Ram Johit Ghosh And Ors. Vs State of Jharkhand

The instant criminal appeal is directed against the judgment of conviction and order of sentence dated 21.07.2005 passed by the learned 1^st Additional Sessions Judge, Rajmahal in Sessions Case Nos.146 of 1999/ S.T. No.219 of 2002 arising out of Barharwa P.S. Case No.99 of 1998, whereby and whereunder the appellants have been held guilty for the offences under sections 447, 323, 324/34 and 325/34 of Indian Penal Code and sentenced to undergo S.I. for one month for the offence under section 447 of IPC, R.I. for 6 months for the offence under section 323

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of IPC, R.I. for 1 year for the offence under section 324/34 of IPC and R.I. for 2 years for the offence under section 325/34 of IPC and a fine of Rs.1,000/- with default stipulation. However, the appellants have been acquitted of the charge under section 326/34 of IPC. All the sentences were directed to run concurrently.

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Factual Matrix:-

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Factual matrix giving rise to this appeal is that on 24.08.1998 at about 17:00 hours, when the informant went to tie her calf in the barren field situated in front of her house as usual, she found the stump was uprooted, then she returned to her house to bring another stump. In the meantime, the accused Ram Johit Ghosh, Bablu Ghosh and Sanjit Ghosh armed with severe weapons entered into the house of the informant and started abusing by claiming that the said field belonged to them and they will not let her tie the calf in the said field. Upon protest raised by the informant, the accused, Ramjohit Ghosh inflicted a farsa blow upon her with intention to kill her, which was deflected by the left hand of her daughter-in-law, causing injuries to two of her fingers. When the informant tried to flee, accused, Ramjohit Ghosh attacked on her leg with a farsa , fracturing her left tibia due to which she became helpless to move and fell down on earth. Thereafter, Bablu Ghosh attacked with hausa on her ear causing injuries her ear. When the daughter of the informant stepped in to calm the dispute down, she was also assaulted by Sanjit Ghosh. Upon hearing hulla , the local villagers

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assembled and saved the informant and her family members from assault of the accused persons. At the time of assault, the son of the informant was not present.

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On the basis of fardbayan of the information, Barharwa P.S. Case No.99 of 1998 was instituted for the offences under sections 448, 341, 323, 324, 326 and 307 of IPC. After completion of investigation, chargesheet was submitted against the appellants and after taking cognizance, the case was committed to the court of Sessions where Sessions Case No.146 of 1999/ S.T. No.219 of 2002 was registered. The appellants have denied the charges leveled against them and claimed to be tried. After conclusion of the trial, the impugned judgment and order of conviction and sentence of the appellants was passed, which has been assailed in this appeal.

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Prosecution has examined altogether 10 witnesses in this case namely:

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P.W.1- Indrawati Ghosh (informant)

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P.W.2- Sunil Ghosh

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P.W.3 -Nobhi Ghosh

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P.W.4- Jayanti Ghosh

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P.W.5- Jayanto Ghosh

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P.W.6 -Satyendra Chaudhari

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P.W.7- Ahilya Ghosh

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P.W.8- Ogen Ramani

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P.W.9 -Dr. Md. Wasi Akhtar

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P.W.10- Nivaran Chandra Saha

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Apart from oral testimony of the witnesses, following documentary evidence has also been adduced by the prosecution:-

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Ext.1- Fardbayan

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Ext.1/A- Endorsement of fardbayan

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Ext.2 -Injury report of Indrawati Devi

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Ext.2/A -Carbon copy of injury report of Indrawati Ghosh

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Ext.3 -Formal FIR

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On the other hand, no oral or documentary evidence has been adduced by the defense. The case of defence is denial from the occurrence and false implication.

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Submission on behalf of appellants:-

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Learned counsel for the appellants has submitted that the dispute arose between the parties in a sudden manner due to longstanding land dispute and on the question of tying the calf of the informant on the disputed land. It is further submitted that there are two injured persons in this case and both of them have sustained simple injuries except one injury found to be grievous in nature but was not dangerous to life. In fact, it is the first offence of the appellants and they have never been convicted in any other case. Hence, the appellants deserve the benefit of section 4 of the Probation of Offenders Act.

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Submission on behalf of the State:-

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On the other hand, learned A.P.P. has defended the judgment of conviction and sentence of the appellants on merits but so far extending the benefit of Probation of Offenders Act is concerned, it is fairly admitted that it was the first offence of the appellants, hence, they deserve the benefit of Probation of Offenders Act.

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Analysis, Reasons and Decision:-

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10.I have given anxious consideration to the genesis, manner and place of occurrence. It appears that the dispute has broken out between the parties on account of longstanding land dispute. The injuries sustained by the two injured persons including the informant were found to be simple in nature except one injury, which is grievous in nature but not dangerous to her life, which has also been corroborated by the injury report. The occurrence is of the year 1998 and more than two decades have passed. The appellants have been denied the benefit of Section 4 of Probation of Offenders Act, 1958 without recording any special reasons by the trial court, to which the appellants are entitled.

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11.Considering the facts and circumstances of the case, the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, it is expedient in the ends of justice to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants, for which the appellants appear to be entitled, instead of awarding substantive sentence of imprisonment.

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12.In view of the above, this appeal is dismissed on merits with modification in sentence to the extent that instead of undergoing substantive sentence of imprisonment awarded to the appellants by learned Trial Court, the appellants are hereby directed to be released on furnishing bond of Rs.5,000/- (Rupees five Thousands) each with one surety of like amount to the satisfaction of learned trial court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

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If the bond is not furnished within above stipulated time, the learned Trial Court shall issue notice upon the appellants to secure their attendance for furnishing the bond.

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