Barkagaon, District- Hazaribagh … v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (DB) No. 427 of 2016 (Against the judgment of conviction and the order of sentence dated 22.04.2016 passed by the learned Additional Sessions Judge 1st at Hazaribagh in S.T. No. 215 of 2013 arising out of Barkagaown P.S. Case No. 159 of 2012 corresponding to G.R. Case No. 4839 of 2012) Sukhdeo Kumar @ Sukhdi son of Sri Baleshwar Mahto resident of Village- Gangadohar PO & PS: Barkagaon, District- Hazaribagh … … Appellant Versus The State of Jharkhand … … Respondent ------- PRESENT HON’BLE MR. JUSTICE RATNAKER BHENGRA HON’BLE MR. JUSTICE NAVNEET KUMAR For the Appellant For the State ------- : Mr. Binod Kumar Dubey, Advocate : Mr. Pankaj Kumar, PP ------- Oral Judgment 29.07.2024 By Court: Heard the learned counsel Mr. Binod Kumar Dubey appearing on behalf of the appellant and Mr. Pankaj Kumar, the learned PP appearing on behalf of the State. 2. This appeal is directed against the judgment of conviction and the order of sentence dated 22.04.2016 passed by the learned Additional Sessions Judge 1st at Hazaribagh in ST No. 215 of 2013 arising out of Barkagown P.S. Case No. 159 of 2012 corresponding to G.R. Case No. 4839 of 2012 by which the learned Additional Sessions Judge 1st at Hazaribagh has convicted the appellant under section 341/379/307 of IPC and passed the order of sentence for RI of 3 (three) years for the charge under section 379 of IPC, RI for 1 (one) month for the charge under section 341 of IPC and RI of 10 ( Ten) years and a fine of Rs. 10,000/- ( Rupees Ten thousand) for the charge under section 307 of IPC and in case of default of payment of fine, he will have to serve further SI of six months. However, all the sentences shall run concurrently and the period undergone by him shall be set off from the period of sentence. 3.
Facts
The prosecution case in brief as disclosed in the FIR is as under: Fardbeyan of the informant Binod Prasad has been recorded by the ASI S.K. Tiwary of Barkagaun Police Station at about 12.15 PM on 14.12.2012 at PHC Barkagaun in which it has been alleged that on the same 1 Cr. Appeal (DB) No. 427 of 2016 day ( 14.12.2012) at about 9.00 hrs he proceeded from his house situated at village Gangadohar for Ramgarh by his motor cycle and when he reached near Beribaandh about one kilometer away from Maldi Ghati and found that three persons were present there from before and out of whom he was acquainted with only one person namely Sukhdeo Kumar @ Sukhdi son of Baleshwar Mahto of village Gangadohar, PS Barkagown. It is further alleged that said Sukhdeo Kumar directed to stop his Motor cycle and looted Rs. 60,000/- from him, thereupon he told him that “ Sukhdi will not left you” upon which he fired upon him and the bullet hit upon his chest and any how he fled away towards the forest and saved himself and then he informed his house inmates on telephone then they came and brought him from the forest on motor cycle. He further admitted that he identified one accused and claimed to identify rest two on seeing. 4. On the basis of the fardbeyan of the informant Bakagaown P.S. Case No. 159 of 2012, under sections 323, 341, 379, 307/34 IPC was registered against Sukhdeo Kumar @ Sukhdi and two unknown persons. After completion of the investigation, the IO found the occurrence true and submitted charge sheet No. 7/13 dated 31.1.2013 under sections 341, 323, 379, 307/34 IPC against the appellant showing other two unknown persons as unverified. Accordingly, cognizance of the offence was taken on 28.02.2013 and the case was committed to the court of sessions on 4.4.2013 by the court of learned J.M. 1st Class, Hazaribagh and after registering the same as S.T. 215 of 2013 the same has been transferred for trial on 04.12.2015. 5. From the case record it appears that the charge under sections 323, 341, 379 and 307/34 IPC has been framed against the accused on 1.5.2014 and the same has been read over and explained to him in Hindi to which he did not plead his guilty and claimed to be tried. After providing proper opportunities to the prosecution for adducing evidence the prosecution evidence has been closed on 23.01.2016 and statement of the accused under section 313 Cr.P.C. has been recorded on 02.02.2016 and the evidences brought on the record by the prosecution against him has been explained to the accused to which he denied the same and claimed to be innocent and pleaded to be falsely implicated in the case. 2 Cr. Appeal (DB) No. 427 of 2016 6. The learned trial court after conducting the full flagged trial, passed the judgment of conviction and order of sentence dated 22.04.2016 which is under challenge. Arguments advanced on behalf of the Appellant 7.
Legal Reasoning
Having heard both counsels, having perused the case record. It is found from the judgment that the trial court after conducting the trial has convicted the sole appellant for the offence punishable under sections 379,341 and 307 of the Indian Penal Code. Since the appellant does not want to argue this case on the point of conviction, therefore, this Court upholds the judgment of conviction dated 22.04.2016 passed by the learned trial court against the appellant for the offence punishable under sections 379, 341 and 307 of the IPC. 12. So far as sentence is concerned, it is found that in fact the two doctors have been examined on behalf of the prosecution who had medically examined the injured PW 3 and two kinds of opinion have been given by doctors. Doctor PW 7 Nishit Ekka has opined that the injury is simple in nature while the doctor PW 8 Ram Charitra Prasad has opined that the injury was grievous in nature. Further, it is also found from the record that there are two injury reports Ext. 2 and Ext. 3 and from Ext. 2 it is evident that the injury alleged to have been inflicted upon PW 3 was simple in nature while from Ext. 3 it is found that the injury sustained by PW 3 was grievous in nature and therefore, in view of the conflicting depositions of the doctors examined on behalf of the prosecution, it is very difficult to ascertain about the nature of injuries of the injured in order to prove the charge of guilt for the offence punishable under section 307 of IPC. Further, it is also found that this occurrence has taken place as far back as in the year 2012 about 12 4 Cr. Appeal (DB) No. 427 of 2016 years back and the appellant has already suffered the miseries and hardships of the criminal prosecution for a long period of time. Further it is also found that there is nothing on record about the criminal history of the appellant. It has also been submitted on behalf of the appellant that he is ready to give a suitable fine amount by way of compensation to the victim ( PW-3) and therefore, it is found that it is a case where the sentence of imprisonment as awarded by the learned trial Court for the ends of justice be reduced to the period of sentence already undergone by the appellant and in stead of awarding sentence of imprisonment, a sentence of fine be imposed by way of compensation in order to give it to the victim PW 3 which would serve the purpose of justice in awarding sentence. 13. Having taken into consideration the aforesaid mitigating factors under the circumstances of this case, it is found just and fair to modify the order of sentence dated 22.04.2016 passed by the learned Additional Sessions Judge 1st at Hazaribagh in ST No. 215 of 2013 arising out of Barkagown P.S. Case No. 159 of 2012 corresponding to G.R. Case No. 4839 of 2012. 14. Accordingly, the order of sentence dated 22.04.2016 passed by the learned Additional Sessions Judge 1st at Hazaribagh in ST No. 215 of 2013 arising out of Barkagown P.S. Case No. 159 of 2012 corresponding to G.R. Case No. 4839 of 2012 against the appellant is set aside. Further, the sole appellant, namely, Sukhdeo Kumar @ Sukhdi is sentenced to imprisonment for a term of the period already undergone by him and further a sentence of fine is imposed by way of compensation which would serve the purpose of sentence. Accordingly, the sole appellant is sentenced to fine a sum of Rs. 10,000/- by way of compensation in order to give it to the informant PW 3 Binod Prasad. 15. Since the appellant is on bail and, therefore, four months time is awarded from today to pay the fine amount of Rs. 10,000/- and in default of payment of fine amount, the appellant will undergo simple imprisonment for a period of two years. Further the appellant is directed to deposit the fine amount in the Nazarat of the concerned civil court. The learned trial court shall ensure that the said fine amount is deposited within the stipulated period of time, failing which the learned trial court is directed to take all necessary steps to ensure that the sentence of imprisonment in case of 5 Cr. Appeal (DB) No. 427 of 2016 default of payment of fine is served by the appellant by taking all necessary measures as per the provisions of law. 16. As soon as the appellant deposits the fine amount, the appellant will be discharged from the liabilities of bail bonds / he will be released from the jail forthwith. 17. The learned trial court is also directed that on deposit of the said fine amount by the appellant, a notice be sent to the victim P.W. 3 ( PW-3 Binod Prasad, s/o Mr. Ganesh Mahto, Village-Gangadohar, P.S.-Barkagaon, District- Hazaribagh) and on his appearance the said fine amount, if so, deposited by the appellant, shall be disbursed to him. In case, the said victim ( PW-3) is not traceable or not available or not found at the given address, or does not appear before the learned trial Court, the same shall be disbursed to the close or near relatives or kith and kin of the said victim or else, 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), Hazaribagh, if required and the Secretary, D.L.S.A., Hazaribagh is directed to co-operate in this regard. 18. Accordingly, this Criminal Appeal is dismissed with modification in order of sentence as above. 19. Let the Lower Court Records and the copy of the judgment be also transmitted to the learned Court below for its compliance in letter and spirit. (Ratnaker Bhengra, J.) (Navneet Kumar, J) Jharkhand High Court, Ranchi Dated: 29th July 2024 Sharda/NAFR 6 Cr. Appeal (DB) No. 427 of 2016
Arguments
The learned counsel appearing on behalf of the appellant, at the out set, submitted that he is confining his argument only on the point of sentence and he does not want to argue the case on merit on the point of conviction. 8. It has been pointed out by the learned counsel appearing for the appellant that the occurrence has taken place as far back as in the year 2012 and this appellant has been suffering the rigor of criminal prosecution for a long period. Further it has been submitted that there is only one injured person, namely, Binod Prasad. It is further submitted by the counsel for the appellant that the injuries alleged to have been inflicted on PW 3 were conflicting in nature as evident from the depositions of PW 7 and PW8 who are the doctors and they have been examined on behalf of the prosecution. PW 7 has opined that the injuries sustained by the injured were simple in nature while PW 8 has opined that the injuries were grievous in nature and, therefore, the prosecution has failed to get the injuries proved either it was simple or grievous in nature in order to sustain the conviction of the appellant for the offence punishable under section 307 of the Indian Penal Code and it becomes doubtful to infer the intention/knowledge of appellant to commit murder of the injured person in order to determine the charge of attempt to murder to the injured person within the meaning of section 307 of IPC so utmost it is a case of section 324 IPC and not the case under section 307 of the Indian Penal Code. Further it has been stated that the appellant was of the age of 25 years at the time of occurrence and there is nothing on record to show his criminal antecedent. Further it has been submitted that the appellant is ready to pay the sentence of fine in stead of sentence of imprisonment by way of compensation in order to give it to the injured PW 3 and therefore, it is urged on behalf of the appellant that let the period of sentence awarded for the offence punishable under sections 341, 307 and under section 379 IPC be reduced to the period already undergone by him in view of the fact that the appellant had remained in jail for about four years and eight months ( about five years), as evident from the record. 3 Cr. Appeal (DB) No. 427 of 2016 Arguments advanced on behalf of the State 9. On the other hand, the learned PP Mr. Pankaj Kumar opposed the contentions advanced by the appellant and submitted that since the appellant does not want to argue this case on the point of conviction and therefore, let the judgment of conviction for the offence punishable under sections 341, 379 and under section 307 IPC be upheld. Further, on the point of sentence, the learned PP did not controvert this fact that the two doctors who have been examined on behalf of the prosecution had given two different opinions about the nature of injuries as submitted by the appellant although he has submitted that the injuries are there and therefore a suitable order under the facts and circumstances of the case, on the point of sentence may be passed. Findings and Appraisal 10. 11.