Jharkhand High Court
Basudev Mandal vs The State Of Jharkhand on 14 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 88 of 2005
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(Against the judgment of conviction and order of sentence dated 23.12.2004
passed by learned Additional District & Sessions Judge, 1st, Fast Track Court,
Giridih in Sessions Trial No. 241 of 1993)
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1. Basudev Mandal
2. Sanichar Mandal
3. Kailashi Devi @ Kailashwa Devi
4. Tilak Mandal
5. Bhairau Mandal ....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. Shree Nivas Roy, Advocate
For the Resp.-State : Mr. Rajesh Kumar, A.P.P.
For the Informant : Mr. S. K. Murtr, Advocate
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09/14.08.2023 Heard learned counsel for the parties.
2. At the outset, learned counsel for the appellants submits that he
would be pressing this appeal only on behalf of appellant no. 1,
Basudev Mandal. Since appellant nos. 2 to 5 were ordered to be
released on probation by executing bond for keeping peace and good
behaviour for a period of one year and no adverse report has come; as
such the order passed by learned trial court against appellant nos. 2 to
5 has been complied with. As such, no useful purpose would be served
by deliberating on that issue. As such, learned counsel does not want
to press the appeal on behalf of appellant nos. 2 to 5.
3. This appeal is directed against the judgment of conviction and
order of sentence, both dated 23.12.2004 passed by learned Additional
District & Sessions Judge, 1st, Fast Track Court, Giridih in Sessions Trial
No. 241 of 1993, whereby the appellant no. 1 was convicted for the
offence under Sections 147, 148, 323, 324 and 326 I.P.C. and
sentenced to undergo R.I for 1 year under Sections 147, 148, 323 &
324 and R.I for 3 years under Section 326 I.P.C. All the sentences were
ordered to run concurrently.
4. The prosecution case in brief is that on 16.10.1992 when the
informant after taking meal was present in his house, suddenly the
accused person came at the door of the informant and asked him to
vacate the house as he had got the land of the house settled in his
favour. On refusal to vacate the house, the accused person started to
turn the wife of the informant out of the house and assaulted with
sword.
5. Learned Counsel for the appellant made the following
submissions:
(i) The impugned judgment and order of conviction is
illegal, arbitrary, perverse and contrary to law and as such is
liable to be set aside.
(ii) Learned trial court has not considered this aspect of the
matter that save and except the evidence of the informant
party, no independent witness has supported the case of the
prosecution.
(iii) Learned trial court has not considered this aspect of the
matter that there is a case and counter case between the
parties on account of previous land dispute and the witnesses
examined on behalf of the prosecution are interested
witnesses, as such, in absence of any concrete proof the
appellants cannot held liable for the alleged offence.
(iv) Learned trial court has not considered this aspect of the
matter that in the present case the Investigating Officer has
not been examined and non-examination of the Investigation
Officer has highly prejudiced the defence.
Learned Counsel, after the aforesaid argument made an
alternative prayer on the question of sentence and submits that the
incident is of the year 1992 and the appellant no.1 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 appellant no. 1 is
aged about 66 years and was in custody for 17 days and he never
misused the privilege of bail and further the appellant is having no
criminal antecedent.
6. Learned A.P.P opposed the prayer for acquittal and submits that
the learned trial court has not committed any error in convicting the
appellant no. 1. However, he fairly submits that as per record, there is
no any criminal antecedent of the appellant.
Learned counsel for the informant supports the judgment,
however, submits that 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 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 the prosecution and the finding 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 respect to sentence awarded to appellant no. 1; this
Court is of the view that at this stage remitting the appellant no. 1 to
the rigors of imprisonment at this juncture of his life would not serve
the ends of justice as admittedly he was in custody for 17 days.
9. 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 1992 and about 31 years have passed and that period is
sufficient to exhaust anybody mentally, physically and economically
and the appellant no. 1 was in custody for 17 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.
10. 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
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 no. 1 is sentenced for
the period already undergone subject to payment of fine of Rs. 25,000/.
12. It is made clear that the appellant no. 1 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 learned trial court, who, in turn, shall
pay to the informant; 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 no. 1 shall be discharged from the liability of his
bail bond, subject to fulfilment of aforesaid condition.
15. Let a copy of this order be communicated to the learned trial
court and also to the appellant no. 1 through the officer-in-charge of
concerned police station.
16. Let the lower court record be sent to the court concerned
forthwith.
(Deepak Roshan, J.)
jk
