Md. Jasim & Ors. vs The State of Jharkhand

By Court: Heard Mr. Kalyan Roy, learned senior counsel for the appellants and Mr. Bishwambhar Shastri, learned A.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 12.05.2009 passed by learned Additional Sessions Judge, Fast Track Court-III, Chatra in Sessions Trial No. 191 of 2004, whereby and whereunder the appellants have been held guilty for the offence under Sections 414 of the I.P.C. and sentenced to undergo R.I. for three years.

The factual matrix giving rise to this appeal, as arise out of self-statement of the informant, is that on 20.02.2003 at 11:45 P.M., he received secret information that some trucks were plying with stolen coal in his locality. Thereafter, he along with other police officials went to New Petrol Pump, Pansalwa and where they saw two trucks coming from Bagra and when they were asked to stop, the driver and other persons of the truck started fleeing away but were apprehended after a chase. Upon chasing truck Nos.BR-14G-7757 and JH-01A-0102, the trucks were found loaded with coal and upon demand, the detained persons failed to produce any authentic paper in support of the same. The informant further seen a truck ASM-5531 near Jain Mandir in Marwari Mohalla, which was loaded with coal and the boarded persons succeeded in fleeing away and thereafter, he lodged a case in respect of all three trucks.

On the basis of above information, Sadar P.S. Case No. 35 of 2003 dated 21.02.2003 was registered for the offences under Sections 413/414 of the I.P.C. against the accused persons.

After completion of investigation, charge-sheet was submitted against the accused persons for the aforesaid offences and after taking cognizance the case was committed to the Court of Sessions, where Sessions Trial No. 191 of 2004 was registered.

In the course of trial, altogether 4 witnesses were examined by the prosecution apart from several documentary evidences.

On the other hand, no oral or documentary evidence has been adduced by the defence.

The case of defence is denial from occurrence and false implication.

After conclusion of trial, the appellants were held guilty for the offences under Section 414 of the I.P.C. and sentenced as stated above which has been assailed in this appeal.

Learned senior 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 414 of the I.P.C. and sentenced to undergo R.I. for three years. Learned counsel further submits that it was first offence of the appellants and they have never been convicted for any other offence. 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 22.05.2009. 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 2003 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 of any other offence. The incident was of the year 2003 and more than two decades have 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 the peculiar facts and circumstances of this case, there is no requirement of calling for any report from the Probation Officer due to lapse of considerable time from the alleged occurrence.

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.