Full Judgment
Criminal Revision No. 55 of 2005 Against the judgment dated 25.02.2004 passed by 2nd Additional Sessions Judge, Dumka in Criminal Appeal No. 67 of 1997 --- 1.Malay Kumar Gorain son of Amulya Ratan Gorain 2 Bujo Kumar Gorain @ Barun Kumar Gorain son of Gedu Gorain 3.Gautam Kumar Gorain … … Petitioners Versus The State of Jharkhand … … Opposite Party --- For the Petitioners : None For the Opposite Party : Mr. Tapas Roy, A.P.P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- By Court: No one appears for the petitioners. However, Mr. Tapas Roy, learned A.P.P. for the State is present.
2. Since this matter is pending for last 12 years, the same is being disposed of based on the materials available on record.
3. This application is directed against the judgment dated 25.02.2004 passed by 2nd Additional Sessions Judge, Dumka in Criminal Appeal No. 67 of 1997 whereby and whereunder the judgment and order of conviction and sentence dated 09.12.1997 passed by the learned Judicial Magistrate 2nd class, Dumka in G. R. No. 955 of 1993 corresponding to T. R. No. 700 of 1997 by which the petitioners have been convicted under Sections 341, 323 & 354/34 of I.P.C. and sentenced to various terms have been affirmed.
4. It appears from the FIR that on 17.11.1993 when the informant along with his wife Sumitra Devi had gone to attend the Mela and were coming back at about 7 P.M., the informant after leaving his wife on the road, went to answer the call of the nature when in the meantime, the petitioners seeing the wife of the informant alone, tried to outrage her modesty. Upon alarm raised by her, the informant came there and protested upon which, he was assaulted with a stone by the petitioner no. 2 and other accused persons also started assaulting him by slaps and fists. It is also alleged that on hearing cry, Robel Marandi and Suni Ram Marandi as well as mother of Suni Ram Marandi had -2- come to the place of occurrence and the informant and his wife were saved.
5. Based on the aforesaid allegation, Shikaripara P. S. Case No. 78 of 1993 was instituted under Sections 341, 323, 354/34 of I.P.C. Investigation resulted in submission of charge-sheet and after cognizance was taken, the charge was framed under Section 341, 323, 354/34 of I.P.C. Since the prosecution had been able to prove its case beyond all reasonable doubt, petitioners have been convicted for the offence punishable under Sections 341, 354, 323/34 of I.P.C. and were sentenced to under simple imprisonment for various terms and the maximum sentence was one year under Section 354/34 of I.P.C. The petitioners preferred an appeal being Criminal Appeal No. 67 of 1997 which however was dismissed on 25.02.2004 by the learned IInd Additional Sessions Judge, Dumka.
6. It is the case of the petitioners that they have falsely been implicated in the present case; and that absence of the Investigating Officer being examined by the prosecution, the same has caused prejudice to the defence as the place of occurrence has not been established. It has also been stated that the P.W. 2 and P.W. 3 are the husband and wife and therefore, their evidence should not have been considered in the manner which has been done by the learned courts below as the same is tainted with falsity.
7. Mr. Tapas Roy, learned A.P.P. has opposed the prayer and has stated that sufficient corroborative evidence is on record which would suggest the complicity of the petitioners in the offence and therefore, no interference is necessitated in the judgment of conviction and order of sentence and as has been affirmed by the learned appellate court.
8. It appears that in course of evidence, 6 witnesses were examined on behalf of the prosecution. P.W. 6 - Lukhi Hansda was tendered by the prosecution. P.W. 1 - Suniram Marandi has stated that on hearing the cry, he reached the place of occurrence and had seen the petitioners quarrelling with the informant and his wife. This witness has disclosed about the injury on the eye of the informant. P.W. 2 - Anand Rajwar is the informant of the case who deposed that for attending nature's call, he left his wife on the road, when the petitioners started outraging the modesty of his wife and when he rushed to the place of occurrence, he was assaulted by the petitioner -3- no. 2 with stone and other petitioners also assaulted him by fists and slaps. P.W. 3 - Smt. Sumitra Devi is the wife of the informant who has stated that once the husband had left the place on the call of the nature, she was standing alone, whereupon petitioners had come and tried to outrage her modesty. This witness had also supported the case with respect to her husband trying to save her from the clutches of the petitioners. P.W. 4 - Robin Marandi is the eye-witness who has reached the place of occurrence on the cry of alarm and he had seen the petitioners quarrelling with the informant and also seen the injury near the eye of the informant. P.W. 5 - Dr. Basudeo Prasad Mandal had examined the informant and had found some injury in the left eye as well as on the face of the informant and opined it to be simple in nature caused by hard and blunt substance.
9. It is an admitted fact that P.W. 1 - Suniram Marandi and P.W. 4 - Robin Marandi had reached the place of occurrence after the alleged assault had taken place and therefore they cannot be termed to be eye-witnesses to the occurrence. P.W. 2 being the informant and P.W. 3 is his wife whose modesty was tried to be outraged by the petitioners had categorically stated about the act of the petitioner in trying to outrage the modesty as well as subsequent assault meted out to P.W. 2 by the petitioner no. 2 by stone and by the other petitioners by fists and slaps. The defence has failed to elicit any contradiction in the evidence of P.W. 2 and 3. P.W. 1 and 4 although are not eye- witnesses, but when they reached the place of occurrence on hearing the cry of alarm, they had seen injury on the eye of the informant. In fact, P.W. 5 who is the doctor had found scratch mark in the eye of the informant which sufficiently corroborates the evidence of P.W. 1, 2, 3 & 4 with respect to injury sustained by the informant. In view of the consistent evidence of the independent witnesses as well as informant and his wife, the non-examination of the I.O. has not caused any prejudice to the defence. The circumstances which has been discussed above would suggests that the trial court below has rightly convicted the petitioners under Sections 341, 354, 323/34 of I.P.C. which has rightly been affirmed in appeal.
10. There being no reason to conclude otherwise with respect to the conviction of the petitioners, I am not inclined to interfere in the said order of conviction. However, as regards the sentence which has been -4- imposed upon the petitioners are concerned, the maximum period of sentence is one year simple imprisonment under Section 354/34 of I.P.C. The injury found on the person of the informant - P.W. 2 has been opined to be simple in nature. The petitioners are facing the rigors of prosecution since 1993 and it also appears that they have remained for some time in custody also. The circumstances lead this court to conclude that since the petitioners had suffered the rigors of prosecution coupled with the nature of allegation levelled against them, the period of sentence imposed upon them is modified to the period already undergone in custody.
11. This application is disposed of with the aforesaid modification in sentence. (Rongon Mukhopadhyay, J) Jharkhand High Court at Ranchi The 6th day of July, 2017 R.Shekhar/NAFR/Cp.3