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2023 DIGILAW 691 (JHR)

Pena Gope v. State of Jharkhand

2023-05-12

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 31.05.2004 and 02.06.2004, respectively passed by the learned Additional Sessions Judge, Fast Track Court No. II, Chaibasa, West Singhbhum in Sessions Trial No. 41 of 1992, whereby the appellant was convicted for the offences punishable under sections 326 read with section 149 IPC and further sentenced to undergo R.I. for three years and to pay a fine of Rs. 1,000/- each for the offence under section 326 read with 149 IPC. Further to undergo R.I. for six months in default of payment of amount and further be pleased to direct that out of fine amount, if realized a total sum of Rs. 3,000/- out of Rs. 4,000/- may be paid to the injured PW-2 Jairam Gope as compensation. 3. The case of the prosecution in brief is that on 22.12.1987 at about 10 a.m. informant was going to civil court where accused persons threatened him . Further when informant and Munshi Jamadar were returning home they saw the accused persons armed with weapons standing on road where they stopped the informant and fired at him which missed upon which the informant fled towards his village and saw that the accused persons were assaulting Munshi Jamadar and upon reaching village he learnt that Munshi Jamadar has been killed by the accused persons. 4. Learned counsel for the appellant submits that the court below has not considered the fact in passing the impugned judgment that non-examination of the Investigating Officer highly prejudiced the case of the appellant. She further submits that in this case the medical officer the doctor who conducted the postmortem examination and other injuries has not been examined. She lastly submits that there is serious contradiction among the prosecution witnesses, as such, the judgment of conviction is liable to be set aside. 5. She further submits that in this case the medical officer the doctor who conducted the postmortem examination and other injuries has not been examined. She lastly submits that there is serious contradiction among the prosecution witnesses, as such, the judgment of conviction is liable to be set aside. 5. Learned Counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 1987 and the appellant has suffered the mental agony due to ongoing litigation and looking to the overall facts and circumstances of the case, this Court may kindly, at least, modify the sentence for the period already undergone as appellant is aged about 55 years and he remained in custody for about 217 days and never misused the privilege of bail and further the appellant is having no criminal antecedents. 6. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedents of the appellant; as such, if the sentence is modified, then the same should be modified in lieu of fine. 7. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR and looking to the comprehensive facts and circumstances of the case and the deposition of the prosecution witnesses who have considerably proved the case of the prosecution and the findings of the learned trial court; this Court is not inclined to interfere with the Judgment of conviction and thus the same is sustained. 8. Now coming to the alternative argument of learned counsel for the appellant with regard to sentence awarded to him; this Court is of the view that at this stage remitting the appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice since no motive has been proved in the instant case and admittedly the appellant remained in custody for about 217 days. 9. 9. Thus, on point of sentence, looking to the entire facts and circumstances of the case and also the fact that the alleged incident took place in the year 1987 and about 36 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the appellant was in jail for a considerable period and he has never misused the privilege of bail and now he is not involved in any criminal activities; thus, he has a chance to reform. 10. Taking into consideration of mitigating circumstances, I am of considered view that without interfering with the judgment of conviction, the sentence ought to be modified to the extent that the appellant shall be released for the period already undergone but subject to payment of fine of Rs. 25,000/-. 11. As a result, the sentence as ordered by the learned trial court is hereby modified to the extent that the appellant is sentenced for the period already undergone but subject to payment of fine of Rs. 25,000/-. 12. It is made clear that the appellant shall pay the aforesaid fine of Rs. 25,000/- within a period of 4 months from the date of receipt of copy of this order, before the D.L.S.A. Chaibasa, West Singhbhum; failing which he shall serve rest of the sentence as ordered by the learned trial court. 13. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal stands disposed of. 14. The appellant shall be discharged from the liability of his bail bond, subject to fulfillment of aforesaid condition. 15. Let a copy of this order be communicated to the trial court, Secretary, D.L.S.A. Chaibasa, West Singhbhum and also to the appellant through the officer-in-charge of concerned police station. 16. Let the lower court record be sent to the court concerned forthwith.