Habebula Pawariya vs The State Of Jharkhand
2024 Latest Caselaw 1432 Jhar

Jharkhand High Court

Habebula Pawariya vs The State Of Jharkhand on 12 February, 2024

Author: Navneet Kumar

Bench: Navneet Kumar

                                 1          Cr. Appeal (SJ) No.503 of 2017




        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr. Appeal (SJ) No.503 of 2017

    (Against the Judgment of Conviction dated 16.01.2017 and order of sentence
    dated 17.01.2017 passed by the learned Additional Sessions Judge-I, Lohardaga
    in S.T. No.15 of 2013 / S.T. No.61 of 2013, arising out of Lohardaga (M) P.S.
    Case No.19 of 2012, corresponding to G.R. No.250 of 2012.)

        Habebula Pawariya                         ...     Appellant
                              Versus
        The State of Jharkhand                ...    Respondent
                               ---

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

---

        For the Petitioner         : Mr. Manoj Kumar Choubey, Advocate
        For the State              : Mr. Vishwnath Roy, Spl. P.P.

                          JUDGMENT DATED: 12.02.2024

This appeal is preferred against the Judgment of Conviction dated 16.01.2017 and order of sentence dated 17.01.2017 passed by the learned Additional Sessions Judge-I, Lohardaga in S.T. No.15 of 2013 / S.T. No.61 of 2013, arising out of Lohardaga (M) P.S. Case No.19 of 2012, corresponding to G.R. No.250 of 2012, whereby and whereunder, the appellant has been convicted under Section 365 of IPC and sentenced to undergo R.I. for five years and directed to pay a fine of Rs.25,000/- and in default of payment of fine, the appellant was further directed to undergo R.I. for six months.

2. The prosecution story arose in the wake of the complaint case No.56 of 2012 filed by the complainant Fulmait Khatoon (PW-1). Later on the said complaint case No. 56 of 2012 was forwarded to the Mahila Police Station, Lohardaga and the same was registered as Mahila P.S. Case No.19 of 2012 dated 02.07.2012 registered under Section 366/34 of IPC.

3. The gist of the allegations as set-out in the said complaint case / FIR is that the married daughter (victim) of the complainant / informant Fulmait Khatoon, PW-1 was working as labour in the  2 Cr. Appeal (SJ) No.503 of 2017

brick kiln owned by one Nasim Khan.

It was alleged that, 03 years ago, in the month of 'Baishakh', the accused persons in order to perform the marriage with Julekha Khatoon, kidnapped, her. The informant made hectic search of her daughter, but all in vain. In course of search of her daughter, she approached the father and mother of Habebula, who handed over a mobile to her to talk with Habebula. Habebula told the complainant that he as well as her daughter are working in a brick kiln and they are going to solemnize the marriage and will return back soon. There is no need to lodge the case and threatened that, if the matter will be reported to police, her daughter will be killed or will be sold. Thereafter, the complainant was under impression that her daughter will return back, but her daughter did not return. She tried her best to search her daughter but all in vain. On 20.03.2012, she was informed that her daughter is no longer in the world, so forget her.

On the basis of the complaint petition filed by on behalf of the complainant Fulmait Khatoon, CJM, Lohardaga sent the matter to P.S. concern U/s 156 (3) Cr.P.C. for institution and investigation of the case and accordingly, Lohardaga (M) P.S. Case No. 19/2012 dated 02.07.2012 U/s 366/34 IPC was registered and formal FIR was drawn up.

After investigation, the police submitted charge-sheet against above named accused Habebula Pawariya U/s 364, 365 r/w section 34 of IPC and a separate charge-sheet was submitted against the accused Jumrat Pawariya and Runuwa Pawariya.

Accordingly, cognizance for the said offence was taken by the then learned CJM, Lohardaga under the aforesaid sections of the IPC. The case was committed to the court of sessions vide separate commitment notification against the accused Habebula Pawariya, which was numbered as S.T. Case No. 15/2013 and the case against the accused Jumrat Pawariya and Runuwa Khatoon was numbered  3 Cr. Appeal (SJ) No.503 of 2017

as S.T. Case No. 61/2013. As both the cases arose out of common Lohardaga (M) P.S. Case No. 19/2012, they were amalgamated together for common trial vide order dated 04.09.2013.

4. On the basis of prosecution case, the charge was framed on 13.12.2013 U/s 364, 365 r/w section 34 IPC and the charges were read over and explained to the accused in Hindi, to which they pleaded not guilty and claimed to be tried and after conclusion of the prosecution evidence, the accused were questioned by the court U/s 313 Cr.P.C. and they denied their complicity in the crime and further stated that they have been falsely implicated in this case and the learned trial court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this Cr. Appeal (SJ) No.503 of 2017.

5. Heard Mr. Manoj Kumar Choubey, learned defence counsel appearing on behalf of the appellant and learned Special P.P. Mr. Vishwanath Roy, appearing on behalf of the State. Arguments advanced on behalf of the appellant

6. Learned defence counsel appearing on behalf of the appellant at the out-set submitted that the appellant does not want to argue this case on merit and as such, he is confining his argument on the point of sentence only.

It is submitted on behalf of the appellant that by the impugned judgment of conviction and order of sentence, the appellant has been convicted for the offence punishable under Section 365 of IPC and further he was sentenced to undergo R.I. for five years and to a fine of Rs.25,000/- under section 365 of IPC and in default of payment of fine, he was further directed to undergo R.I. for six months.

It is submitted that the learned court below has also directed that if the convict chooses to pay the fine, it shall be compensated to the parents of the victim and the period undergone by the accused  4 Cr. Appeal (SJ) No.503 of 2017

appellant under custody during the trial and investigation, shall be set off from the period of imprisonment imposed upon him.

It has further been submitted on behalf of the appellant that the incident has taken place as far back as in the year 2012 and this appellant is suffering the rigour of the criminal prosecution for about more than 10 years. Further, it is submitted on behalf of the appellant that the appellant has remained in jail from 01.09.2012 to 08.05.2015 in the pre-conviction period and from 16.01.2017 to 03.05.2017 in the post-conviction period and as such, the total custody is 02 years 11 months 24 days, i.e. about 03 years.

It has further been submitted that this appellant is ready to pay the fine amount by way of compensation in order to give it to the parents of the victim and it is urged on behalf of the appellant that instead of awarding the sentence of imprisonment, suitable sentence of fine may be imposed on appellant in order to give it to the parents of the victim by altering the sentence of imprisonment of fine. Arguments advanced on behalf of the State

7. On the other hand, the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that the appellant has been convicted for the heinous offence punishable under Section 365 of Indian Penal Code and the victim is still traceless. It has further been submitted that the victim was a married woman and she was working in the brick kiln and the appellant has been convicted for her kidnapping under Section 365 of Indian Penal Code and therefore the appellant does not deserve any leniency in awarding the sentence.

Further it is submitted on behalf of the State that since the appellant did not argue this case on merit and therefore the conviction for the offence punishable under Section 365 of Indian Penal Code be uphold but did not controvert the fact that the appellant has already remained in jail for about three years i.e.  5 Cr. Appeal (SJ) No.503 of 2017

(02 years 11 months and 24 days).

Appraisal & Findings

8. Having heard learned counsels the parties, perused the records of this case including the lower court records.

9. At the outset, learned counsel appearing on behalf of the appellant submitted that the appellant does not want to argue this case on merit and as such he is confining his argument on the point of sentence.

10. It appears that the appellant has been convicted for the offence punishable under Section 365 of IPC and he was sentenced to undergo R.I. for five years and directed to pay a fine of Rs.25,000/- and in default of payment of fine, the appellant was further directed to undergo R.I. for six months.

11. Since the appellant does not want to argue this case on merit, this Court upholds the judgment of conviction passed by the learned Additional Sessions Judge-I, Lohardaga in S.T. Case No.15 of 2013 and S.T. Case No.61 of 2013 against the appellant for the offence punishable under Section 365 of IPC.

12. So far as the sentence is concerned, it is found that this appellant has remained in jail for about 02 years 11 months and 24 days. It further appears that the incident has taken place about 12 years back in the year 2012 and this appellant is suffering with trauma and miseries of criminal prosecution for such a long period of time. There is nothing on record to show about criminal history of the appellant. Further, it also appears from the record that the victim was a married woman and she was working in the brick kiln along with appellant and it has come in the evidence that the victim was a divorcee and she was working as labour in the brick kiln owned by one Nasim Khan. Further it is found that the appellant is ready to pay the adequate fine amount by way of compensation in order to give it to the parents of the victim.

 6 Cr. Appeal (SJ) No.503 of 2017

13. In view of the aforesaid facts and circumstances of this case, it is found that no useful purpose would be served in sending the appellant again in jail as he has already remained in jail for about three years out of the maximum punishment of five years and he is ready to pay the fine amount.

14. Accordingly, the order of sentence dated 17.01.2017 passed by the learned Additional Sessions Judge-I, Lohardaga in S.T. No.15 of 2013 / S.T. No.61 of 2013, arising out of Lohardaga (M) P.S. Case No.19 of 2012, corresponding to G.R. No.250 of 2012 is hereby altered and the appellant is awarded to a sentence of imprisonment for the period already undergone by him and further sentenced to a fine of Rs.50,000/- (Rupees Fifty Thousands only) by way of compensation in order to give it to PW-1 Fulmait Khatoon and PW - 2 Saheda Pawariay (parents of the victim).

15. Since, the appellant Habebula Pawariya is on bail and, therefore, a period of four months' time is given to the appellant from today to make payment of fine of Rs. 50,000/-(Rupees Fifty Thousand Only) by way of compensation in order to give it to the PW-1 Fulmait Khatoon and PW -2 Saheda Pawariay (parents of the victim).

16. In case of the default of payment of fine amount of Rs. 50,000/- (Rupees Fifty Thousand Only) by way compensation so awarded by this Court within the stipulated period of time, the appellant shall undergo rigorous imprisonment for a period of two years.

17. 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 appellant, he will serve the sentence as awarded in case of default of payment of fine so awarded by taking all necessary measures as per the provisions of law to ensure that the appellant serves the sentence of imprisonment in case of default of payment of fine.

 7 Cr. Appeal (SJ) No.503 of 2017

18. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and he shall be discharged from the liabilities of bail bonds accordingly.

19. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the parents of the victim namely PW-1 Fulmait Khatoon and PW -2 Saheda Pawariay and on their appearance, the said fine amount, if so deposited by the appellant, shall be disbursed to them.

20. In case, if the said parents of victim is not traceable or not available or not found at the given address, or do not present before the Court after the notice, the same shall be disbursed to the close or near relatives or kith and kin of the said PW-1 Fulmait Khatoon and PW -2 Saheda Pawariay (parents of the victim) 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), Lohardaga, if required.

21. Accordingly, this appeal is dismissed with modification in order of sentence.

22. Let a copy of this Judgment along with Lower Court Record be sent back forthwith to the concerned court below for its compliance in letter and spirit.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 12.02.2024/NAFR R.Kumar/-