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2018 Supreme(Jhk) 1221
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANIL KUMAR CHOUDHARY, J.
Vikash Singh S/o Late Brahmdeo Singh & Ors. - Appellants
Versus
The State of Jharkhand - Respondent
Cr. Appeal (SJ) No. 84 of 2006
Decided On : 25-09-2018
Advocate Appeared:
For the Appellants : Mr. P.P.N Roy, Mr. Satya Prakash Sinha, Mr. Neeraj Kumar, Mr. P.A.N. Roy, Ms. Pragati Prasad
For the State : Addl. P.P.
Headnote:
Indian Penal Code, 1860 – Sections 307, 148, 324, 147, 323 – Code of Criminal Procedure, 1973 – Sections 360, 313 – Judgment of conviction – Appellants have preferred this appeal being aggrieved by the Judgment of conviction and Order of sentence passed by the learned Additional Sessions Judge-I, passed in Session Trial by which the appellant nos.1 and 2 have been held guilty for the offence punishable under Sections 307/148/324 of the Indian Penal Code and the appellant no.4 has been held guilty for the offence punishable under Sections 148 and 324 of the Indian Penal Code and the rest of the appellants have been held guilty and convicted for the offence punishable under Sections 147 and 323of the Indian Penal Code. – The appellant nos.1 and 2 have been sentenced to undergo R.I. for seven years for the offence punishable under Section 307 of the Indian Penal Code, R.I. for three years for the offence punishable under Section 148 of the Indian Penal Code and no separate sentence has been passed against them for the offence punishable under Section 324 of the Indian Penal Code. – Appellant no.4 has been sentenced to undergo R.I. for three years each for the offence punishable under Sections148 and 324 of the Indian Penal Code and the rest of the appellants have been sentenced to undergo R.I. for two years each for the offence punishable under Sections 147 and 323 of the Indian Penal Code. – Held, So far as the contention of the appellant regarding the non-consideration of the applicability the benefit under section 360 of the Cr.P.C. is concerned, no doubt in view of the settled principle of law as discussed above it was incumbent upon the learned trial court to consider the same before sentencing the appellant-accused persons. – But this court being the appellate court can also consider the same. – Keeping in view the serious nature of evidence against the appellant nos.1 and 2 namely Vikash Singh and Bajrang Singh respectively, of having assaulted the injured persons with dangerous weapons and the reason of the occurrence being an admitted land dispute as well as litigation between the parties, this Court is of the considered view that this is not a fit case where the benefit of Section 360 of the Cr.P.C. and the Provision of Probation of Offenders Act be given to the appellant nos.1 and 2 – Conviction of the appellant-accused persons nos.1 and 2 respectively for the offence punishable under Section 324 of the Indian Penal Code is confirmed. – But this Court is of the considered view that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 148 of the Indian Penal Code against them as the evidence in the record falls short of establishing formation of an unlawful assembly. – Keeping in view the nature of the assault and injury sustained, the appellant-accused persons are sentenced to undergo Rigorous Imprisonment for two years. – Appeal Allowed In Part
Heard learned Senior Counsel for the appellants and learned Addl. P.P. for the State.
2. The appellants have preferred this appeal being aggrieved by the Judgment of conviction and Order of sentence dated 17.01.2006 passed by the learned Additional Sessions Judge-I, Chatra passed in Session Trial No.69 of 2000 by which the appellant nos.1 and 2 have been held guilty for the offence punishable under Sections 307/148/324 of the Indian Penal Code and the appellant no.4 has been held guilty for the offence punishable under Sections 148 and 324 of the Indian Penal Code and the rest of the appellants have been held guilty and convicted for the offence punishable under Sections 147 and 323of the Indian Penal Code. The appellant nos.1 and 2 have been sentenced to undergo R.I. for seven years for the offence punishable under Section 307 of the Indian Penal Code, R.I. for three years for the offence punishable under Section 148 of the Indian Penal Code and no separate sentence has been passed against them for the offence punishable under Section 324 of the Indian Penal Code. Appellant no.4 has been sentenced to undergo R.I. for three years each for the offence punishable under Sections148 and 324 of the Indian Penal Code and the rest of the appellants have been sentenced to undergo R.I. for two years each for the offence punishable under Sections 147 and 323 of the Indian Penal Code.
3. The case of the prosecution as unfolded in the written report of the informant is that on 02.11.1997 at about 3:00 p.m., when the informant was returning from his paddy field, the appellant-accused persons and others variously armed came near the informant and Paras Singh who died during the pendency of the appeal asked the informant as to why he is not withdrawing the dacoity case instituted by him against Vikash Singh and Brahmdeo Singh for the occurrence in the night of 16.04.1994 and abused the informant. At this the appellant no.1 with an intention to murder the informant assaulted the informant on his head with a sword by which the informant became injured and fell down and started screaming. The appellant no.10-Dharmendra Singh exhorted others to kill the informant at which Brahmdeo Singh with an iron rod assaulted the informant on the finger of his left hand causing injury in the finger of the informant. Thereafter the elder brother of the informant namely Mahesh Singh reached the place of occurrence. Komal Singh (since deceased) assaulted with a sword on the head of Mahesh Singh by which Mahesh Singh also fell down. Thereafter appellant no.4-Dhananjay Singh assaulted Mahesh Singh on his right hand by which the right hand of Mahesh Singh was injured. Bajrang Singh assaulted the nephew of the informant namely Satyendra Singh on his head with a farsa (Battle Axe) causing him injury. Paras Singh (died during the pendency of the appeal) assaulted Satyendra Singh with lathi on his waist and leg. The injured persons were taken to hospital. On the basis of the written report of the informant police registered Itkhori P.S. Case No. 106 of 1997and hence, took up investigation of the case.
4. After completion of investigation, police submitted police report against the accused- appellants. After commitment of the case to the Court of Session, charges for the offence punishable under sections147 and 323 of the Indian Penal Code were framed against Brahmdeo Singh (who died during trial) and Paras Singh (who died during the pendency of the appeal) and charges for the offence punishable under Sections 148 and 324 of the Indian Penal Code were framed against the eight accused persons namely Vikash Singh, Vinod Singh, Ram Pravesh Singh, Dhananjay Singh, Gokhul Singh, Mritunjay Singh, Bajrang Singh and Kailu Singh. Also charges for the offence punishable under Section 307 was framed against Vikas Singh, Bajrang Singh, Brahmadeo Singh and Paras Singh (died during the pendency of the appeal) and separate charges for the offence punishable under Section 148/3
