Jharkhand High Court
Akhilesh Jha vs The State Of Jharkhand on 23 July, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1267 of 2003
With
Cr. Appeal (S.J.) No. 1363 of 2003
.....
(Against the judgment of conviction and order of sentence, both, dated 28.08.2003, passed by learned Additional District Judge, Fast Track Court, Seraikella, in S.T. Case No. 105 of 1997).
Akhilesh Jha, son of Jota Shankar Jha, resident of Gowalapara, Ichhapur, Adityapur, P.O. & P.S., R.I.T., District - Seraikella-Kharswan ..... Appellant [in Cr. Appeal (SJ) No. 1267 of 2003] Birendra Pandey, son of Late Rameswar Pandey, Resident of Housing Colony, Adityapur, P.O. & P.S. R.I.T., District - Seraikella ..... Appellant [in Cr. Appeal (SJ) No. 1363 of 2003] Versus The State of Jharkhand .... Respondent (in both cases)
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellants :Mr. Navneet Sahay, Advocate Mr. Jitendra Nath Upadhyay, Advocate For the State :Mr. Mukesh Kumar, Additional Public Prosecutor [in Cr. Appeal (SJ) No. 1267 of 2003] Mr. Krishna Shankar, Additional Public Prosecutor [in Cr. Appeal (SJ) No. 1363 of 2003]
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By Court:- The instant Criminal Appeals have been preferred against a common judgment of conviction and order of sentence, both, dated 28.08.2003, passed by learned Additional District Judge, Fast Track Court, Seraikella, in S.T. Case No. 105 of 1997, whereby both the appellants Akhilesh Jha and Birendra Pandey have been sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 2000 each, for offence committed under Sections 386/34 of the Indian Penal Code and rigorous imprisonment for six months under Sections 323/34 of the Indian Penal Code and in default of payment of fine, further simple imprisonment for one year and both the sentences are directed to run concurrently.
Against the said impugned judgment of conviction and order of sentence, present two Criminal Appeals have been preferred, both arising out of common impugned judgment of conviction and order of sentence and as such both the criminal appeals are being heard together and disposed of by this common judgment.
2. The prosecution case is based upon the fardbeyan of Sri Harihar 2 Yadav (P.W. 4) recorded by Officer-in-Charge Sri S.K. Jha of R.I.T. police station, at T.M.H. on 15.08.1990 at 7.00 a.m., where the informant has stated that, when he went to his shop on 14.08.1990 at 5.00 p.m. at road no. 4, after ten minutes, one Subodh Dubey @ Subodh, s/o Bageshwari Dubey, resident of Adityapur-2, L.I.G. flats, quarter no. 1/6, police station- R.I.T., District- West Singhbhum, came and demanded Rs. 30 as tax from Sita Ram (P.W. 1) (a man working in the shop under the informant). On refusal, the accused abused Sita Ram (P.W. 1) and went towards East after threatening that "I will show you". At around 5.30 p.m. Subodh came back along with his three friends namely Bhutta @ Surya Bhushan Singh, Akhileshwar Jha and Birendra Pandey, to the shop of the informant and abused them. On protest the accused persons took out an iron angle from the shop adjacent to the shop of the informant and accused Bhutta @ Surya Bhushan Singh assaulted the informant, on his head causing bleeding injury. Accused Akhileshwar Jha and Subodh Dubey @ Subodh also took out iron angle and assaulted the informant. Birendra Pandey was instigating them. On brawl, several persons assembled there. One of the person Amrendra Kumar came for rescue, who was also attacked, but because of presence of a large number of people, accused persons fled away. The iron angle was left at the place of occurrence. The informant became unconscious, who was admitted at T.M.H, Jamshedpur. The informant has alleged that because of non-payment of the rangdari tax, the said occurrence has been committed.
On the basis of the fardbeyan, police registered Adityapur (R.I.T.) P.S. case no. 110 of 1990 dated 15.08.1990, under Sections 386, 341, 323, 325, 506, 307/34 of the Indian Penal Code.
3. After investigation the police submitted chargesheet against all the four named accused persons vide chargesheet no. 82 of 1990 dated 23.09.1990, under Sections 386, 341, 323, 325, 307, 506/34 of the Indian Penal Code. The cognizance of the offence has been taken vide order dated 05.11.1990 and case has been committed to the court of Sessions vide order dated 12.03.1997.
4. From perusal of the order sheet dated 12.03.1997, it appears that Bhhuta @ Surya Bhushan Singh died during pendency of the trial and Subodh Dubey @ Subodh has been declared permanent absconder, under Section 299 Cr.P.C. The learned Trial Court has not taken any steps for apprehending the absconded accused Subodh Dubey @ Subodh. The learned Trial Court is directed to issue process to be executed by Senior Superintendent of Police, 3 West Singhbhum to apprehend Subodh Dubey @ Subodh, s/o Bageshwari Dubey, resident of Adityapur-2, L.I.G. flats, quarter no. 1/6, police station- R.I.T., District- West Singhbhum.
5. The charge has been framed against both the accused Akhilesh Jha and Birendra Prasad under Sections 386/34, 307/34 vide order dated 15.05.2002, to which the appellants have pleaded their innocence and thus they were put under trial.
6. The prosecution has examined altogether four witnesses and also exhibited two documentary evidence to prove their case beyond all reasonable doubts.
Sita Ram Choudhary, staff of the shop of the informant, has been examined as P.W. 1, Sarajeet Yadav, another shop owner adjacent to the informant's shop has been examined as P.W. 2, Amrendra Yadav, brother of the informant has been examined as P.W. 3 and Harihar Yadav, informant of the case, has been examined as P.W. 4.
The signature on the fardbeyan of the informant has been proved and marked as Exhibit- 1 and injury report of the informant Harihar Yadav has been proved and marked as Exhibit- 2.
7. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C. on 14.08.2003, to which they have denied about the occurrence.
8. After hearing the learned counsel for the parties and on the basis of the materials available on record, the learned Trial Court convicted both the appellants Akhilesh Jha and Birendra Pandey under Sections 386/34 and 323/34 of the Indian Penal Code.
Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, two separate appeals have been preferred before this Hon'ble Court against the common judgment of conviction and order of sentence and as such, they are being heard and disposed of by this common judgment.
9. Heard learned counsel for the appellants, Mr. Navneet Sahay assisted by Mr. Jitendra Nath Upadhyay, Advocates. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that learned Trial Court has passed the impugned judgment beyond the materials available on record. Learned counsel 4 for the appellants has further submitted, that no case under Sections 386/34 of the Indian Penal Code is made out against these appellants, as from perusal of the First Informant Report (fardbeyan) it is apparent that any threat, which has been given, it was given by the co-accused Subodh Dubey @ Subodh alone, who demanded Rs. 30/- as a tax and on refusal of the same, Subodh abused them and went away saying that he will show them. Learned counsel for the appellants has submitted that, in that statement, there is no threatening given with regard to the life of Sita Ram (employee of the informant), who has been examined as P.W. 1. Subsequently, from perusal of fardbeyan, it appears that four persons including Subodh Dubey came to the place of occurrence and Subodh Dubey having iron angle assaulted the informant along with Akhilesh Jha, where Birendra Pandey was instigating the accused. Learned counsel for the appellants has submitted, that under the aforesaid facts and circumstances, Akhilesh Jha or Birendra Pandey can be convicted under Sections 323/34 of the Indian Penal Code but there is no ingredient of commission of the offence by Akhilesh Jha and Birendra Pandey under Sections 386/34 of the Indian Penal Code and the learned Trial has acquitted them, under Sections 307/34 of the Indian Penal Code, as the injury upon the informant are simple in nature.
10. Learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor in Cr. Appeal (SJ) No. 1267 of 2003 and Mr. Krishna Shankar, learned Additional Public Prosecutor in Cr. Appeal (SJ) No. 1363 of 2003 have vehemently argued the appeal and have supported the impugned judgment of conviction and order of sentence. Learned Additional Public Prosecutors for the State, have submitted, that owing to non-payment of tax of Rs. 30/- as demanded by Subodh Dubey @ Subodh from Sita Ram, the occurrence has committed, such tax is nothing except a 'rangdari' tax and as such, the learned Trial Court has convicted these two persons under Sections 386/34 of the Indian Penal Code, as they were accompanying the principal accused Subodh Dubey during his second visit, when the occurrence of assault has been made upon the informant, on his head by iron angle.
11. Heard, learned counsel for the appellants, Mr. Navneet Sahay assisted by Mr. Jitendra Nath Upadhyay, Advocates, Mr. Mukesh Kumar, Additional Public Prosecutor in Cr. Appeal (SJ) No. 1267 of 2003 and Mr. Krishna Shankar, learned Additional Public Prosecutor in Cr. Appeal (SJ) No. 1363 of 2003 appearing for the State, perused the record including the F.I.R., charge, evidence of all four witnesses, Exhibit- 1 and Exhibit- 2 i.e. signature on the 5 fardbeyan and the injury report of Harihar Yadav respectively and the statement of the appellants recorded under Section 313 Cr.P.C., this Court is of the opinion that the occurrence is in two parts. First part was committed by Subodh Dubey @ Subodh alone, where he has demanded a tax of Rs. 30/- and on refusal, he has given threatening, which comes under the definition of extortion as envisaged under Section 383 of the Indian Penal Code. The second part took place, where four persons under the leadership of Subodh Dubey @ Subodh went to the place of occurrence and Akhilesh Jha, Bhutta @ Surya Bhushan Singh assaulted the informant by iron angle, on his head causing bleeding injury, but no demand of tax or rangdari was made or whispered, and on brawl, the neighbors assembled there including brother of the informant, Amrendra Yadav (P.W. 3). The informant has stated, that he has sustained one injury on the head and Exhibit- 2 shows that those injuries were simple in nature. Informant Harihar Yadav has further stated that a murderous attack was also done on witness, Amrendra Yadav, who is the brother of the informant. Amrendra Yadav has never stated this during his evidence, that he was assaulted or has sustained any injury. Sita Ram Chaudhary (P.W. 1) has supported the prosecution case with respect to demand of tax by Subodh Dubey @ Subodh. Sarajeet Yadav (P.W. 2), neighbor of the informant has also supported the version of P.W. 1, Sita Ram Chaudhary, but from perusal of the cross-examination of P.W.1, it appears that because of some dispute in weighing of the articles, a quarrel took place. Under such garb, the appellants have been falsely implicated in the present case.
From perusal of the evidence on record this Court is of the opinion, that these two appellants Akhilesh Jha and Birendra Pandey were nowhere associated with the demand of any tax and even if any tax of Rs. 30/- was demanded, it was demanded by Subodh Dubey, alone by giving some sort of threatening, as such, these two persons cannot be convicted under Sections 386/34 of the Indian Penal Code. Under the aforesaid background, Akhilesh Jha and Birendra Pandey are hereby acquitted of their conviction under Sections 386/34 of the Indian Penal Code. So far their conviction under Section 323/34 of the Indian Penal Code is concerned, there is sufficient material against both the appellants, Akhilesh Jha along with Subodh Dubey @ Subodh has assaulted the informant with iron angle causing bleeding injury, on the head and Birendra Pandey was instigating them. The ingredients are sufficient for constituting an offence under Sections 323/34 of the Indian Penal Code, as 6 such the judgment of conviction and order of sentence passed against Akhilesh Jha and Birendra Pandey, under Sections 323/34 of the Indian Penal Code is hereby upheld and affirmed.
12. So far sentence is concerned under Section 323/34 of the Indian Penal Code, the learned Trial Court has awarded rigorous imprisonment for six months. Learned Counsel for the appellants has submitted, that both the appellants Akhilesh Jha and Birendra Pandey remained in custody for more than six months and as such, both have served the sentence awarded by the learned Trial Court, for committing the offence under Section 323/34 of the Indian Penal Code.
13. In the result, both the criminal appeals preferred against the impugned judgment of conviction and order of sentence, both, dated 28.08.2003, passed by learned Additional District Judge, Fast Track Court, Seraikella, in S.T. Case No. 105 of 1997 in connection with Adityapur (R.I.T.) P.S. case no. 110 of 1990, corresponding to G. R. Case No. 480 of 1990, are partly allowed, by acquitting both appellants Akhilesh Jha and Birendra Pandey under Section 386/34 of the Indian Penal Code but affirmed the conviction of both the appellants under Section 323/34 of the Indian Penal Code by modifying the sentence as period already undergone.
14. Accordingly, the present Criminal Appeals are partly allowed, as period already undergone.
15. The appellants, who are on bail are discharged from the liability of their bail bonds, as they have already served out the sentence.
16. The Senior Superintendent of Police, West Singhbhum is directed to take all steps for appearance of principal accused, Subodh Dubey @ Subodh, who has been declared absconder vide order dated 12.03.1997, under Section 299 Cr.P.C., at once. The Trial Court is directed to pursue the matter and submit reports regarding Subodh Dubey @ Subodh for his arrest.
17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 23.07.2018 Pallavi/