Shashadhar Shit vs The State Of Jharkhand

By Court:- Heard the learned counsel for the parties.

The present Criminal Appeal is directed against the judgment of conviction and order of sentence, both dated, 06.06.2005 passed by the learned Additional Sessions Judge, F.T.C.No.2,Ghatsila in S.T.Case case No.495 of 1990, whereby and whereunder, the appellant has been convicted under sections 325 and 341 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of three years and one month simple imprisonment respectively and he has been further imposed a fine of Rs 1000/-each with default stipulation and all the sentences were directed to run concurrently.

The factual matrix giving rise to this appeal is that on 23.5.1988 when Nimai Pradhan, informant (P.W.-5) along with Dilip Kumar Patra and Gunda Bera were returning from the house of Pradhan Munda of village Bandh, at about 7 p.m. and they reached near Hathiya nala, the accused appellant, all of a sudden surrounded the informant and starting assaulting him with lathi and stones. On hearing alarm, the nearby people came there and thereafter the accused persons fled away.

The said incident was reported to the police on the basis of which Dhalbhumgarh PS Case No. 28 of 1988 dated 24.5.1988 was registered against the appellant for the offence under sections 341/325/337/307 of the Indian Penal Code. After completion of investigation, charge sheet was submitted against the accused appellant under sections 341/323/325/336/207 of the Indian Penal Code. After taking cognizance of the offence, the learned Magistrate committed the case to the Court of Sessions; where Sessions Case No. 495 of 1990 was registered. Thereafter, charges were framed under sections 307/34, 325/34/338/34 and 341/34 of the Indian Penal Code which were read over to the appellant to which he pleaded not guilty and claimed to be tried.

In course of trial, the prosecution has examined altogether 6 witnesses and also adduced two documentary evidences.

No evidence has been adduced on behalf of defence.

After conclusion of trial, the learned trial court, after considering the oral as well as documentary evidence available on record, has convicted and sentenced the appellant, as stated above, which is assailed in this appeal.

Learned counsel for the appellant, without touching the merits of the case, has confined himself on the point of non-extension of benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellant. It is submitted that it was first offence of the appellant and he has never been convicted in another case. The plea of first offender and extension of benefit of section 360 Cr.P.C. and Probation of Offenders Act, 1958 was raised before the learned Trial Court, but the learned trial court without recording any special reason has declined the same. Hence, appellant deserves the benefit of extension of Section 360 Cr.P.C. and Section 4 of the Probation of Offenders Act, 1958.

On the other hand, learned A.P.P. appearing for the State has opposed the contentions raised on behalf of the appellant and defended the impugned judgment and order on merits. So far extension of benefit of Section 4 of Probation of Offenders Act, 1958 is concerned, it is fairly submitted that it was first offence of the appellant and there is no previous conviction against the appellant.

I have gone through the record of the case along with the impugned judgment of conviction and order of sentence in the light of contentions raised on behalf of both the parties.

It appears from the impugned judgment and evidence available on record that the informant along with Dilip Kumar Patra and Gunda Bera were returning from the house of Pradhan Munda of village Bandh, at about 7 p.m. When they reached near Hathiya nala, the accused appellant along with another, all of a sudden surrounded the informant and starting assaulting him with lathi and stones. It also appears that the weapon used in the incident is lathi and stones, both are hard and blunt substances. The informant who has been examined as PW-5, has remained intact in his deposition during examination in chief and cross examination. PW-1 Dilip Kumar Patra who was accompanying with the informant has also corroborated the deposition of the informant. PW-2, PW-3 and PW4 are the persons who came at the place of occurrence and after hearing the alarm raised by the informant and others, have fully corroborated the statement of the injured informant. As per injury report, the informant has sustained one lacerated wound over his head and fracture is also there which is grievous in nature. The doctor (PW-6) who has examined the informant has also proved the injury sustained by the informant. The occurrence is of the year 1988 and more than three decades have passed and the appellant has suffered the agony of trial for such a long period.

So far as the sentence awarded to the appellant is concerned, from perusal of impugned judgment, it also appears that the defence has taken plea that there is no previous conviction or criminal antecedent against the appellant and this is the first offence, for which the convict found guilty, which has not been denied by the prosecution. It also appears from perusal of impugned order that plea of first offender and extension of benefit of Section 360 Cr.P.C. and Section 4 of Probation of Offenders Act, 1958 has been declined by the learned trial court without recording any special reasons.

In view of the above, it appears that the learned trial court has rightly held the appellant guilty for the offence punishable under section 325 and 341 of the India Penal Code. There is no error in the impugned judgment. Hence, the conviction of the appellant is upheld.

Considering the facts and circumstances of the case, the nature of offence committed by the appellant, the genesis and manner of occurrence, age, antecedent and character of the appellant, 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 he appears 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 appellant by learned Trial Court, the appellant is hereby directed to be released on furnishing bond of Rs.5,000/- (Rupees Five Thousand) with one surety of like amount 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 appellant to secure his attendance for furnishing the bond.

In case of violation of terms and conditions of the bond, the appellant shall be called upon to serve the sentences already awarded to him.

Pending I.A. if any stands disposed of.

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

I take this opportunity to appreciate the assistance rendered by Mr. Shubhashis Rasik Soren, the learned Amicus Curiae appearing on behalf of the appellant in Cr. Appeal (SJ) No. 744 of 2005 and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fee as per notification of High Court Legal Services Committee to Mr. Shubhashis Rasik Soren, the learned Amicus Curiae within a period of four weeks from the date of receipt/production of a copy of this order.

Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee.