Hari Mahto & Anr. vs The State Of Jharkhand

Heard Mr. S. P. Roy, learned counsel appearing for the appellants and Mrs. Nehala Sharmin, learned Spl. P.P appearing on behalf of the State.

The instant Criminal Appeal is directed against the judgment of conviction and order of sentence dated 24.02.2007 passed by the learned 5^th Additional Sessions Judge (F.T.C), Dumka in Connection with Sessions Case No. 169 of 2005, whereby and whereunder the above-named appellants have been convicted for the offence punishable under Sections 324/341/34 of IPC and sentenced to undergo Rigorous Imprisonment for a period of two years each for the offence punishable under Section 324/34 of IPC and no separate sentence awarded under Section 341 of IPC.

The prosecution case is based upon the fardbeyan of the informant namely, Indradeo Mahto who alleged that his elder brother Hari Mahto (appellant no.1), despite partition, sold bamboo belonging to his share to one Banga Tudu. On objection, all the accused persons namely Hari Mahto with a lathi, Jagarnath Mahto with a tanga, and Kameshwari Devi with her daughter Mina Devi, both armed with spades, arrived and dragged the informant and assaulted him with an axe near his left ear. When his wife intervened, Kameshwari Devi restrained her while Mina Devi struck her with a spade on her head and back, causing unconsciousness and bleeding injuries, thereafter on villager’s arrival, the accused persons fled away and the injured were taken to hospital.

On the allegations, Ramgarh P.S. Case No.124 of 2004 was registered under Sections 323, 341, 326, 307 and 34 of IPC. After investigation, charge-sheet was submitted and cognizance was taken and the matter committed to the Court of Sessions. Charges under Sections 307 and 323 of IPC were framed, to which the accused pleaded not guilty.

At the outset, learned counsel for the appellants submitted that he is not assailing the judgment of conviction and confining his submissions only to challenging the quantum of sentence awarded to the appellants for the offence under Section 324 and 34 of IPC. At the same time, he submitted that it’s a case where two brothers allegedly involved in scuffle which is very evident from the fact that appellant no.2 also received injuries which is corroborated by the testimony of doctor examined in the present case as P.W. 1.

He further pointed out that initially the case was registered under Sections 323, 341, 326, 307 and 34 of IPC against the four accused persons and charge under Sections 323 and 307 of IPC were framed against all the accused persons. The learned trial court after appreciating the evidence, convicted the accused persons under Sections 324, 341 and 34 of IPC. Out of four convict persons, one female convict who happens to be the wife of appellant no.1 and mother of appellant no.2 and other female convict was the daughter of appellant no.1 and sister of appellant no.2. These two female co-convits have been extended the benefit of Section 4 of Probation of Offenders Act, 1958 by the learned trial court.

It has further been urged on behalf of the appellants that appellant nos.1 and 2 are father and son respectively. The occurrence pertains to the year 2004 and the appellants have endured the agony of trial for more than two decades and the occurrence took place on account of alleged cutting of bamboo which was objected by the informant of the present case. It is further submitted that no useful purpose would be served by sending them back to behind the bar at this stage. Attention has also been drawn to the fact that the appellants are the breadwinners of the family. On these premise, a prayer has been made before this Court to take a sympathetic view and to modify the sentence awarded to the appellants, to the period already undergone by them.

Learned Spl. P.P. for the State has opposed the prayer advanced on behalf of the appellants and submitted that injuries have been inflicted upon the person of the informant, and therefore the aspect of blood relationship ought not to weigh before this appellate court. It was further contended that no interference is warranted with the order of sentence passed by the learned trial court.

This Court, upon consideration of the submissions advanced on behalf of the appellants, is not inclined to examine the present appeal on merits, insofar as the correctness of the judgment of conviction is concerned. Moreover, this Court has carefully examined the testimonies of the witnesses on record and finds that the dispute is essentially between two real brothers, wherein one family allegedly assaulted the other, culminating in the registration of the present case. However, P.W.-1, the Doctor, found tenderness in the scrotum of Appellant No.2.

As far as, with regard to the quantum of sentence, record reveals that the occurrence pertains to the year 2004 and these appellants have endured the rigours of criminal litigation for more than two decades. It further transpires that Appellant No. 1 has not undergone in judicial custody while Appellant No. 2 has remained in judicial custody for twenty four days, in connection with the present case. It is also borne out that they are the breadwinners of their respective family. Having regard to the totality of the facts and circumstances, this Court is of the considered view that the ends of justice would be adequately served by modifying the sentence awarded to these appellants and restricting the sentence of Appellant No.2 to the period already undergone by him. However, this Court finds it appropriate to impose a fine on these two appellants.

Therefore, the Appellant No. 2, Jagarnath Mahto, is directed to pay fine of Rs. 5,000/- and as far as Appellant No.1 is concerned, record reveals that he surrendered before the court concerned and admitted to bail on the same day and did not remain in custody at all. In such circumstances, the ends of justice would be met by directing the appellant no.1, Hari Mahto to deposit a fine of Rs. 10,000/-.

Accordingly, the impugned judgment of conviction passed by the learned Sessions Court is, hereby, upheld and affirmed. However, the substantive sentence awarded to these appellants stands modified as stated in preceding paragraphs. The above-named appellants are directed to deposit the fine, within eight weeks from the receipt of this judgment by the learned trial court, failing which, the learned trial court shall proceed to recover the fine amount in accordance with law.

Resultantly, the present appeal being, Criminal Appeal (S.J.) No. 427 of 2007 is, hereby, partly allowed to the above extent.

Since, the appellants are already on bail, they are discharged from the liability of their respective bail bonds.

Let a copy of this judgment along with the trial Court record be sent forthwith to the concerned court for information and needful.

Pending I.A., if any, stands disposed of.