Kayash Mian & Ors. vs The State Of Jharkhand

By Court: Heard Mr. Kanti Kumar Ojha, learned counsel for the appellants and Mr. Bishwambhar Shastri, learned A.P.P. for the State.

Originally this appeal was filed by twenty appellants out of them six appellants, namely Nasir Mian, Muslim Mian, Md. Yaruddin Mian, Habib Mian, Hamid Mian and Junu Mian had died during the pendency of this appeal and their appeal was abated vide order dated 06.12.2024 and 18.06.2026. The rest of the surviving appellants have been renumbered.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 05.09.2005 passed by learned 1^st Additional Sessions Judge, Pakur, in S.C. No. 159 of 1995, whereby and whereunder the appellants have been held guilty for the offence under Sections 325/149 & 148 of the I.P.C. and sentenced to undergo R.I. for three years along with fine of Rs.1000/- each with default stipulation for the offence under Section 325/149 of the I.P.C. and R.I. for one year for the offence under Section 148 of the I.P.C. Both sentences were directed to run concurrently.

The factual matrix giving rise to this appeal is that on 21.07.1994, at about 8:30 A.M., the informant, Bashir Mian, along with his brothers Usman Mian, Rafique Mian, Makbul Mian, Sarful Mian, and Mahbul Mian were ploughing their own field. Just below the informant’s field, Imanuddin Mian and Azimuddin Mian were ploughing their own fields. There was land dispute between Azimuddin Mian, Imanuddin Mian with Badruddin Mian and Kaimuddin Mian. At that time, Ahad Ali Mian, Muslim Mian, Junu Mian, Sobrati Mian, Gobarähan Mian @ Asgar Mian, Dukhu Mian, Salim Mian, Rashid Mian, Habib Mian, Yaruddin Mian, Nasir Mian, Barju Mian, Matiullah Mian, Sukar Ali Mian, Kalam Mian, Badruddin Mian, Nuruddin Mian, Hamid Mian, Sirajuddin Mian, Kayash Mian, and Majuddin Mian came to the field armed with lathi, bhala, farsha, bows and arrows and rod. They chased Imanuddin Mian and Azimuddin Mian, who were ploughing the land just below the informant’s field. Both of them, leaving their oxen behind, fled towards the village. Thereafter, all the accused persons surrounded the informant and his brothers. Sirajuddin Mian stated that they were the main culprits who had directed the two persons to plough the land. Thereafter, Ahad Ali Mian assaulted Bashir Mian, the informant, with lathi, which struck him on his right shoulder and back. The accused persons then surrounded his other brothers, namely, Usman Mian, Rafique Mian, Makbul Mian, Mahbul Mian, and Sarful Mian, and, with an intention to kill them, started assaulting them with farsha, bhala, lathi, and rod. Makbul and Usman Mian sustained injuries on their heads caused by farsha and fell to the ground. The informant’s son, namely Jiyaul Haque was grazing his cattle near the field. He came there to save the informant, whereupon Nuruddin Mian shot arrows at him, one of which struck him on the leg. The villagers, namely Samshul Mian, Ashur Mian, and Nurej Mian, came to rescue them. They were also assaulted by the accused persons with farsha and lathi and sustained injuries. The accused persons took the injured persons up to their house and threatened them that they would kill them if they reported the incident to the police station. After getting an opportunity, the informant went to the police station. The plough was also taken away by the accused persons from the field. The statement of Bashir Mian was recorded at Littipara Police Station and F.I.R. was lodged against all 21 accused persons.

On the basis of above information, Littipara P.S. Case No. 5 of 1994 was registered for the offences under Sections 147/148/149/323/ 324/341/379/307 of the I.P.C.

After completion of investigation, charge-sheet was submitted against all 21 accused persons for the offences under Sections 147, 148, 149, 341, 323, 325 and 307 of the I.P.C. and after taking cognizance the case was committed to the Court of Sessions, where S.C. No. 159 of 1995 was registered and charges were framed under Sections 148 and 307/149 of the I.P.C. which were read and explained to them, but they pleaded not guilty and claimed to be tried.

In the course of trial, altogether 10 witnesses were examined by the prosecution apart from documentary evidence.

On the other hand, defence has also examined one witness. The case of defence is denial from occurrence and false implication.

After conclusion of trial, the appellants were held guilty for the offences under Sections 325/149 & 148 of the I.P.C. and sentenced as stated above which has been assailed in this appeal.

Learned counsel for the appellants without touching the merits of the judgment has confined himself towards the point of non-extension of the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants. He submits that the appellants have been held guilty for the offences under Sections 325/149 & 148 of the I.P.C. and sentenced to undergo R.I. for three years for the offence under Section 325/149 of the I.P.C. and R.I. for one year for the offence under Section 148 of the I.P.C. Learned counsel further submits that it was the first offence of the appellants and they have never been convicted for any other offence. There was also a counter-case in which the informant party was held guilty. The occurrence arose out of a land dispute and was the result of a sudden scuffle between the parties. The incident was neither intended nor premeditated and occurred in the heat of the moment. The Probation Officer’s report has been called for which is also available on record showing no criminal background of the appellants. The appellants have been granted provisional bail by the learned Trial Court which was confirmed by the Co-ordinate Bench of this Court vide order dated 04.10.2005. It is further submitted that the learned Trial Court without recording any special reasons has declined to extend the benefit of Section 4 of the Probation of Offenders Act to the appellants. The occurrence took place in the year 1994 and even after conviction, the appellants have maintained peace and good conduct and have been living normal lives. Hence, the appellants may be granted the benefit of Section 4 of the Probation of Offenders Act instead of directing for substantive sentence of imprisonment as awarded by the learned Trial Court.

On the other hand, learned A.P.P. has defended the impugned judgment on merits but so far as the plea for extension of benefit of Section 4 of the Probation of Offenders Act is concerned, no serious objection has been raised.

I have given anxious consideration to the aforesaid contentions raised on behalf of both side and also perused the impugned judgment and order along with materials available on record.

It appears that plea of first offence and no other previous conviction has been taken by appellants at the time of hearing on quantum of sentence, but has been rejected by learned Trial Court without recording any special reasons. It is also a fact that the appellants have never been previously convicted for any other offence. The incident was of the year 1994 and more than three decades has been elapsed since the date of commission of offence. It is also pleaded that the appellants in the aforesaid period have also maintained peace and harmony and have never been involved in any other criminal activities.

Considering the facts and circumstances of the case, the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, it is expedient in the ends of justice to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants, for which the appellants appear to be entitled, instead of awarding substantive sentence of imprisonment.

In view of the above, this appeal is dismissed on merits with modification in sentence to the extent that instead of undergoing substantive sentence of imprisonment awarded to the appellants by learned Trial Court, the appellants are hereby directed to be released on furnishing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety of like amount each to the satisfaction of learned Trial Court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

If the bond is not furnished within above stipulated time, the learned Trial Court shall issue notice upon the appellants to secure their attendance for furnishing the bond.

In case of violation of terms and conditions of the bond, the learned Trial Court shall call upon the appellants to serve the substantive sentence of imprisonment awarded to them.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back immediately to the court concerned for information and needful.