Wahid Mian & Ors. vs The State Of Jharkhand

By Court: Heard Mr. Vijay Kumar Roy, learned counsel for the appellants and Mr. S.K. Srivastava, learned A.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 30.03.2009, passed by learned Additional Sessions Judge, (Fast Track Court) 9 at Giridih, in Sessions Trial No. 30 of 2005, whereby and whereunder the appellants have been held guilty for the offence under Sections 324/149, 341 & 148 of the I.P.C. and sentenced to undergo R.I. for two and half years for the offence under Section 324/149 of the I.P.C.; S.I. for one month for the offence under Section 341 of the I.P.C. and R.I. for two years for the offence under Section 148 of the I.P.C. All the sentences were directed to run concurrently. It was further directed that period already undergone during investigation, inquiry or trial were set off.

The factual matrix giving rise to this appeal is that on 22.08.2004 at about 06:00 A.M., the informant, Md. Jakir Hussain was going for nature’s call. As soon as he reached in front of his house near a hand pump, the accused persons, namely Md. Salim Mian, Md. Wahid Mian, Allauddin Mian, Ahmad Mian and Jahuran Bibi approached him. They were armed with lathi, axe, spear, bricks and stones and started assaulting him. Md. Salim gave spear blow upon the informant, as a result of which he became injured. It is further case of the prosecution that the wife of the informant’s brother came to rescue him. The accused persons started abusing her and Wahid Mian snatched her silver locket. The accused persons also assaulted the informant’s brother and his niece, as a result of which they also became injured. The reason behind the occurrence is that the accused persons used to urinate in front of the informant’ house and used filthy language to the informant as well as his family members. The informant has further alleged that the accused persons also pressed the informant’s neck with intention to kill him.

On the basis of above written information, Jamua P.S. Case No. 140 of 2004, was registered for the offences under Sections 147/341/447/323/324/379/504 of the I.P.C.

After completion of investigation, charge-sheet was submitted against the accused persons for the offences under Sections 147/341/447/323/324/307/379/504 of the I.P.C. and after taking cognizance the case was committed to the Court of Sessions, where Sessions Trial No. 30 of 2005 was registered.

In the course of trial, altogether six witnesses were examined and several documentary evidences were also adduced.

However, no oral or documentary evidence has been adduced by defence.

On the other hand, the case of defence is denial from occurrence and false implication.

The learned trial Court after considering the evidence available on record held the appellants guilty for the offences under Sections 148, 341 & 324/149 of the I.P.C. acquitting the appellants from the charges under Sections 447, 307/149 of the I.P.C.

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. It is submitted that the dispute arose out of a prior neighbourhood dispute between the parties regarding urination in front of the informant's house and exchange of abuses, leading to the alleged incident. The appellants have been held guilty for the offences under Sections 148, 341 & 324/149 of the I.P.C. and sentenced to undergo R.I. for two and half years for the offence under Section 324/149 of the I.P.C.; S.I. for one month for the offence under Section 341of the I.P.C. and R.I. for two years for the offence under Section 148 of the I.P.C., 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 20.05.2009. It was first offence of the appellants and they have never been convicted for any other offence. 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 2004 and even after conviction, the appellants have maintained peace and good conduct and have been living normal lives. The prosecution has not been able to brought on record any criminal history or previous conviction of the appellants. 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 2004 and more than two 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 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.