Jharkhand High Court
Gorka Paswan vs The State Of Jharkhand on 16 September, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.993 of 2012
1. Gorka Paswan
2. Jamun Paswan, Both S/o Chintamani Paswan
3. Jitendra Paswan, S/o Gambhir Paswan
4. Tumpa Paswan, S/o Jago Paswan
5. Pampu Paswan @ Papu Paswan, S/o Chentamani Paswan
6. Rampu Paswan @ Rumpa Paswan, S/o Jago Paswan
7. Sukhdeo Paswan, S/o Bhutka Paswan
8. Sangma Paswan, S/o Tika Paswan
All residents of Village-Kalipur,
P.O. & P.S.-Jasidih, District-Deoghar ... Petitioners
Versus
1. The State of Jharkhand
2. Punnu Das, S/o Late Gorhan Das
R/o Village-Kalipur, P.O. & P.S.-Jasidih,
Dist.-Deoghar ... Opposite parties
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CORAM: Hon'ble Mrs. Justice Anubha Rawat Choudhary
---
For the Petitioners : Mr. Radha Krishna Gupta, Advocate
For the Opp. Parties-state : Mr. Shailesh Kumar Sinha, A.P.P.
Through:Video Conferencing
15/16.09.2021 Heard Mr. Radha Krishna Gupta, learned counsel
appearing on behalf of the petitioners.
2. Heard Mr. Shailesh Kumar Sinha, learned counsel
appearing on behalf of the opposite party-State.
3. The present petitioner is directed against the order dated
19.10.2012 passed in Cr. Appeal No.92 of 2006 by learned Court
of 1st Additional Sessions Judge, Deoghar, in connection with
G.R. Case No.183 of 2003, corresponding to T.R. No.382 of 2006.
4. The petitioners were convicted and sentenced vide
judgment dated 31.05.2006 passed by learned Judicial Magistrate,
1st Class, Deoghar, in G.R. Case No.183 of 2003, corresponding to
T.R. No.382 of 2006, by which,
a. each of the petitioners were convicted for the offence under
Sections 147, 148, 323 and 448 of IPC;
b. the petitioner Nos.1 and 4 were convicted for the offence
under Section 325 of IPC, and,
c. the petitioner Nos.1, 2, 4 & 5 were convicted for the offence
under Section 354 IPC.
5. The learned trial court sentenced each of the petitioners to
undergo -
a. R.I. for a period of six months for offence under Section
323 of IPC;
b. R.I. for two years for offence under Section 448 of IPC;
c. R.I. for two years for offence under Section 148 of IPC
and
petitioner Nos.1 and 4 were sentenced to undergo R.I. for two
years and to pay a fine of Rs.1,000/- for offence under Section
325 of IPC;
petitioner nos.1, 2, 4 & 5 were sentenced to undergo R.I. for one
year for offence under Section 354 of IPC and all the offences
were directed to run concurrently.
6. So far as the learned appellate court is concerned, the
appellate court was of the view that the prosecution has
succeeded in proving the charge for-
a. offence under Section 148, 323 and 448 against all the
petitioners;
b. additionally for offence under Section 325 of IPC, only
against petitioner No.4
c. additionally for offence under Section 354 of IPC against
the petitioner No.1.
7. The learned appellate court acquitted the petitioner no.1
for offence under Section 325 of IPC and acquitted the petitioner
Nos.2, 4 and 5 for offence under Section 354 of IPC and
accordingly modified the conviction of the petitioners.
Consequently, the appellate court convicted the petitioner No.4
for offence under Sections 148, 323, 325 and 448 of IPC; petitioner
No.1 for offence under Sections 148, 323, 448, 354 of IPC and rest
of the petitioners for offence under Sections 148, 323 and 448 of
IPC and consequently, the appellate court modified the sentence
also.
8. Petitioner No.4 was sentenced to undergo R.I. for two
months for offence under Section 323 of IPC, R.I. for three
months, for offence under Section 148 of IPC, R.I. for two months
for offence under Section 148 IPC and R.I. for four months and
fine of Rs.1,000/- for offence under Section 325 of IPC with
default sentence to undergo R.I. for one month;
Petitioner No.1 was sentenced to undergo R.I. for two months
for offence under Section 323 of IPC, R.I. for three months for
offence under Section 148 IPC, R.I. for two months for offence
under Section 448 of IPC and R.I. for two months for offence
under Section 354 of IPC.
Rest of the petitioners were sentenced to undergo R.I. for two
months for offence under Section 323 of IPC, R.I. for three
months for offence under Section 148 IPC and R.I. for two
months for offence under Section 448 of IPC.
9. From perusal of the records of this case, it appears that the
present case was admitted vide order dated 10.07.2015 and it was
clearly recorded that the present criminal revision application
will be heard on limited question of sentence only. It further
appears from the order dated 10.07.2015, that a submission was
made that petitioners nos. 1 to 4 & 6 to 8 had surrendered before
learned court below on 16.05.2015 and petitioner No.5 had
surrendered on 20.06.2015 and since then, they were in custody.
However, vide order dated 10.07.2015, the petitioners were
directed to be released on bail.
10. It appears from the lower court record that after passing the
bail order by this Court, the petitioners had furnished their bail
bond on 15.07.2015. Thus, it appears that the petitioners, except
petitioner no.5, have completed two months custody and
accordingly petitioners, except petitioner no.5, have already
served the sentence for offence under Section 323 of IPC as well
as for offence under Section 448 IPC and the petitioner no.1, who
has been convicted for offence under Section 354 of IPC, has also
served the sentence under the said section. The concerned
petitioners, who have been sentenced under Section 448 of IPC
have also served the sentence of two months.
11. What remains is petitioner No.4 who has served two
months, out of three months for offence under Section 148 IPC
and two months out of four months for offence under Section 325
of IPC and he has been asked to pay a fine of Rs.1,000/-.
Petitioner No.1 has served two months out of three months for
offence under Section 148 of IPC and petitioner Nos.2, 3, 6, 7 & 8
have served two months out of three months for offence under
Section 148 of IPC.
12. So far as petitioner No.5 is concerned, he has remained in
custody from 20.6.2015 till 15.07.2015 and has not completed any
of the sentences for offence, for which he has been convicted for
two months for offence under Section 323 of IPC for three
months under Section 148 of IPC and for two months under
Section 448 IPC.
13. Learned counsel has vehemently submitted that although
there are concurrent findings recorded by the learned court
below so far as the conviction of the petitioner under which their
conviction has been sustained by the appellate court, but some
sympathetic view may be taken in view of the fact that the
alleged offence is of the year 2003 and more than 18 years have
elapsed from the date of incident. He has submitted that the
sentences of the respective petitioners under the offence, for
which they have not yet completed the sentence, may be limited
to the petitioner already undergone by them in judicial custody
and if found proper, some fine may be imposed.
14. The learned counsel for the state has opposed the prayer.
However, he has submitted that it is for the court to take a call in
the matter of sentence. The learned counsel has also submitted
that there is no illegality or perversity in the impugned orders of
conviction and the case was admitted for consideration only on
the point of sentence.
15. As per the prosecution case, on 19.03.2003 in evening the
informant Tunnu Das along with his family members was
celebrating festival of Holi and at that time petitioner Gorka
Paswan, Jamun Paswan, Jitendra Paswan, Tumpa Paswan and
Jago Paswan came and entered in the house of informant and
forcibly gave colour at body of sister of informant and on protest
by sister of informant these appellants threw her on earth and
pulled her Sari and beated her and on noise women of village
assembled and then accused / petitioners fled away from there.
Then after passing sometime on that day, all above named
accused being member of unlawful assembly and armed with
axe, farsa, lathi came and entered in the house of informant and
beated informant and other. Petitioner Gorka Paswan gave axe
blow at the head of informant causing injury on his head and
then informant fell down. Petitioner Jamun Paswan hit the sister
of informant and the wife of Raju Das namely Pramila Devi by
lathi near their eye causing injury. Petitioner Jitendra Paswan hit
Manendra Paswan by iron rod at his hand causing swelling in
hand. Petitioners Tumpa, Pampu, Rumpa, Sangma and Sukhdeo
Paswan beated others by means of lathi and stick causing injuries
to other person and when the neighbour of informant came, the
accused / petitioners fled away from there. Thereafter the
villagers brought informant and others at Police Station.
16. The case was registered as Jasidih P.S case no. 49 of 2003.
After investigation, I.O. of the case submitted charge sheet u/s
341, 323, 324, 307, 354 and 34 of IPC and accordingly cognizance
was taken. Charges u/s 147, 148, 323, 324, 448 and 354 of IPC
were framed against all petitioners and their statement was also
recorded u/s 313 of Cr.P.C. During trial, no evidence was
produced by petitioners in court below in their defence. In court
below in order to prove charges, oral and documentary both
evidences were produced on behalf of prosecution. The court
below considering oral and documentary evidences of
prosecution, convicted and sentenced the petitioners by
aforesaid impugned order.
17. In order to prove the prosecution case, altogether nine
witnesses were examined on behalf of prosecution and Ext. 1 to 3
were produced as documentary evidence. PW - 9 Lal Kishun
Ram is I.O. of the case, P.W. -7 Dr. Dhanwantari Tiwary is
doctor, P.W. 8 Punu Das is informant of the case, P.W. 1 Pramila
Devi, P.W. - 2 Mohini Devi, P.W. 3 Kunti Devi, P. W. 4 Raju Das,
P.W. 5 Binod Das and P.W. - 6 Soni Devi are witnesses on the
fact. Ext. 1, 1/1, 1/2, 1/3, 1/4 and 1/5 are injury reports of Punu
Das, Mahendra Das, Pramila Devi, Soni Devi, Mohini Devi and
Kunti Devi, respectively. Ext. 2 and 2/1 are signatures of Punu
Das and Raju Das on petition of informant for lodging FIR. Ext. 3
is formal FIR; Ext. 3/1 is endorsement on petition of informant
for lodging FIR.
18. After considering the materials on record, the learned trial
court convicted the petitioners for the offences as mentioned
above. The learned appellate court also considered the evidences
on record and partly interfered with the conviction as well as the
sentences. The learned appellate court recorded its findings,
interalia, as under: -
" P.W-1,2,3,4,5,6 and 8 who are witnesses on fact of
occurrence and they in their statements have proved that, at the
time of occurrence, all above named accused came at the house of
informant being member of unlawful assembly and armed with
lathi, axe and rod and entered in house of informant and beated
Punu (Informant), Soni Devi, Pramila, Kunti, Mohini and
Mahendra causing simple injury on their body. The witnesses of
prosecution have not told that and at the time of occurrence
accused / petitioner Gorka hit Kunti to cause injury on her body,
but informant (P.W.-8) told that, petitioner Tumpa hit Kunti on
her hand by lathi causing fracture on her hand. Further victim
Soni in her statement has clearly told that only Gorka on pretext
of giving colour on occasion of Holi, tore her saree and blouse
and outraged her modesty, and other petitioner according to her
did not outrage her modesty. Thus, on careful consideration of
evidences of prosecution, I find that in court below the
prosecution has succeeded to prove charge of offence u/s 148,
323, and 448 of IPC against all petitioners and they are guilty for
these offences and u/s 325 of IPC against only appellant Tumpa
and he is guilty for this offence, and u/s 354 of IPC against only
petitioner Gorka and he is guilty for this offence. But prosecution
has not succeeded to prove charge of offence u/s 325 of IPC
against petitioner Gorka and he is not guilty for this offence. The
prosecution has also not succeeded to prove charge of offence u/s
354 of IPC against petitioner Jamun, Tumpa and Pampu and they
are not guilty of this offence. Therefore, I find that the aforesaid
impugned order regarding conviction of petitioners requires
modification. Therefore, the aforesaid impugned order regarding
conviction of petitioners is hereby modified and petitioner Tumpa
is convicted for offence u/s 148, 323, 325 and 448 of IPC.
Petitioner Gorka is convicted for offence u/s 148, 323, 448 and 354
of IPC and rest above named petitioners namely Jamun Paswan,
Jitendra Paswan, Rumpa Paswan, Sukhdeo Paswan, Sangma
Paswan and Pampu Paswan are convicted for offence u/s 148,
323 and 448 of IPC. "So far as the sentences are concerned, they
were also modified by the learned appellate court as already
mentioned above.
19. This court finds that the impugned judgement passed by the
learned appellate court calls for no interference in revisional
jurisdiction of this court. No illegality, perversity or material
irregularity has been pointed out by the learned counsel for the
petitioners. Accordingly, conviction recorded in appellate court's
judgment is upheld.
On the point of sentence
Petitioner no. 1
20. Considering the facts and circumstances of the case, the
sentences so far as petitioner No.1 Gorka Paswan is concerned, he
has been convicted by the learned court below not only under
Section 323, 448 and 148 of IPC, but also under Section 354 of IPC
and though he has served the sentences for the offence under
Sections 323, 448 and 354 of IPC by remaining in custody for a
period of two months, but the sentence under Section 148 IPC is
for a period of three months.
Considering the nature of allegation and the manner in which,
the offence has been committed, which apparently shows that
the same was initiated at the instance of the petitioner No.1, this
Court is not inclined to grant any relief to the petitioner No.1.
Petitioner no. 4
21. So far as petitioner No.4 is concerned, he has been
convicted for the offence under Sections 323, 448, 148 & 325 of
IPC. He has served the sentences for offences under Sections 323
and 448 of IPC by remaining in custody for a period of custody
of two months, but the sentence under Sections 148 and 325 of
IPC are for a period of three months and four months
respectively.
Considering the totality of facts and circumstances of this case
and specific allegation against the petitioner No.4, who was
armed with sharp cutting weapon and had assaulted and
consequently was convicted under Section 325 of IPC, this Court
is not inclined to grant any relief to the petitioner No.4 and
accordingly his case, is dismissed. He has also been inflicted
with a fine of Rs.1,000/- by the learned court below.
22. So far as petitioners Nos.2, 3, 6, 7 & 8 are concerned, they
have been convicted for the offences under Sections 148, 323 and
448 of IPC and they have remained in custody for two months
and have served their sentences for offences under Sections 323
and 448 IPC, but the sentence under Section 148 IPC, which a for
a period of three months, has not yet been completed.
23. Considering the fact that the present offence is of the year
2003 and there appears to be no criminal antecedent of these
petitioners, this Court is of the view that the sentences of these
petitioners are required to be modified to some extent.
24. Accordingly, the sentence of petitioner No.2, petitioner
No.3, Petitioner No.6 is modified and is limited to the period
already undergone by them in judicial custody with fine of
Rs.10,000/- each for offence under Section 448 of IPC. The fine
amount is directed to be deposited within a period of four
months from the date of communication of copy of this
judgment. In case of non-deposit of the fine amount, their bail
bond of these petitioners will be cancelled and they will serve the
sentence already imposed by the learned Court below. In case of
deposit of the fine amount within the stipulated time frame,
these petitioners as well as bailers of these petitioners will be
discharged from liability of bail bonds.
25. So far as petitioners Nos.7 & 8 are concerned, their case
stands on similar footing as that of petitioners Nos. 2, 3 & 6 with
additional point that they are in advance stage of their life, in as
much as petitioner No.7 appears to be of 70 years of age and
petitioner No.8 is of 63 years of age.
26. Accordingly, their sentences are modified and confined to
the period undergone by them in judicial custody in connection
with the present case with fine amount of Rs.5,000/- each, which
is to be deposited before the learned court below within a period
of four months from the date of communication of this
Judgment. In case of non-deposit of the fine amount, they will
serve the sentences as imposed by learned court below.
Petitioner No.5
27. So far as petitioner No.5 is concerned, he has remained in
custody for a period of 20 days during the pendency of the
present revision application and so far as the offence is
concerned, he also appears to have been convicted for the
offences under Sections 148, 323 and 448 of IPC with sentences of
three months, two months and two months respectively. The
other similarly situated persons have served the sentence for two
months and he has served the sentence only for a period of 20
days.
28. Considering the aforesaid aspect of the matter, the
sentence of the petitioner No.5 is modified and reduced to the
period of two months for each of the offences under Sections 148,
323, and 448 of IPC and the sentences are directed to run
concurrently with fine of Rs.10,000/- for offence under Section
148 of IPC, which is to be deposited by him within a period of
four months before the learned court below from the date of
communication of the present judgment. In case of non-deposit
of the fine amount, he would serve the remaining sentences as
awarded by learned court below.
29. Consequently, the present revision application, so far it
relates to petitioner No.1 and 4, is hereby, dismissed.
So far as it relates petitioners Nos. 2, 3, 5, 6, 7 & 8 are concerned,
the same is disposed of with modification of sentence.
30. The bail bond furnished by the petitioners Nos. 1, 4 & 5 are
hereby cancelled.
31. This revision petition is disposed of in the aforesaid terms.
32. Pending interlocutory application, if any, is dismissed as
not pressed.
33. Let the lower court records of this case be sent back to the
court concerned.
34. Let this order be communicated to the learned court below
through FAX, e-mail.
(Anubha Rawat Choudhary, J.)
R.Kumar/
Petitioner Petitioner Name Conviction under section
No.
1. Gorkha Paswan Two month for u/s 323, 448,
Three Month for u/s 148, Two
Month for u/s 354
2. Jamun Paswan Three Month for u/s 148, Two
Month for u/s 323, Two Month
for u/s 448
3. Jitendra Paswan Three Month for u/s 148, Two
Month for u/s 323, Two Month
for u/s 448
4. Tumpa Paswan Two Month for u/s 323, Three Rs/-1000/-fine
Month for u/s 148, four Month
for u/s 325, Two Month for u/s
5. Pampu Paswan Three Month for u/s 148, Two
Month for u/s 323; TwWo
Month for u/s 448
6. Rampu Paswan Three Month for u/s 148, Two
Month for u/s 323, Two Month
for u/s 448
7. Sukhdeo Paswan Three Month for u/s 148, Two
Month for u/s 323, Two Month
for u/s 448
8 Sangam Paswan Three Month for u/s 148, Two
Month for u/s 323, Two Month
for u/s 448
Petitioner No.5 Period already undergone with fine of
Rs.15,000/-
Petitioner No.1 Under Section 148 of IPC, with fine of
Rs.1,000/-
Rest of the petitioners Under Section 148 with fine of
Rs.1,000/-
Petitioner No.1 Under Section 325 IPC, confined the
sentence.
Petitioner No.1, 2,3,6,7 & 8 Period already undergone with fine of
Rs.1,000/- under Section 148 IPC
Petitioner No.4 No interference
Petitioner No.5 Period already undergone under
Section 148 IPC, period already
undergone under Section 323, period
already undergone under Section 448
with fine of Rs.15,000/-
