Kujri Jonko and Others the State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/952510
CourtJharkhand High Court
Decided OnNov-18-2011
Case NumberCriminal Appeal (D.B.) No. 388 of 2000
Judge R.K. MERATHIA & D.N. UPADHYAY
Reported in2012CrLJ261(NOC)
Excerpt:
1. this appeal has been filed against the judgment dated 16.9.2000 passed by sri tarkeshwar prasad, sessions judge, chaibasa in sessions trial no. 472 of 1989 convicting the appellants under sections 302, 201 and 148 of i.p.c. and sentencing them to undergo r.i. for life under section 302 and r.i. for four years under section 201 of i.p.c. and r. i. for one year under section 148 of i.p.c. however, the sentences were directed to run concurrently. 2. the prosecution case in short is that on 17.7.1988, the appellants along with 20-25 persons came armed with deadly weapons and proceeded towards the husband of the informant – bijay jonko who was working in the field. the informant – nitima kui (p.w. 2) raised alarm on which p.w. 3 with a view to save bijay jonko took him into his house. but, one tuti jonko and appellant no. 5 – rasika jonko climbed on the tile roof and after breaking it entered into the house and brought bijay outside the house and then all the accused persons killed him by inflicting injuries by deadly weapons. thereafter, the appellants dragged and took away the dead body of the deceased. informant further alleged that the said occurrence took place due to enmity. prosecution examined 6 witnesses out of whom p.w. 1 – gopal das is a formal witness, p.w. 2 – nitima kui (the informant), p.w. 3 – leba deogam, p.w. 4 – sukarmani kui and p.w. 5 – malti jonko kui are eye-witnesses, p.w. 6 – ram nath das is hearsay witness and is witness to the f.i.r. 3. regarding appellant no. 1 kujri jonko nothing has been said by the witnesses in their deposition. "appellant no. 2 – bagun jonko died during trial but in his place his son dongo jonko was taken into custody and he was released on personal bond by this court vide order dated 27.08.2001. regarding p.w. 3 – sundar jonko, in the f.i.r. it was said that he was with the mob and came with the weapon. p.w. 2 said that he was armed with bow and arrow. p.w. 3 said that he was seen at the place of occurrence, and p.w. 4 said that he dragged the dead body of the deceased, p.w. 5 said that he was in the mob. regarding appellant no. 4 in the f.i.r., it was said that he was in the mob and came with weapon. only p.w. 5 said that he was with the mob. regarding appellant no. 5 – rasika jonko, the witnesses are consistent with the f.i.r. that he was in the mob and he had weapon and climbed over the roof of p.w. 3 and brought out the deceased and he was also one of the persons who dragged the body of the deceased along with one tuti jonko. regading appellant no. 6 – salkhan jonko, witnesses said that he was the member of the mob and was armed with weapon and he also dragged the dead body of the deceased. regarding appellant no. 7 – mara jonko, the informant (p.w. 2) said that he was with the mob armed with farsa. p.w. 5 said that he was with the mob." 4. mr. sen, learned counsel appearing for the appellants relying on the judgment reported in (2004) 4 supreme court cases557 of bala seetharamaiah vs. perike s. rao and others submitted that in the present case also the charge under section 149 of i.p.c. was not framed, and therefore, the order of conviction could not be recorded under section 302 of i.p.c. 5. mr. ravi prakash, learned counsel appearing for the state did not dispute this position. 6. in this case charges were framed under section 148, 302 and 201 of i.p.c. neither charges were framed under section 149 of i.p.c. nor the ingredients of section 149 of i.p.c. were mentioned in the charge. the charge was never amended. thus, in our opinion, the present case is squarely covered by the judgment of balaseetharamaiah(supra). the prosecution has not brought on record the ingredients of section 149 of i.p.c. against the appellants. even if one or other appellant is found guilty under sections 148 and/or 201 of i.p.c., they have suffered more than the sentences provided for these offences. 7. this case relates to the incident which took place in the year 1998. in our opinion it will not be proper to remand the case at this stage for amendment in the charge and for retrial. 8. in the facts and circumstances of the case, this appeal is allowed and the impugned judgment is set aside. appellant no. 1 – kujri jonko, appellant no. 4 – lalit jonko and appellant no. 6 – salkhan jonko are discharged from their bail bonds. dongo jonko is discharged from his personal bond. appellant no. 3 – sundar jonko, appellant no. 5 – rasika jonko and appellant no. 7 – mara jonko are directed to be released from the jail, if not wanted in any other case.
Judgment:

1. This appeal has been filed against the judgment dated 16.9.2000 passed by Sri Tarkeshwar Prasad, Sessions Judge, Chaibasa in Sessions Trial No. 472 of 1989 convicting the appellants under Sections 302, 201 and 148 of I.P.C. and sentencing them to undergo R.I. for life under Section 302 and R.I. for four years under Section 201 of I.P.C. and R. I. for one year under Section 148 of I.P.C. However, the sentences were directed to run concurrently.

2. The prosecution case in short is that on 17.7.1988, the appellants along with 20-25 persons came armed with deadly weapons and proceeded towards the husband of the informant – Bijay Jonko who was working in the field. The informant – Nitima Kui (P.W. 2) raised alarm on which P.W. 3 with a view to save Bijay Jonko took him into his house. But, one Tuti Jonko and appellant no. 5 – Rasika Jonko climbed on the tile roof and after breaking it entered into the house and brought Bijay outside the house and then all the accused persons killed him by inflicting injuries by deadly weapons. Thereafter, the appellants dragged and took away the dead body of the deceased. Informant further alleged that the said occurrence took place due to enmity.

Prosecution examined 6 witnesses out of whom P.W. 1 – Gopal Das is a formal witness, P.W. 2 – Nitima Kui (the informant), P.W. 3 – Leba Deogam, P.W. 4 – Sukarmani Kui and P.W. 5 – Malti Jonko Kui are eye-witnesses, P.W. 6 – Ram Nath Das is hearsay witness and is witness to the F.I.R.

3. Regarding appellant no. 1 Kujri Jonko nothing has been said by the witnesses in their deposition.

"Appellant no. 2 – Bagun Jonko died during trial but in his place his son Dongo Jonko was taken into custody and he was released on personal bond by this court vide order dated 27.08.2001.

Regarding P.W. 3 – Sundar Jonko, in the F.I.R. it was said that he was with the mob and came with the weapon. P.W. 2 said that he was armed with bow and arrow. P.W. 3 said that he was seen at the place of occurrence, and P.W. 4 said that he dragged the dead body of the deceased, P.W. 5 said that he was in the mob.

Regarding appellant no. 4 in the F.I.R., it was said that he was in the mob and came with weapon. Only P.W. 5 said that he was with the mob.

Regarding appellant no. 5 – Rasika Jonko, the witnesses are consistent with the F.I.R. that he was in the mob and he had weapon and climbed over the roof of P.W. 3 and brought out the deceased and he was also one of the persons who dragged the body of the deceased along with one Tuti Jonko.

Regading appellant no. 6 – Salkhan Jonko, witnesses said that he was the member of the mob and was armed with weapon and he also dragged the dead body of the deceased.

Regarding appellant no. 7 – Mara Jonko, the informant (P.W. 2) said that he was with the mob armed with Farsa. P.W. 5 said that he was with the mob."

4. Mr. Sen, learned counsel appearing for the appellants relying on the judgment reported in (2004) 4 Supreme Court Cases557 of Bala Seetharamaiah Vs. Perike S. Rao and others submitted that in the present case also the charge under Section 149 of I.P.C. was not framed, and therefore, the order of conviction could not be recorded under Section 302 of I.P.C.

5. Mr. Ravi Prakash, learned counsel appearing for the State did not dispute this position.

6. In this case charges were framed under Section 148, 302 and 201 of I.P.C. Neither charges were framed under Section 149 of I.P.C. nor the ingredients of Section 149 of I.P.C. were mentioned in the charge. The charge was never amended. Thus, in our opinion, the present case is squarely covered by the judgment of BalaSeetharamaiah(supra). The prosecution has not brought on record the ingredients of Section 149 of I.P.C. against the appellants.

Even if one or other appellant is found guilty under Sections 148 and/or 201 of I.P.C., they have suffered more than the sentences provided for these offences.

7. This case relates to the incident which took place in the year 1998. In our opinion it will not be proper to remand the case at this stage for amendment in the charge and for retrial.

8. In the facts and circumstances of the case, this appeal is allowed and the impugned judgment is set aside. Appellant no. 1 – Kujri Jonko, appellant no. 4 – Lalit Jonko and appellant no. 6 – Salkhan Jonko are discharged from their bail bonds. Dongo Jonko is discharged from his personal bond. Appellant no. 3 – Sundar Jonko, appellant no. 5 – Rasika Jonko and appellant no. 7 – Mara Jonko are directed to be released from the jail, if not wanted in any other case.