Shiv Charan Mardi vs State Of Jharkhand

Pradeep Kumar Srivastava, J

Heard Mr. L.C.N. Shahdeo, learned counsel for the appellant as well as Mr. Shailesh Kr. Singh, learned counsel appearing for the State.

This criminal appeal is directed against the judgment and order of conviction and sentence passed in Sessions Trial No. 79/2005 by the Learned Additional Sessions Judge, Fast Track Court-II, Seraikella, whereby and where under the appellant was held guilty for the offence punishable under Sections 448, 354 of the Indian Penal Code and accordingly sentenced to undergo R.I. for one year under Section 448 of the I.P.C. and two years under Section 354 of the I.P.C. and both the sentences were directed to run concurrently.

Factual Matrix

The prosecution case initiated on the basis of a fardbeyan on 22.02.2005 at 10:00 AM of the informant Kumari Prabhavati Nayak alleging inter alia that she was residing as a tenant in the house of accused person. It is further alleged that there was a dispute of non-payment of rent by the informant. On 20.02.2005, when she was alone in her room, the appellant entered in her room and tried to commit rape but informant managed to escape and run towards Tayoo colony and entered in the house of Shankar Lohar, where appellant followed her and started quarrelling with Shankar Lohar, Putul Lohar and other members. Suddenly, scuffle took place between them in which Devendar Lohar was injured.

On the basis of the farbeyan of the informant Gamharia P.S. Case No. 0022 of 2005 was instituted and after investigation charge-sheet was submitted for offence under Section 452, 376 read with 511 of I.P.C. After taking cognizance the case was committed to the Court of Sessions where the charges against the appellant were framed. They pleaded not guilty and claimed to be tried.

The learned trial court after considering the oral as well as documentary evidence adduced by the prosecution and after hearing the parties found the appellant guilty for the offences under Sections 448 & 354 of the Indian Penal Code and sentenced him as aforesaid.

Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence dated 10.10.2006; this Criminal Appeal has been preferred by the appellant.

Learned counsel for the appellant without touching the merits of the judgment has confined himself towards the quantum of sentence imposed against him and substantial period of imprisonment which is more than six months imprisonment undergone by him during the trial of the case. It is submitted that the allegation against the appellant was for committing rape with the informant. It is further submitted that the appellant was held guilty only on the basis of suspicion and in absence of direct evidence against him. Therefore, he may be released on sentence already undergone instead of two years imprisonment as awarded by the learned trial court.

On the other hand, learned Additional Public Prosecutor has raised no objection as regard to aforesaid contentions advanced by the learned counsel for the appellant and submitted that on merits, this appeal is fit to be dismissed, but so far modification in sentence is concerned, in the factual aspect of the case, appropriate order may be passed.

I have gone through the record of the case along with impugned judgment and order in the light of the contentions raised on behalf of both side. It appears that in order to substantiate the charges leveled against all accused persons, altogether six witnesses were examined by the prosecution.

P.W.1 Putul Lohar is the neighbor of the informant. In her evidence, she has stated that at about 05:00 PM, the informant came to her house and told her that accused forced her to lie on the ground for the commission of rape but somehow she escaped and in the meantime, there was some scuffle took place between the accused and Devendra Lohar, Shankar, Putul and Khokhi in which accused was caught and handed over to police.

P.W.2 Prabhawati Nayak is the informant of the case. In her evidence, she has stated that on 20.02.2005 when she was alone at her rented house, the appellant forcibly entered into her house and tried to commit rape upon her but somehow she managed to escape and run away towards the house of Shankar Lohar where accused followed her and upon protest by the Shankar Lohar, Putul Lohar, Devndra Lohar and Khokhi Lohar quarrel took place with the accused person (Shiv Charan Mardi). Thereafter, they caught hold of the accused and handed over to the police.

P.W.3 Khokhi Lohar has supported the version of P.W.2 Prabhawati Nayak (informant).

P.W.4 Shankar Lohar has also supported the version of the informant.

P.W.5 Devendra Lohar is the neighbor of the informant. In his evidence, he has stated that in the evening at about 05:30 PM, he went to the residence of Shankar and saw that there quarrel is going on between the accused and Shankar, Putual and Khokhi along with other persons thereafter, the appellant cut the cheek of Devendra Lohar. It has further deposed by this witness that he along with other took the appellant to the police station.

P.W.6 Ram Pratap Ram is the Investigating Officer of this case. In his evidence this witness has stated that on 10:00 AM, one Prabhapati Nayak had given a written report on the basis of that written report Gamharia P.S. Case No.22 of 2005 was registered under Section 452, 376/511 of the Indian Penal Code.

It appears that the learned trial court has rightly convicted the appellant for the offences under Sections 448 & 354. Thus, the conviction of the appellant is upheld. However, the alleged occurrence was of the year 2005 and almost more than 19 years has been passed from the alleged occurrence. The appellant has sustained agony of trial for the aforesaid period and also served six months in custody.

Under the aforementioned circumstances, in the interest of justice, the imprisonment already undergone appears to be sufficient punishment for the offence committed by the appellant.

12.In view of aforesaid discussion and reasons, impugned judgment is upheld on merits but with modification in sentence to the extent mentioned above i.e. appellant is sentenced to imprisonment for the period already undergone by him. Accordingly, this appeal is dismissed on merits with modification in the sentence.

13.Appellant is on bail, as such he shall be discharged from the liability of bail bond and sureties shall also be discharged.

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

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