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2022 DIGILAW 1281 (JHR)

Mukesh Mahto v. State of Jharkhand

2022-11-02

NAVNEET KUMAR

body2022
JUDGMENT : NAVNEET KUMAR, J. 1. This appeal is directed against the impugned judgment of conviction dated 28.02.2006 and order of sentence dated 04.03.2006 passed by the learned Additional Sessions Judge, F.T.C. II, Bermo at Tenughat in S.T. No. 300/2002 & S.T.R. 28 of 2003, in connection with Bokaro P.S. Case No. 07 of 2001, corresponding to G.R. Case No. 76 of 2001 at Bokaro, Jharkhand, whereby and where under the appellant was found guilty for the offence punishable u/s 395 of IPC and accordingly he was convicted and sentenced to undergo RI for a term of 8 years and also to pay a fine of Rs. 1,000/- (Rupees one thousand). And it has been further directed that in case of default of payment of fine the appellant shall have to undergo SI for a period of two months. 2. The prosecution story arose in the wake of fardbeyan of the informant Jubair Ahamhad (PW-1) which was recorded by S.I. M. Paswan of Gandhinagar P.S. on dated 30.01.2001 at 23:15 hours at Regional Hospital Dhori in emergency ward. The prosecution story is that on 30.01.2001 at about 5 p.m. he had gone to Bokaro Thermal by riding on his Hero Honda motorcycle along with his friend Khurshid Alam for some work and was returning home to Kurpania by the same motorcycle. The moment he reached between Pilpilo more and Khasmahal Kanta, two persons crossed the road before him by running from the left side to the right side of the road holding a wire in their hands and made the motorcycle fall by blocking road with the wire. Both the informant and Khurshid Alam fell on the road alongwith the motorcycle and as the informant attempted to get up, he heard the sound of a fire. Five to six persons came near the informant from the bushes on both the sides of the road. When the informant tried to get up again, one of those persons hit the informant with a bomb causing an injury on his right knee and the informant fell down, meanwhile, one of those persons who had a lathi in his hand gave two to three lathi blows to Khurshid Alam. Those persons took away the motorcycle of the informant by rolling the vehicle inside the jungle situated south of the road. Those persons took away the motorcycle of the informant by rolling the vehicle inside the jungle situated south of the road. Then the informant went to Khasmahal Kanta on foot with the help of his friend Khurshid Alam where an empty vehicle was standing, the informant requested its driver who took both to the Bokaro Colliery Hospital where the doctor attended him immediately and referred the informant to Regional Hospital, Dhori for proper treatment. Khurshid Alam, the friend of the informant, who had no injury left for home. Both the miscreants who were holding the wire were aged about 20 to 25 years and both were wearing white full shirts and trousers. The informant saw them in the head light of his motorcycle. He could not see the other five to six persons because of darkness. The informant had also sustained injury on the finger of his right hand because of the wire. Those persons were talking and abusing each other in local language. The registration number of the looted motorcycle was BR.20C/5169 which was a Hero Honda Splendor of silver colour. The occurrence of loot was of about 7 p.m. On the basis of fardbeyan a formal F.I.R. was drawn vide Bokaro P.S. Case No. 07/2001 under sections 395/397 of IPC and investigation commenced. On completion of investigation police submitted charge sheet under sections 395 and 397 of IPC against the accused persons. On 05.12.2001 the Learned A.C.J.M. Bermo at Tenughat took cognizance of the case and made over the same to his own file for commitment. Subsequently, the case was committed to the court of Sessions on 24.10.2002. The case came to the file of trial court on 29.5.2003 on transfer for trial and disposal. Learned Addl. Sessions Judge, F.T.C. II, Bermo at Tenughat had framed charge on 08.06.2003 under section 395 and 397 of IPC. The charges were framed and read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 3. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 4. Heard Mr. Mahesh Kumar Sinha (2), the learned counsel for the appellant assisted by Mr. Shubham Gautam, the learned Legal Aid defence counsel appointed by JHALSA to assist this Court on behalf of the appellant and Mr. 4. Heard Mr. Mahesh Kumar Sinha (2), the learned counsel for the appellant assisted by Mr. Shubham Gautam, the learned Legal Aid defence counsel appointed by JHALSA to assist this Court on behalf of the appellant and Mr. Bishambhar Shastri, the learned Addl. P.P. for the State. Arguments advanced on behalf of the appellant 5. The learned defence counsels for the appellant at the outset submitted that they do not want to argue this case on merit and therefore they confined their submissions only on the point of sentence and submitted that the appellant has already remained in jail custody for about 6 (six) years 9 (nine) months and over a period of time, the appellant has reached to his middle age. Further it has been pointed out that in view of the fact that the incident took place in the year 2001 and the appellant has been suffering the miseries and pains of the criminal proceedings for a long period of time and after the lapse of 21 years the appellant reached to his middle age and there is nothing on record to show about his criminal history and he completed 06 (six) years 09 (nine) months period of the sentence of imprisonment out from 08 (eight) years as awarded by the learned court below. In this view of the matter it is submitted that let this appeal be disposed of on the point of sentence by awarding the sentence for a term of the period of sentence already undergone by the appellant. Arguments advanced on behalf of the State 6. On the other hand, the learned Addl. P.P. appearing on behalf of the State did not controvert these facts that the appellant had remained in jail for about 06 (six) years 09(nine) months and submitted that since the appellant confined his argument on the point of sentence and, therefore, let this appeal be dismissed by awarding suitable sentence in view of theses mitigating factors as pointed out on behalf of the appellant by their learned counsels Appraisal and Findings 7. Having heard the parties, perused the record of this case including Lower Court Record. 8. It is found that the sole appellant Mukesh Mahto was convicted for the offence punishable u/s 395 of IPC and he was sentenced for Rigorous Imprisonment for eight years. Having heard the parties, perused the record of this case including Lower Court Record. 8. It is found that the sole appellant Mukesh Mahto was convicted for the offence punishable u/s 395 of IPC and he was sentenced for Rigorous Imprisonment for eight years. It appears that the appellant has already remained in jail for a period about 06 (six) years 09(nine) months. 9. Further it is found that at present the appellant is in jail by the direction of this Court vide order dated 12.03.2021 and after that he was arrested on 24.05.2021 and since 24.05.2021 the appellant has been in jail and thus it is found that the appellant has remained in jail for a period of about 06 (six) years 09(nine) months out of 08(eight) years as awarded by the learned court below. It is found that at the time of recording the statement of the sole appellant u/s 313 of Cr.P.C. he was about 25 years old and over the period of time he has become about 42 years old and there is nothing on record to show about his criminal history. It is also found that the alleged occurrence took place as far back as in the year 2001 and the appellant has been suffering the miseries and pains of the criminal proceedings for a long period of time. 10. Under the circumstances of this case and taking into consideration these mitigating factors it is found that no useful purpose would be served for sending the appellant again in jail. Therefore, the purpose of justice would be meted out if the sole appellant is awarded the sentence of imprisonment for a term of the period already undergone by him. 11. Under the circumstances of this case and taking into consideration these mitigating factors it is found that no useful purpose would be served for sending the appellant again in jail. Therefore, the purpose of justice would be meted out if the sole appellant is awarded the sentence of imprisonment for a term of the period already undergone by him. 11. In this view of the matter the judgment of conviction dated 28.02.2006 passed against the appellant by the learned Additional Sessions Judge, F.T.C. II, Bermo at Tenughat in S.T. No. 300/2002 & S.T.R. 28 of 2003, in connection with Bokaro P.S. Case No. 07 of 2001, corresponding to G.R. Case No. 76 of 2001 at Bokaro, Jharkhand is sustained by this Court and on the point of sentence this Court alters the period of sentence, as awarded by the learned court below, by awarding the sentence for a term of the period already undergone by him by setting aside the order of sentence dated 04.03.2006 as awarded by the learned trial court below against the appellant in this case. Since the appellant is in jail, he is directed to be released forthwith from custody if not wanted in any other cases. 12. Accordingly, the appeal is dismissed with modification in order of sentence as above. 13. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in this regard.