Jamun Mahto vs State Of Jharkhand

The instant application has been preferred against the judgment dated 28.05.2014, passed by the learned Additional Sessions Judge -IV, Deoghar, in Cr. Appeal No.23/2011, whereby the learned appellate court affirmed and uphold the judgment of conviction dated 26.05.2011, passed by learned Judicial Magistrate 1st Class, Madhupur in T.R. No.435/2011 whereby the learned trial court found the petitioner guilty for offence under Section 354/323 IPC and sentenced him to undergo R.I for one year under Section 354 I.P.C and S.I for three months under Section 323 IPC. However, the sentence has been modified by learned appellate court to the extent of R.I for 6 months for offence under Section 354 & R.I for 3 months for offence committed under Section 323 IPC.

The brief fact of the case is that one Sabo Devi filed a complaint petition being P.C.R. Case No. 341/2004 on 09.02.2005 against the petitioner in the Court of learned S.D.J.M, Madhupur. In the said petition it was alleged that after her marriage she settled in her Maike on the land given by her father. She has further stated that she was having land dispute with her brother, for that purpose, even Panchayati was called, in which the complainant also requested the petitioner to participate. On 14.11.2004 at about 9 P.M when she was sleeping in her house along with her daughter Kajal Kumari, then the accused came and asked to open the door and have a talk with respect to land in dispute. When the petitioner came inside, after some altercation he tried to outrage modesty of the complainant, however, upon hulla, he fled away, which was seen by the witnesses. The complainant went to her husband who works at Madhupur. She went to Madhupur P.S twice but her complaint was not entertained then she filed the complaint petition in the Court of SDJM, Madhupur, which was numbered as P.C.R Case No.341/2004. Further, the complain petition was sent to Madhupur P.S under Section 156 (3) Cr.P.C. for getting it registered as F.I.R which was instituted as Madhupur P.S. Case No.21/2005 under Section 323, 376/511 of I.P.C. After completion of investigation, Police submitted the final form on 31.03.2005. However, on protest petition filed by the complainant, the learned SDJM, Madhupur took cognizance of offence under Section 323, 354 I.P.C and thereafter, substance of accusation u/s 323, 354 I.P.C was explained to the accused to which the petitioner denied and claimed to be tried.

After conclusion of the trial, learned Magistrate held accused guilty under Section 323 and 354 IPC and convicted him for the same and sentenced him R.I for one year u/s 354 IPC and S.I for 3 months u/s 323 I.P.C and the petitioner was directed to serve the sentence concurrently.

Being aggrieved by the order passed by the learned Magistrate, the petitioner filed an appeal before the learned Additional Sessions Judge-IV, Deoghar. The learned appellate court did not interfere with the judgment of conviction, however, modified the sentence to the extent that he awarded R.I for 6 months under Section 354 and R.I for 3 months under Section 323 and both the sentences were directed to run concurrently.

The learned counsel for the petitioner vehemently argued that there is a delay in lodging the F.I.R and the prosecution has failed to explain the delay. In support of his argument, learned counsel for the petitioner has relied on the judgment passed by this Hon'ble Court in Cr. Appeal No.279/2003.

On the other hand, learned APP has opposed the prayer and submitted that there is no error whatsoever in the impugned order and the instant petition deserves to be dismissed.

Heard learned counsel for the parties and perused the material available on record. It is true that there is delay in lodging complaint petition, however, after perusing the complaint petition and the impugned order, it appears that she went twice to the Police station but her complaint was not entertained and she was compelled to lodge the complaint petition before the learned trial court. From perusal of the learned trial court's order it does not transpire that this specific statement was even cross examined by the defence, as such, it would not be appropriate to say that the prosecution has failed to express the reason as stated herein above. The order referred by the learned counsel for the petitioner will not apply in the instant case in view of the fact that in the said case there was a delay of about four month. However, in the instant case the delay is not in-ordinate and the same has been explained. The complainant has categorically stated that she went to the Madhupur P.S. twice but her problem was not solved.

In view of the aforesaid facts, I restrain to interfere with the findings of the learned trial court dated 26.05.2011 and upheld by the learned Appellate Court by order dated 28.05.2014, and the same is hereby confirmed. However, it has also been argued by the learned counsel for the petitioner that the petitioner is about 60 years old and there is no criminal antecedent of the petitioner. Further, it appears that the petitioner has not misused the privilege of bail in this case.

In view of the aforesaid facts and circumstances and looking into the age of the petitioner, in the interest of justice it will be proper to give benefit of Probation of Offenders Act to the petitioner. Hence, the petitioner is directed to be released under Section 4 of Probation of Offenders Act after entering into a bail bond of Rs.10,000/- with two sureties with a like amount each for keeping peace and good behaviour for a period of two years, failing which, he will serve the rest sentence as passed against him by the learned trial court. The petitioner is also directed to pay fine of Rs. 10,000/- which should be paid as compensation to the legal heirs of the deceased in terms of Section 357 (1) (C) of Cr.P.C.

With the aforesaid observations, the instant Revision Application is disposed of.

Let the Lower Court Record be sent to the concerned court forthwith.