 2001, dated 18.07.2001, whereby and whereunder petitioner was sentenced to undergo R.I. for three years for the offence under Section 365 read with U/s 201 IPC and further sentenced to undergo R.I. for six months for the offence U/s 279 IPC and R.I. for six months for the offence u/s 337 IPC. 3. Factual matrix giving rise to this revision is that informant Bishwanath Ghosh son of Ashwani Kumar Ghosh resident of Bada Gamharia, P.S. Adityapur District-Seraikella-Kharsawan received an information that his father Ashwani Ghosh has received injury in an accident caused by Tata 407 vehicle near A.K. Industry on 18.07.2001 in between 10:00 to 11:00 A.M. while he was returning to his house from Tata and the offending vehicle which was white in colour has brought his father towards Seraikella. On that very information informant went to Seraikella and asked about his father, then the owner of the white Tata 407 vehicle bearing No. 113M informed that neither the said accident has been caused by his vehicle nor he has brought the injured, rather the injured has been brought by Tata 407 vehicle No. 9495. After said information he tried to search his father and the offending vehicle but could not tress. The informant submitted a written report regarding the occurrence to the Officer-in-charge of Adityapur P.S. and on the basis of said written report a formal FIR was drawn and SI Mahesh Prasad Singh started investigation. 4. Learned counsel for the petitioner has submitted that petitioner has been held guilty in a case of accident but the offence under Sections 365 and 201 IPC is not applicable against the petitioner at all. Petitioner is the driver of the offending vehicle which caused accident of the injured who fell down from the vehicle. The eye witnesses examined by the prosecution ha consistently stated that they have seen the injured lying on the earth falling from the vehicle but there is no evidence at all that present petitioner lifted the injured brought him to the hospital and thereafter concealed his body. 2 Cr. Revision No. 1106 of 2015 Petitioner has been sentenced for the offences under Section 279, 337 for six months each which he has already undergone during the trial of the case. The sentence of three years caused for the offence under Section 365 read with Section 201 IPC is not warranted against the petitioner, hence, petitioner has already sufficiently punished for his guilt. Accordingly, this Revision may be allowed setting aside the impugned Judgment.
Legal Reasoning
5. Learned APP has opposed the submission of the learned counsel for the petitioner but fairly admit the ingredients of offence under Section 365 of the Indian Penal Code are not attracted in the factual matrix of the case against the petitioner. Although, P.W. 2 is the son of informant not being a eye witness but has stated that in general way that accused persons including the petitioner have kidnapped his father, hence conviction and sentence of the petitioner for the aforesaid offence is also made out and there is concurrent finding of the trial court and the appellate court confirming the sentence of the petitioner for the aforesaid offence, hence, this Revision is fit to be dismissed. 6. I have considered the Section 365 IPC is extracted hereunder. According to above definition there are following ingredients. Section 365 IPC provides as follows: Kidnapping or abducting with intent secretly and wrongfully to confine person.- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, 3 Cr. Revision No. 1106 of 2015 shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 362 defines abduction- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Section 359 defines kidnapping- Kidnapping is of two kinds: kidnapping from [India], and kidnapping from lawful guardianship. 360. Kidnapping from India- Whoever conveys any person beyond the limits of [India] without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from [India]. 361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under 2 [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 7. So far as kidnapping is concerned, same is not applicable here as there is no ingredient of Section 360 or 361 IPC. So far as abduction is concerned there is absolutely no evidence to show victim was forcefully compelled or deceitfully entices to go away with petitioner. In present case, the only eye witness who has met with the victim is P.W. 9, Dr. Somit Samanta who stated that on 18.07.2001 injured was brought to him by some persons and he had simple abrasion and after first aid they returned. P.W. 9 did not identify the petitioner nor 4 Cr. Revision No. 1106 of 2015 stated anything regarding forcefully taking injured. Hence the whole story of injured being kidnapped is based on assumption and presumption. 8. In the instant case, the sole witness P.W.2 relied upon by the prosecution is the son of the injured who is not eye witness of the occurrence rather other witnesses examined by the prosecution who have seen the deceased while falling from the vehicle and lying on the road have not stated that the injured was carried by the petitioner lifting him on the vehicle and send to the hospital. The injured was also hospitalized and Doctor Prescription was exhibited as Ex.2 but nothing has transpired in the evidence of witnesses showing perpetration of the petitioner in kidnapping the injured father of P.W. 2 who sustained injuries due to accident. As such it appears that both the court below have conjectured on the point of applicability of Section 201 & 365 IPC against the petitioner and recorded perverse finding which is hereby set aside. The conviction and sentence of the petitioner for the offence under Section 337 & 279 IPC is upheld. However, it is clear that petitioner has already undergone the sentence awarded for the aforesaid offences.
Decision
9. In the aforesaid mentioned circumstances, this Revision is disposed of with aforesaid observation the imprisonment already undergone appears to be sufficient punishment for the offence committed by him. 10. In view of discussions and reasons, this revision is dismissed on merits, but with modification in sentence to the extent mentioned 5 Cr. Revision No. 1106 of 2015 above i.e. petitioner is sentenced to go imprisonment for the period already undergone. 11. Petitioner is on bail, as such, he shall be discharged from the liability of bail bond and sureties shall also be discharged. 12. Let the copy of this order along with L.C.R. be sent to the concerned court forthwith. Rajnish/ (Pradeep Kumar Srivastava, J.) 6 Cr. Revision No. 1106 of 2015