Jharkhand High Court
Haripado Mahto vs The State Of Jharkhand on 2 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1757 of 2003
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(Against the judgment of conviction and order of sentence, both dated
5.12.2003 passed by learned Additional Judicial Commissioner, Fast Track
Court No.-9, Ranchi in Sessions Trial No. 412 of 1997)
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1. Haripado Mahto
2. Mahkam Mahto ....Appellants
-Versus-
The State of Jharkhand ....Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : Mr. Laxman Kumar, Advocate
Ms. Khushboo Kumari, Amicus Curiae
For the Respondent : Mr. V.S. Sahay, A.P.P
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09/02.08.2023 Heard learned counsel for the parties.
It appears that during pendency of this appeal, the appellant no. 1,
Haripado Mahto has died, as per the report of Registrar, Civil Court, Ranchi
bearing Memo no. 538 dated 09.12.2021, as such, the appeal is dismissed as
abated against the appellant no. 1.
2. This appeal is directed against the judgment of conviction and
order of sentence, both dated 05.12.2003 passed by learned Additional
Judicial Commissioner, Fast Track Court No.-9, Ranchi in Sessions Trial
No. 412 of 1997, whereby the surviving appellant was convicted for the
offence punishable under Sections 307/34 and 324/34 I.P.C and was
sentenced to undergo R.I. for 7 years under Section 307/34 and R.I for 2
years under Section 324/34 I.P.C. It was further ordered that both the
sentences shall run concurrently.
3. The prosecution case in brief is that on 18.01.1997 at about 8:00
p.m. the informant reached to his house from his shop and started opening
the lock of his house. Suddenly, the accused-appellants hurled Tangi from
behind, due to which the informant sustained injuries on the side of scalp
above ear. The appellant again hurled Tangi on the informant, due to which
he fell down on the road and became senseless. The cause behind the
occurrence is that his uncle Haripado mahto was allotted Indira Awas by
Block Office, for which altercation had taken place four to five days ago.
4. Learned Counsel for the appellant made the following
submissions:
(i) There are metrical inconsistencies and contradictions in the
statement of informant compared with his statement under
Section 161 Cr.P.C as recorded by the Investigating Officer and
incident has not been corroborated by medical evidence.
(ii) Admittedly, there were enmity between the appellant no. 1
and informant regarding construction of Indira Awas Scheme.
(iii) Investigating Officer has not been examined.
(iv) Medical Officer, Dr. Ajay Kumar (P.W.6) has not opined in
his evidence that any injury found on the person of the
informant (P.W.1) was grievous in nature.
(v) The enmity is double edged weapon and is causative factor
of the crime and at the same time it is an instrument of false
implication but not at the cost of real offender.
(vi) No eye witness has been examined in this case, though
seven prosecution witnesses have been examined.
(vii) The material evidence like cloth of the P.W.1 with blood
stained were not seized in this case neither alleged weapon i.e.,
Tangi and Lathi were seized.
(viii) There is no clear cut evidence against the appellants.
Learned Counsel, after the aforesaid argument made an alternative
prayer on the question of sentence and submits that the incident is of the
year 1997 and the surviving 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 the surviving appellant no. 2 is middle aged
person and he remained in custody for few days and never misused the
privilege of bail and further the surviving appellant is having no criminal
antecedents.
5. Learned APP opposed the prayer for acquittal and submits that the
learned trial court has not committed any error in convicting the surviving
appellant. However, he fairly submits that as per record, there is no any
criminal antecedent of the appellant; as such, if the sentence is modified,
then the same should be modified in lieu of fine.
6. Having heard learned counsel for the parties and after going
through the impugned judgment and the documents available on L.C.R,
and looking to the comprehensive facts and circumstances of the case and
the deposition of prosecution witnesses, who have considerably proved the
case of prosecution and the finding of learned trial court, this Court is not
inclined to interfere with the Judgment of conviction and thus the same is
sustained.
7. Now coming to the alternative argument of learned counsel for the
appellant with respect to sentence awarded to them; this Court is of the
view that at this stage remitting the surviving appellant to the rigors of
imprisonment at this juncture of his life would not serve the ends of
justice as admittedly the surviving appellant no. 2 remained in custody for
few days.
8. Thus, on the 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 1997 and about 26 years have passed and that period is
sufficient to exhaust anybody mentally, physically and economically and
the surviving appellant was also in jail for few days 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.
9. Taking into consideration of mitigating circumstances, I am of the
considered view that without interfering with the judgment of conviction,
the sentence ought to be modified to the extent that the surviving appellant
shall be released for the period already undergone but subject to payment
of fine of Rs. 35,000/- as the offence was grievous in nature.
10. As a result, the sentence as ordered by the learned trial court is
hereby modified to the extent that the surviving appellant is sentenced for
the period already undergone subject to payment of fine of Rs. 35,000/-
before D.L.S.A, Ranchi.
11. It is made clear that the surviving appellant as on date shall pay
the aforesaid fine of Rs. 35,000/- within a period of 4 months from the
date of receipt of copy of this order, before D.L.S.A, Ranchi; failing
which he shall serve rest of the sentence as ordered by the learned trial
court.
12. With the aforesaid observations, directions and
modification in sentence only, the instant criminal appeal stands disposed
of.
13. The surviving appellant shall be discharged from the
liability of his bail bond, subject to fulfilment of aforesaid condition.
14. Let a copy of this order be communicated to the trial court,
Secretary, D.L.S.A, Ranchi and also to the surviving appellant through the
officer-in-charge of concerned police station.
15. Let the lower court record be sent to the court concerned
forthwith.
(Deepak Roshan, J.)
jk
