Jharkhand High Court
Gunj Bihari Mukhiyar vs The State Of Jharkhand on 6 February, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 720 of 2017
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1. Gunj Bihari Mukhiyar
2. Sanjay Mukhiyar .... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Ms. Apoorva Singh, Advocate
For the State : Mr. Shiv Shankar Kumar, A.P.P.
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Order No. 03 / Dated: 6th February, 2024
Heard learned counsel appearing on behalf of the appellants and the
learned A.P.P. appearing on behalf of the State.
2. This appeal is directed against the Judgment of conviction and order
of sentence both dated 25.03.2017 passed by the Court of learned Additional
Judicial Commissioner-VIII, Ranchi, in Sessions Trial No. 721 of 2009,
whereby and whereunder the appellants have been convicted for the offence
punishable under Section 34 read with 338 of the Indian Penal Code and
sentenced to undergo Rigorous Imprisonment for the period of 1 year and all
the sentences have been directed to run concurrently with a further direction
that the period already undergone by the convicts during the trial and
investigation shall be set off.
3. The prosecution story is based on a written complaint made by the
informant that on 30.10.2007 both the appellants alongwith some another
person (since deceased) assaulted him with the intention to commit murder
and subsequently the daughter of the informant sustained injuries and she
was seriously injured and thereafter she was taken to RIMS for her
treatment. It has further been alleged that when the informant went to the
police station to lodge the case the same was denied and then he filed the
complaint case in the Court of learned Chief Judicial Magistrate, Ranchi on
17.11.2007 which was numbered as 2058 of 2007, for the offence committed
under Sections 323, 325, 307, 34 and 504 of the Indian Penal Code.
4. Further it is found that thereafter F.I.R. No. 50 of 2007 dated
27.12.2007 was registered against the appellants and after completion of the
investigation the charge-sheet was submitted under Sections 337, 338 and
307 of the Indian Penal Code against the aforesaid two appellants' alongwith
Cr. Appeal (S.J.) No. 720 of 2017
one co-accused (Samla Mukhiyar (Since deceased).The learned Trial Court
after conducting the full-fledged trial passed the impugned judgement of
conviction and order of sentence which is under challenge.
5. Learned counsel appearing on behalf of the appellants submitted that
she does not want to argue this case on merit and therefore, she has confined
her argument only on the point of sentence.
6. It is submitted on behalf of the appellants that both the appellants have
been convicted for the offence punishable under Section 338 of the Indian
Penal Code read with Section 34 of the Indian Penal Code and they were
sentenced to undergo rigorous imprisonment for one year.
7. It is submitted on behalf of the appellants that it is admitted case of
the prosecution that both the parties are on inimical terms because there was
a land dispute between them. Further it has been pointed out that no
independent witness has been examined and the two independent witnesses
i.e. P.W.-2 and P.W.-3 have been declared hostile as they have not supported
the case of the prosecution. Further, it has been submitted that it is a very old
case and the incidence has taken place in the year 2007 and both the
appellants have been suffering the rigour of criminal case for a very long
time i.e. for about more than sixteen years and therefore, a lenient view may
be taken in awarding the sentence and instead of sentence of imprisonment,
the sentence of fine may be imposed by setting aside the order of sentence
passed by the learned Court below.
8. On the other hand the learned A.P.P. appearing on behalf of the State
have opposed the contentions raised on behalf of the appellants and
submitted that both the appellants have been convicted for the offence
punishable under Section 338 read with Section 34 of the Indian Penal Code
and they have been sentenced to imprisonment for one year and there is no
illegality in the impugned judgement of conviction and order of sentence and
there is no legal point of interference in the impugned judgement of
conviction and order of sentence.
9. Further, the learned A.P.P. appearing on behalf of the State did not
controvert this fact that both the appellants have no criminal history as per
the records of the case and since the appellants have confined their argument
Cr. Appeal (S.J.) No. 720 of 2017
only on the point of sentence, therefore, a suitable order on the point of
sentence may be passed.
10. Having heard the parties, perused the records of this case including
the Lower Court Records.
11. In view of the aforesaid submissions advanced on behalf of the
parties, it is found that both the appellants have been convicted for the
offence punishable under Section 338 read with Section 34 of the Indian
Penal Code and since the appellants do not want to argue this case on the
point of conviction and they have confined their argument only on the point
of sentence therefore, this Court upholds the judgement of conviction passed
by the learned Court below and accordingly the judgement of conviction
dated 25.03.2017 passed by the learned Court below for the offence
punishable under Section 338 read with Section 34 of the Indian Penal Code
is hereby upheld.
12. So far as sentence is concerned, it is found that there is nothing on the
record to show about the criminal history of the appellants. Further, it is also
found that there is a land dispute between both the parties. It is also found
from the record that the incidence has taken place as far back as in the year
2007 and over a period of time both the appellants have reached to their
middle age.
13. Having taken into consideration the aforesaid facts, it is found that the
purpose of justice would be served if both the appellants are sentenced to
fine and no sentence of imprisonment is imposed as no useful purpose would
be served in sending them to jail. Appellant No. 1, Gunj Bihari Mukhiyar is
about 62 years and appellant No. 2, Sanjay Mukhiyar is about 57 years and
therefore, the purpose of justice would be meeted out if the sentence is
confined only to the sentence of fine.
14. Accordingly, the order of sentence dated 25.03.2017 imposed by the
learned Court below is hereby set aside and the same is altered by imposing
a sentence of fine to a sum of Rs.1,000/- (Rupees one thousand) to each of
the appellants.
15. Since both the appellants are on bail and therefore, two months' time
is allowed to both the appellants to deposit the aforesaid fine and in default
Cr. Appeal (S.J.) No. 720 of 2017
of payment of fine they are directed to undergo rigorous imprisonment for
one year. The appellants may deposit the fine amount through the Nazarat of
the concerned Civil Court in order to give it to the informant P.W.-1,
Dhananjay Mukhiyar, by way of compensation.
16. The learned trial court is directed to ensure that the said fine amount is
deposited within the stipulated period of time and if the same is not
deposited by the appellants, then they will serve the sentence as awarded in
case of default of payment of fine, by taking all necessary measures as per
the provisions of law to ensure that the appellants serves the sentence of
imprisonment in case of default of payment of fine.
17. The appellants may be allowed to deposit the said fine amount
through the Nazarat of the concerned Civil Court. At the moment the
appellants deposits the fine amount, they (the appellants) shall be released
forthwith on deposit of the said fine amount and they shall be released and/
discharged from the liabilities of bail bonds accordingly. The learned Court
below is also directed that on deposit of the said fine amount by the
appellants, the notice shall be sent to the P.W.-1, Dhananjay Mukhiyar, and
on his appearance the said fine amount, if so deposited by the appellants,
shall be disbursed to him. In case, if the said victim (P.W.-1) is not traceable
or not available or not found at the given address, or does not appear before
the Court, the same shall be disbursed to the close or near relatives or kith
and kin of the said victim/informant Dhananjay Mukhiyar (P.W.-1), as the
concerned learned trial Court may deem fit and proper, and in this regard the
Court concerned may also involve the Para Legal Volunteer (PLV) of District
Legal Services Authority (DLSA), Ranchi, if required.
18. Accordingly, this appeal is dismissed with modification in the order of
sentence as above.
19. Let the Lower Court Records and a copy of this judgement be also
transmitted to the learned Court below for its compliance in letter and spirit.
D.S./J.Minj (Navneet Kumar, J.)
