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2018 Supreme(Jhk) 782
IN THE HIGH COURT OF JHARKHAND AT RANCHI
KAILASH PRASAD DEO, J.
Indra Kumar Julka, Son of Late Daulat Ram Julka – Appellants
Versus
The State of Jharkhand – Respondent
Cr. Appeal (SJ) No.1315 of 2004
Decided On : 06-07-2018
For the Appellants :Mr. Laljee Sahay and Mr. Hemant Kumar Chakraborty, Advocates
For the Respondent: Mr. Mukesh Kumar, Addl. Public Prosecutor
The central legal point established in the judgment is the need for consistency in applying the law to all accused persons and the technicalities of the law regarding unlawful assembly and specific allegations under the Indian Penal Code.
Headnote:
Indian Penal Code - Criminal Appeal - Sections 147, 452, 323/149 - The court discussed the applicability of sections 147, 452, and 323/149 of the Indian Penal Code and the influence of compromise on the acquittal of co-accused persons. The court set aside the conviction of the appellants under section 149 IPC and section 147 IPC due to doubtful presence and lack of specific allegations.
Fact of the Case:
The case involved an incident where the appellants and other co-accused persons were convicted for offenses under sections 147, 452, and 323/149 of the Indian Penal Code based on a police case filed by the informant. The prosecution's case was based on the informant's allegations of assault, attempted killing, and unlawful entry by the accused persons at his house.
Finding of the Court:
The court found that the conviction and order of sentence passed by the trial court were not sustainable in the eyes of the law. The court set aside the conviction of the appellants under section 149 IPC and section 147 IPC due to doubtful presence and lack of specific allegations.
Issues: The issues involved the applicability of sections 147, 452, and 323/149 of the Indian Penal Code, the influence of compromise on the acquittal of co-accused persons, and the consistency of the law with respect to all accused persons.
Ratio Decidendi: The court's decision was based on the technicalities of the law, including the definition of unlawful assembly under section 141 of the Indian Penal Code and the presence of specific allegations against the appellants. The court also emphasized the need for consistency in the application of the law to all accused persons.
Final Decision: The court allowed the appeal, set aside the conviction and order of sentence, and discharged the appellants from the liability of their bail bonds.
Heard, learned counsel for the appellants, Mr. Laljee Sahay assisted by Mr. Hemant Kumar Chakraborty, Advocate and Mr. Mukesh Kumar, learned Additional Public Prosecutor, appearing for the State.
2. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 16.07.2004, passed by learned Additional Judicial Commissioner, Fast Track Court -VIIIth, Ranchi, in Session Trial No. 563 of 1995/Trial No. 147/2003, whereby both the appellants, Indra Kumar Julka and Samir Julka have been convicted along with other co-accused namely, Raju Julka, Jatin Sahay, Ashwini Rathor, Sandeep Saha, Suprakash Dutta, Anil Jaiswal and Rajesh Khanna, for the offence punishable under sections 147,452 and 323/149 of the Indian Penal Code. Raju Julka has been separately convicted for the offence punishable under sections 452, 147 and 323 of the Indian Pendal Code and sentenced to rigorous imprisonment for 3 years under section 452 of the Indian Penal Code and to fine of Rs. 1000/-, in default of payment of fine to simple imprisonment for 3 months. He is further sentenced to undergo rigorous imprisonment for 1 year under section 147 of the Indian Penal Code and 6 months under section 323 of the Indian Penal Code. Remaining accused persons namely Indra Kumar Julka, Samir Julka, Jatin Sahay, Ashwini Rathor, Sandeep Saha, Suprakash Dutta, Anil Jaiswal and Rajesh Khanna are sentenced to undergo rigorous imprisonment for 3 years under section 452 of the Indian Penal Code and further directed to pay of fine of Rs. 1000/-and in default of payment of fine to undergo simple imprisonment for 3 months. They are further sentenced to undergo rigorous imprisonment for 1 year under section 147 of the Indian Penal Code and 6 months under sections 323/149 of the Indian Penal Code. All the sentences are directed to run concurrently.
3. Other co-accused namely Rajesh Khanna has preferred Cr. Appeal.(SJ) No.1227 of 2004, co-accused Anil Jaiswal, Suprakash Dutta, Ashwini Rathor, Sandeep Kumar Saha and Jatin Sahay have preferred Cr. Appeal (SJ) No.1233 of 2004 and co-accused Raju Julka has preferred Cr. Appeal (SJ) No.1241 of 2004, which have been disposed of by the co-ordinate Bench of this Hon'ble Court, acquitting the other co-accused persons, on the basis of compromise entered into by the parties, but since the compromise has not been entered with appellants namely Indra Kumar Julka and Samir Julka, Cr. Appeal (SJ) No. 1315 of 2004 has been segregated.
4. The prosecution case is based upon fardbeyan of Manmohan Krishan recorded by Sri. R. S. Prasad, Officer In-charge, Bariatu, Police Station, on 25.09.1994 at 21:30 hours, at the home of the informant, where the informant has alleged that around 6:00 P.M. accused Raju Julka came along with one boy and after ascertaining, that the house belongs to Yuvraj, went away. It is further alleged that at about 8.45 P.M. accused Indra Kumar Julka, Samir Julka son of Indra Kumar Julka and Raju Julka along with 5 to 6 boys came in their ambassador car bearing registration no. BHV-6469, in drunken state and they entered in his house and started searching for the informant and his Punjab wali 'Phua' and they were also uttering, that they will finish them. It is further alleged that the accused persons started assaulting the informant and accused Raju Julka, who was having a pistol in his hand, opened fire with intention to kill the informant, but the same missed. It is further alleged that, when the family members namely Sandeep Kumar (not examined), Sunil Kumar Mahendru (P.W-3) and Rakesh Kumar(P.W.-1) tried to intervene, they were also assaulted and injured by accused persons. It is also alleged, that one of the accused also made attempt to throttle the neck of informant's niece, Sushma. In the mean time, alarm was raised and local people assembled there and suspecting the accused persons to be criminal, assaulted them. The accused persons then started fleeing away, but one o
