Amulya Gorain vs The State Of Jharkhand
2021 Latest Caselaw 4559 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           Cr. Revision No. 93 of 2003

         1. Amulya Gorain
         2. Rup Chand Gorain
         3. Mutuka Gorain
            all are sons of late Chaitu Gorain of Village Lanka P.O. Ghaghri
            P.S. Chandankiari District Bokaro ...         ...   ...     Petitioners
                                 Versus
         1. The State of Jharkhand
         2. Sahachari Gorain w/o Late Dasu Gorain
         3. Kamal Gorain
         4. Narayan Gorain
            Both O.P. Nos. 3 & 4 are sons of Late Dasu Gorain, All R/o
            village Lanka, P.O. Ghaghri, P.S. Chandankiari Dist. Bokaro
                                                  ...     ...   Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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         For the Petitioners          : Mr. Sunil Singh, Advocate
         For the State                : Mr. Rajesh Kumar, A.P.P.
         For the O.P. No. 2           : Mr. Ajit Kumar, Advocate

10/02.12.2021

1. Heard Mr. Sunil Singh, learned counsel appearing on behalf of the petitioners.

2. Heard Mr. Ajit Kumar, learned counsel appearing on behalf of the opposite party No. 2.

3. Heard Mr. Rajesh Kumar, learned counsel appearing on behalf of the opposite party-State.

4. The present revision is directed against the judgment dated 10.12.2002, passed by learned Additional Sessions Judge-III, Bokaro, in Cr. Appeal No. 86/2000, whereby the appeal filed by the petitioners has been dismissed.

5. The petitioners were convicted for offences under Sections 323,325/34 of the Indian Penal Code vide judgment of conviction passed by the learned Judicial Magistrate, 1st Class, Chas, Bokaro dated 14.08.2000, who convicted the petitioners and sentenced them to undergo rigorous imprisonment for 3 months for offence under Section 323 IPC and one year for

offence under Section 325 of the Indian Penal Code arising out of G.R. No. 516/1994.

6. Learned counsel appearing on behalf of the petitioners has confined his argument on the point of sentence. Learned counsel submits that the petitioner No. 1 as on date is about 72 years of age and so far as petitioner nos. 2 and 3 are concerned, their present age is about 50 years and 63 years respectively. Learned counsel submits that present offence is the first offence of all the three petitioners. He also submitted that there is land dispute between the parties and in support of which certain sale deeds were also produced and exhibited before the learned court below as Exhibit-A and Exhibit-B. Learned counsel submits that both the parties belong to the same family. Learned counsel has further submitted that the incident is of the year 1993 and more than 27 years have elapsed from the date of the incident and as on date the parties are living peacefully. Learned counsel submits that during the revision application, the petitioners had surrendered before the learned court below on 30.01.2003 and thereafter they were granted bail by this court vide order dated 05.02.2003 and the bail bond was furnished by them on 10.02.2003 and accordingly they have remained in custody for about 11 days. Learned counsel submits that the impugned orders would indicate that the petitioner No. 1 Amulya Gorain is the main assailant and the petitioner Nos. 2 and 3 had accompanied him and the allegation against the petitioner Nos. 2 and 3 is that they had assaulted the victims by fists and slaps. Learned counsel submits that considering the present age of the petitioner No. 1 and the nature of allegation against petitioner Nos. 2 and 3, the sentence of the petitioners be modified. He has also submitted that some victim compensation may be fixed, as the dispute is between the members of the same family. Learned counsel has also submitted that there is no minimum sentence as such prescribed for offences under

Sections 323 and 325 of the Indian Penal Code.

7. Learned counsel appearing on behalf of the opposite party No. 2 on the other hand submits that there are concurrent findings recorded by the learned courts below and there are two victims in the case, the informant and his wife, who suffered grievous injury in as much as there were fractures in their limbs and at the stage of trial, informant of the case has expired, but other victim i.e. his wife has fully supported the prosecution case and the evidence is supported by the medical evidence given by the doctor who had treated them. Learned counsel submits that the impugned judgment of conviction are well reasoned judgment and the judgments of conviction do not call for any interference. Learned counsel however does not dispute the fact that present offence is the first offence of the petitioners and as per records of the case, the petitioner No. 1 is 72 years of age and the petitioner Nos. 2 and 3 are 50 years and 63 years respectively. The petitioners and the opposite party Nos. 2 and 3 are members of the same family and 27 years have elapsed from the date of incident. He also does not dispute that there is no minimum sentence as such prescribed under the offences for which the petitioners were convicted. The main allegation of assault is against petitioner No. 1 and not against the petitioner Nos. 2 and 3. Learned counsel submits that so far as modification of sentence is concerned, it is for the court to take a call, but in case this court decides to modify the sentence of the petitioners, then some victim compensation may be given.

8. Learned counsel appearing on behalf of the opposite party-State has supported the argument advanced on behalf of opposite party No. 2.

9. After hearing the learned counsel for the parties and considering the materials available on record, this court finds that present case arises out of G.R. Case No. 516 of 1994 and the petitioners were named accused on the basis of a written report

filed by the informant Dasu Gorain. The allegation against the petitioners was that the petitioner No. 1 had assaulted the informant and his second wife with lathi and other two petitioners had assaulted them with slap and fists. Further case of the prosecution was that as a result of such assault, the informant and his second wife received injury in their hands and legs and on the basis of F.I.R., the investigation was commenced and charge sheet was submitted under Section 325, 323/34 of the Indian Penal Code. Admittedly, during the course of trial, the informant of the case had expired and therefore he could not depose before the learned court below. However, second wife of the informant was examined as P.W. 2, who is also an injured witness. P.W. 2 had fully supported the prosecution case and she deposed that on the date and time of occurrence, her husband was levelling the land for making a suitable place for Khalihan and the petitioner No. 1 tried to stop him and on refusal he assaulted him with lathi. Further version of P.W. 2 is that when she went to save her husband, the accused also assaulted her with lathi and both of them got injured. The other two accused persons petitioner Nos. 2 and 3 have also assaulted her with slap and fists. She deposed that the other witness P.W. 1 was eye witness to the occurrence. He has also fully supported the prosecution case.

10. It was argued from the side of defence that the accused persons had purchased the khalihan from the first wife of informant and therefore there was land dispute between the parties. The incident has been fully supported by the injured witness. P.W. 2 and has been supported by the eye witness of the incident. The doctor has been examined and injury report has been exhibited as Exhibit-1 and Exhibit 1/1 which indicates that P.W. 2 had received compound fracture on her left leg and also multiple injuries on other parts of her body and her husband had received multiple injuries and out of which injury No. 1 and

injury No. 4 as mentioned in the injury report were grievous.

11. This court finds that the learned trial court discussed the evidences on record both oral and documentary and convicted the petitioners for offences under Sections 325/323/34 of the Indian Penal Code. Learned Appellate Court also scrutinized the evidences on record and upheld the conviction. This court finds that the oral evidence led by the witnesses including the injured witness is supported by the evidence of doctor and both the victims had suffered grievous injuries. However, the petitioner No. 1 is the person who had initiated the assault and petitioner Nos. 2 and 3 also participated in the occurrence. There is no illegality or perversity in the conviction of the petitioners as recorded by the learned trial court and upheld by the learned appellate court. However, the fact remains that the petitioner No. 1 is at present 72 years of age and the petitioner Nos. 2 and 3 are 50 years and 63 years of age respectively. The incident had happened around 27 years back and considering the advance age of the petitioners, this court is of the view that no useful purpose will be served by sending the petitioner No. 1 to jail after elapse of such a long time from the date of incident. It is further not in dispute that petitioners as well as informant party belong to the same family. It is not in dispute that the petitioners have remained in custody in connection with the offence for some time and the present offence is the first offence of the petitioners.

12. Accordingly, sentence of the petitioner No. 1 is modified and limited to the period already undergone by him in judicial custody with fine of Rs. 25,000/- to be deposited by the petitioner No. 1 before the learned court below within a period of three months from the date of communication of this order. So far as petitioner Nos. 2 and 3 are concerned, considering the facts and circumstances of this case and the role played by them in commission of offence coupled with the fact that they have

faced the rigorous of criminal case for a long time, this court is of the considered view that their sentences are also fit to be modified Accordingly, sentences of the petitioner no. 2 and 3 are directed to be limited to the period undergone by them in judicial custody with fine of Rs. 15,000/- each to be deposited by the petitioner Nos. 2 and 3 before the learned court below within a period of three months from the date of communication of this judgment.

13. In case of non-deposit of fine amount within the stipulated time frame, petitioners would serve the sentence as awarded by the learned court below.

14. It is further directed that fine amount so deposited by the petitioners would be remitted to the victim of the case Sahachari Gorain upon due identification and in case she does not survive, it may go to the legal heirs of opposite party No. 2.

15. This revision is disposed of with aforesaid observations and directions.

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

17. The lower court records be immediately sent to the court concerned.

18. Let this order be communicated to the court concerned through FAX/e-mail.

(Anubha Rawat Choudhary, J.) Binit/