Jharkhand High Court
Subodh Gope vs The State Of Jharkhand on 3 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 1112 of 2004
(Against the judgment of conviction and the order of sentence, both dated
18.06.2004, passed by the learned Additional Sessions Judge, FTC 6th,
Dhanbad, in Sessions Trial No. 12 of 89)
Subodh Gope ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Amritanshu Singh, Advocate
For the Resp.-State : Mr. Tarun Kumar, APP
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06/ 03.08.2023 Heard learned counsel for the parties.
2. The instant appeal is directed against the judgment of
conviction and the order of sentence, both dated 18.06.2004, passed by the
learned Additional Sessions Judge, FTC 6th, Dhanbad, in Sessions Trial No.
12 of 89, whereby the appellant was convicted and sentenced to undergo
rigorous imprisonment for 7 years and fine of Rs.5,000/- under Section 376
of the Indian Penal Code and in default thereof further to undergo
imprisonment for three months.
3. The prosecution case in brief is that on 29.03.1988 at about 2
P.M. while the informant was going to her sasural (in-laws house) from
naihar (parents' house) along with her ten months' child and 5 years' sister,
on the way the appellant caught her sari from behind and caught her and
fell her down on the ground upon which her child slipped on ground from
her lap and her sister lifted the child and ran with the child towards village
then the appellant took the informant towards the bushes and fell her inside
the bushes and raped her forcibly in spite of her protest and after ravishing
her, he fled away towards village. In the meantime, on hulla raised by her
sister many persons started coming by running towards the bushes and
when they reached the place of occurrence, she identified the person who
had raped her.
4. Learned Counsel for the appellant submits that the appellant
has falsely been implicated in this case. He submits that the trial court's
order is based on conjecture and surmises. He further submits that the I.O.
and the Doctor have not been examined in this case. No independent
witnesses have supported the case of the prosecution. He submits that P.O.
not proved due to non-examination of I.O. Further, the victim in para 25 of
her deposition has specifically deposed that she has not shown place of
occurrence to I.O. There is no allegation in FIR or deposition of victim that
any threatening was given by appellant to victim and victim admitted in
para 10 that she did not raise alarm when she was taken to bushes. He
further submits that the victim has admitted in para 9 and 10 of her
deposition that the distance between her naihar and sasural is only 200
yards and if voice is raised loudly then it could reach her father's house
which makes the case of prosecution extremely doubtful that rape was
committed forcefully. He further submits that victim in para 12 deposed
that rape was committed for 1 hour and in para 20 she deposed that
villagers came after ½ hours. Further, accused also came with villagers.
This type of evidence does not appear to be reliable and trustworthy. It is
very difficult to believe that person committing rape will again appear at
the place of occurrence to be identified by the victim.
Learned Counsel, after the aforesaid argument made an alternative
prayer on the question of sentence and submits that the incident is of the
year 1988 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 71 years and he remained in custody
for about 937 days and never misused the privilege of bail and further the
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
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 LCR, and
looking to the comprehensive facts and circumstances of the case and the
testimony of the prosecutrix which is credible can be sole basis for the
conviction under Section 376 IPC, as such 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 him; this Court is of the
view that at this stage remitting the appellant who is now more than 70
years to the rigors of imprisonment at this juncture of his life would not
serve the ends of justice and admittedly the appellant remained in custody
for about 937 days.
8. Thus, on point of sentence, looking to the entire facts and
circumstances of the case, the age and gravity of the sentence of the
appellant and also the fact that the alleged incident took place in the year
1988 and about 35 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.
9. 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.20,000/-.
10. 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 subject to payment of fine of Rs.20,000/-.
11. It is made clear that the appellant shall pay the aforesaid fine
of Rs.20,000/-, within a period of 4 months from the date of receipt of copy
of this order, before the Secretary, DLSA, Dhanbad; 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 appellant shall be discharged from the liability of his bail
bond, subject to fulfillment of aforesaid condition.
14. Let a copy of this order be communicated to the court below,
Secretary, DLSA, Dhanbad and also to the 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.)
Pramanik/
