Jharkhand High Court
Budhu Khandwal ? Budhu Ram Naik & Anr. vs State Of Jharkhand on 3 April, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 17 of 2002
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1. Budhu Khandwal @ Budhu Ram Naik, son of Late Shashi Khandwal
2. Madan Khandwal @ Madan Naik, son of Sri Budhu Khandwal @
Budhu Ram Naik, both are resident of village Noagaon, P.S. Seraikella,
District - Singhbhum (W), now at Seraikella (Kharswan)
... ... Petitioners
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioners : Mr. R. C. P. Sah, Advocate
For the Opp. Party : Mr. S. K. Deo, A.P.P.
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04/03.04.2017Heard Mr. R. C. P. Sah, learned counsel appearing for the petitioners and Mr. S. K. Deo, learned A.P.P. for the State.
This revision application is directed against the judgment dated 01.08.2000 passed by the learned 1st Additional Sessions Judge, Seraikella in Criminal Appeal No. 6C/7 of 1999 whereby and whereunder the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, Seraikella in Seraikella P. S. Case No. 53 of 1995 on 12.01.1999 convicting the petitioners for the offence punishable under Section 435 of the Indian Penal Code has been affirmed and the sentence has been modified to one year rigorous imprisonment.
A First Information Report was instituted being G. R. Case No. 578 of 1995 wherein it was alleged that the informant had seen smoke coming out from his haystack and on raising alarm villagers assembled and extinguished the fire. It is alleged that informant's brother and one Duguru Mahato had informed that the petitioners were seen fleeing away from the place of occurrence after setting fire in the haystack. It is also alleged that on the same date there was an altercation between the informant and the petitioners had threatened the informant with dire consequences. It is also alleged that after the occurrence the matter was tried to be settled but the petitioner no. 1 did not agree to any settlement resulting in institution of the First Information Report.
Investigation culminated in submission of charge-sheet under Section 435 of the Indian Penal Code and upon taking cognizance the -2- case was tried by the learned Judicial Magistrate who on coming to a conclusion that the prosecution had proved its case beyond all reasonable doubts had convicted the petitioners for the offence punishable under Section 435 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years. The appeal preferred by the petitioners being Criminal Appeal No. 6 C/7 of 1999 was dismissed by the learned 1st Additional Sessions Judge, Seraikella vide judgment dated 01.08.2000 by modifying the sentence to rigorous imprisonment for one year.
It has been stated by the learned counsel for the petitioners that the entire conviction is based upon the evidence of P.W. - 1 and P.W. -
2. Learned counsel submits that the informant P.W. - 1 is not an eye- witness to the occurrence. It has been stated that there has been unexplained delay in lodging the First Information Report after two days. Submission has been advanced that P.W. 1 and P.W. 5 are interested witnesses as they are brothers. It has been stated that prejudice has been caused to the defence on account of non- examination of the Investigating Officer. Learned counsel further submits that false implication of the petitioners cannot be ruled out in view of the previous enmity existing between the parties.
P.W. - 1, Chhotu Gope, is the brother of the informant, P.W. - 6, who had stated that the petitioners had set fire on the haystack by pouring Kerosene Oil and lightening it with a matchstick.
P.W. - 2, Duguru Mahato, is also an eye-witness to the occurrence who had seen the petitioners putting the haystack on fire.
P.W. - 3, Lala Sardar and P. W. - 4, Sambhu Mahato are the witnesses on the point of seizure of brunt straw.
P.W. - 5, Jaya Mahato, is the informant of the present case who admittedly is not an eye-witness but he was told about the role played by the petitioners. This witness had stated that there was a previous enmity between the parties and a proceeding under Section 107 of the Cr.P.C. was also drawn up.
The case of the prosecution rests on the evidence of P.W. - 1 and P.W. - 2 who had seen the petitioners putting fire on the haystack and -3- subsequently fleeing away. The defence could not elicit any contradiction on the evidence of P.W. - 1 and P.W. - 2. The First Information Report also reveals about the involvement of the petitioners as told to P.W. - 5 by P.W. 1 and P.W. - 2. The contents of the First Information Report has also been supported by the evidence of the informant P.W. - 5. Thus prosecution evidence is consistent with respect to the act of the petitioners in putting fire on the haystack and fleeing away from the place of occurrence. So far as the point of delay in lodging the First Information Report is concerned, it appears that sufficient reasons have came to the fore inasmuch as there was an effort made by the villagers to arrive at a settlement between the parties but the same could not take any final shape due to refusal on the part of the petitioner no. 1 to settle the matter. So far as the question of previous enmity is concerned, the same cuts both ways and such enmity can be a motive for the petitioners to have committed the offence.
Thus the prosecution having been able to prove its case beyond all reasonable doubts the petitioners were rightly convicted for the offence punishable under Section 435 of the Indian Penal Code. This Court is thus not inclined to interfere in the judgment and order of conviction passed against the petitioners. However, with respect to the sentence of rigorous imprisonment of one year as modified by the learned appellate court is concerned, the petitioners are facing the rigors of prosecution since 1995 and have for sometime in custody. On such consideration, therefore, the period of sentence imposed upon the petitioners is modified to the period already undergone.
This application stands dismissed with the aforesaid modification in sentence.
(Rongon Mukhopadhyay, J.) Umesh/-