Birendra Kherwar Vs State of Jharkhand

2026:JHHC:16884

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 553 of 2008

[ Against the Judgment of conviction dated 06.03.2008 and Order of sentence dated 12.03.2008 passed by learned Additional Sessions Judge, F.T.C.-I, Gumla in Sessions Trial (Split) Case No. 32 of 2002 ].

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Birendra Kherwar, Son of Kanun Kherwar, resident of Village – Nindi, P.S. – Senha, District – Lohardaga.

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… … Appellant

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Versus The State of Jharkhand … … Respondent

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….. For the Appellant : Mr. Baleshwar Yadav, Advocate. For the Respondent : Mrs. Priya Shrestha, Spl.P.P.

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….. P R E S E N T

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT

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Dated 11^th June, 2026

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By Court: Heard Mr. Baleshwar Yadav, learned counsel for

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the appellant and Mrs. Priya Shrestha, learned Spl.P.P. appearing for the State.

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2. Above named appellant has preferred this criminal appeal challenging the judgment of conviction dated 06.03.2008 and order of sentence dated 12.03.2008 passed by learned Additional Sessions Judge, F.T.C.-I, Gumla in Sessions Trial (Split) Case No. 32 of 2002, whereby and whereunder, the appellant has been held guilty for the offence under Sections 395 and 412 of the I.P.C. and sentenced to undergo R.I. for seven years along with fine of Rs. 5,000/- under Section 395 of the

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I.P.C. with default stipulation. There is no separate sentence for the offence under Section 412 of the I.P.C.

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FACTUAL MATRIX

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3. The factual matrix giving rise to this appeal in a narrow compass is that the informant Jageshwar Lohar on 17.10.2001, in the night at about 9:30 p.m., after taking meal was sleeping in the home and his father, at that time, had gone to attend meeting. In the meantime, 6-7 unknown persons towards cattle shed passing through gallery entered in his room and started fisting and kicking. Thereafter, they had taken away one radio black in colour of Santosh Company, a torch of Jeep Company, a red printed saree, one Lungi, two shirts, two goats and five hens. The miscreants after that locked the room from outside.

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It is further alleged that when the dacoits left the place, the informant by removing the earthen tiles came out and reported the villagers about the occurrence, then in the next morning at 5:00 A.M., he along with villagers started searching the miscreants and following their footsteps informant side reached to power house of Nindi within Senha P.S. where it was seen by them that till then, the dacoits after eating the meat of looted goats were dividing the looted articles and seeing the informant came there along with

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villagers, the dacoits started fleeing and during course of chase two of them namely, Birendra Kherwar (appellant) and Budheswar Kherwar were apprehended. They disclosed the name of other coaccused, who managed to flee away namely, Sawla Kherwar, Birbal Oraon, Sahrang Oraon, Sukra Oraon, Mani Oraon and Bishwanath Oraon. The looted articles were recovered from the possession of dacoits caught hold. The apprehended persons on the spot had sustained injuries.

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4. On the basis of fardbeyan of informant, FIR being Bishunpur P.S. Case No. 39 of 2001 was registered against eight accused persons for the offence under Sections 395, 397 and 412 of the I.P.C.

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5. After completion of investigation, charge sheet was submitted against altogether seven accused persons showing one Birbal Oraon as absconder, thereafter the cognizance of the offence was taken under the aforesaid sections and the case was committed to the court of Sessions. The appellant before recording his statement under Section 313 of Cr.P.c. along with co-accused Budheshwar Kherwar become absentee and as such, their bail bonds got cancelled and on due course of law, both were declared absconder on 09.07.2003.

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6. The trial court in terms of judgment dated 20.10.2003 held the remaining four other accused guilty for the offence under Section 395 of the I.P.C., as during trial due to death of accused Bishwanath Oraon, the proceeding against him was dropped.

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7. Against the judgment of conviction and order of sentence, the other four convicts had preferred the appeal before the Hon’ble High Court, which was allowed vide judgment dated 29.10.2007 in Cr. Appeal (S.J.) No. 1596 of 2003.

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8. The appellant on the strength of permanent warrant of arrest has been produced on 26.08.2006 and his statement under Section 313 of the Cr.P.C. had been recorded, wherein he claims to be innocent and of false implication.

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9. In order to substantiate the charges leveled against accused, altogether 08 witnesses were examined by the prosecution. Apart from oral evidence of ocular witnesses, several documentary evidences were also adduced.

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10. The plea of defence was that the accused persons are innocent and have committed no offence at all and have been falsely implicated in this case. However, no oral or documentary evidence has been adduced by the defence.

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11. The learned trial court, after evaluating the evidence available on record, held the appellant guilty for the offence under Sections 395 and 412 of the I.P.C. and sentenced as stated above.

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12. Learned counsel for the appellant has submitted that the appellant has already undergone more than 4½ years custody, out of seven years R.I. imposed upon him. It is further submitted that the occurrence is of the year 2001 and the appellant has undergone agony of trial for almost two decades and has been sufficiently punished for his guilt. The appellant has no criminal background and has never been convicted. It is his first offence. It is further submitted that in a separate trial, other four coaccused have been acquitted from the charge under Sections 397 and 412 of the I.P.C. while convicted under Section 395 of the I.P.C. and later on, in an appeal before the Hon’ble High Court, the co-accused have been acquitted from the charges levelled against them vide judgment dated 29.10.2007 in Cr. Appeal (S.J.) No. 1596 of 2003. Therefore, the sentence of the appellant may be reduced to the extent of imprisonment already undergone by him.

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13. On the other hand, learned Spl.P.P. has defended the impugned judgment of conviction and order of sentence on merits.

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14. It appears that the first information report was lodged in the year 2001 for the offence under Sections 395, 397 and 412 of the I.P.C., but the learned trial after proper appreciation of the evidence has convicted the appellant for the offence under Sections 395 and 412 of the I.P.C. The appellant has suffered agony of trial for more than two decades. It further appears that out of sentence of R.I. of seven years, the appellant has undergone custody of more than 4½ year i.e. more than half of the sentence. It further appears that co-accused of the same occurrence have been acquitted from the charges leveled against them vide judgment dated 29.10.2007 passed by Hon’ble High Court in Cr. Appeal No. 1596 of 2003.

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15. It further appears that P.W.-7-Jogeshwar Lohra (informant) is the eye-witness of the occurrence, who during dacoity sustained injury committed by the miscreants. He has supported the prosecution story that when in course of search, he along with villagers went to Nandi Power House had seen the dacoits dividing the looted articles of his house. The appellant along with another was apprehended from that spot while other managed to flee away. The looted articles were recovered from the apprehended dacoits, which was seized by police. The P.W.-1, P.W.-2, P.W.-3 and P.W.-4 were also along with informant P.W.-7 had gone to search of the

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dacoits on the basis of foot-steps and saw that the dacoits were dividing the looted articles. These witnesses have chased the appellant and other miscreants and had recovered the looted articles i.e. Saree, Lungi, Radio from the possession of appellant and Budheshwar Kherwar. The I.O. (P.W.-8) Nawal Kishore Prasad has proved F.I.R. (Exhibit-3) and production cum seizure memo (Exhibit-4) made of stolen property made over to him by the informant and others. He has also recorded the confessional statement (Ext.5) of appellant.

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16. Therefore, on merits, I find no reason to interfere with the impugned judgment of conviction, but so far quantum of sentence is concerned, considering the facts and circumstances of case, nature of offence committed by the appellant, his age, antecedent and character and also in view of the fact that considerable period has elapsed from the date of occurrence and appellant has also remained in custody for more than 4½ years, out of seven years sentence, I feel inclined to reduce the sentence of the appellant to the period already undergone instead of imprisonment of seven years as awarded by the learned trial court.

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17. Accordingly, this appeal is dismissed on merits with modification in sentence as stated above.

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18. The appellant is on bail. As such, he is discharged from liability of bail bond and sureties shall also discharged.

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19. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)