Jharkhand High Court
Birendra Sao vs The State Of Jharkhand on 17 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 286 of 2005
----
(Against the judgment of conviction dated 17.02.2005 and order of sentence
dated 18.02.2005 passed by Additional Sessions Judge, Fast Track Court-IV,
Giridih in Sessions Trial No. 144 of 2004)
---
Birendra Sao ....Appellant
-Versus-
The State of Jharkhand ....Respondent
with
Cr. Appeal (SJ) No. 243 of 2005
---
(Against the judgment of conviction dated 17.02.2005 and order of sentence
dated 18.02.2005 passed by Additional Sessions Judge, Fast Track Court-IV,
Giridih in Sessions Trial No. 144 of 2004)
1. Amia Devi
2. Malti Devi ... 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, (in both appeals)
For the Respondent : Mr. Vishwanath Ray, Spl. P.P.
(in Cr.A(SJ) No. 286 of 2005
---
05/17.08.2023 Heard learned counsel for the parties.
2. From the record, it appears that service report has been received
from District & Addl. Sessions Judge cum FTC-IV (I/C), Giridih
indicating therein that the notice issued by this Court intimating the date
of hearing has been received by the villagers of the original appellants,
and as per their statement appellant no. 1, Amia Devi in Cr. Appeal (SJ)
No. 243 of 2005 died ten years ago. The said service report is part of the
instant file.
Learned A.P.P submits that in view of the aforesaid fact, the
instant appeal may be dismissed.
Having regard to the service report received by this Court
indicating that the appellant no. 1 Amia Devi in Cr. Appeal (SJ) No. 243
of 2005 has died, as such the instant appeal is dismissed as abated
against the appellant no. 1.
3. Since, both the appeals arise out of same impugned judgment and
as such both are heard together and decided by this common judgment.
4. These appeals are directed against judgment of conviction dated
17.02.2005 and order of sentence dated 18.02.2005 passed by Additional
Sessions Judge, Fast Track Court-IV, Giridih in Sessions Trial No. 144
of 2004, whereby the appellants were convicted for the offence under
Section 498A/304B IPC read with Section 34 I.P.C and Section 4 of
Dowry of Prohibition Act and sentenced to undergo Rigorous
Imprisonment for 7 years each under Section 304B I.P.C; Rigorous
Imprisonment for 3 years under Section 498A I.P.C with fine of Rs.
500 each and in default of fine, further directed to undergo R.I for six
months; Rigorous Imprisonment for 2 years under Section 4 of
Dowry of Prohibition Act and fine of Rs. 500/- each. In default in
payment of fine, further ordered to undergo R.I for 6 months each. It
was further ordered that all the sentences shall run concurrently.
5. The prosecution case in brief is that daughter of the informant
was married with the accused Birendra Sao about six months prior to
the date of occurrence. Dowry was also given at the time of marriage,
but Rs. 10,000/- could not be given. After marriage, she lived for
about 3-4 months. Thereafter, all the family members of accused
started torturing her for demand of Rs. 10,000/- and they have killed
her daughter due to non-fulfilment of demand of dowry.
6. Learned Counsel for the appellants made the following
submissions:
(i) The impugned judgment is erroneous, perverse, illegal
and wrong for not discussing the evidences available on
record, as such, is liable to be set aside.
(ii) Learned court below has failed to appreciate that the
Doctor(P.W.2) has deposed that cause of death was asphyxia,
as a result of which hanging, but except ligature mark over
the neck, no other external or internal injury were present on
the person of the deceased.
(iii) Learned court below has failed to appreciate that the
Investigation Officer (P.W.7) has stated that Mahendra Sao
(P.W.5) has not stated before him that Malti Devi used to
threaten them.
Learned Counsel, after the aforesaid argument made an
alternative prayer on the question of sentence and submits that the
incident is of the year 2002 and the surviving appellants have 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
appellants are middle aged persons and they never misused the
privilege of bail.
7. Learned APP opposed the prayer for acquittal and
submits that the learned trial court has not committed any error in
convicting the appellants. As such, if the sentence is modified, then the
same should be modified in lieu of fine.
8. 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 the prosecution witnesses, who have
considerably proved the case of the prosecution and the findings of the
trial court; this Court is not inclined to interfere with the Judgment of
conviction and thus the same is sustained.
9. Now coming to the alternative argument of learned counsel for
the respective appellants with respect to sentence awarded to them; this
Court is of the view that at this stage remitting the surviving appellants
to the rigors of imprisonment at this juncture of their life would not
serve the ends of justice as admittedly the appellant, Birendra Sao (in
Cr. Appeal No. 286 of 2005) was in custody for about 1 year 11 months
14 days and the appellant no. 2, Malti Devi (in Cr. Appeal No. 243 of
2005) was in custody for about 1 year.
10. 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 2002 and about 21 years have passed and that period is
sufficient to exhaust anybody mentally, physically and economically
and the surviving appellants were in jail for a considerable period and
they have never misused the privilege of bail and now they are not
involved in any criminal activities; thus, they have a chance to reform.
11. 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
surviving appellants shall be released for the period already
undergone, but subject to payment of fine of Rs. 25,000/- each.
12. As a result, the sentence as ordered by the learned trial court is
hereby modified to the extent that the surviving appellants are
sentenced for the period already undergone, subject to payment of fine
of Rs. 25,000/- each before D.L.S.A, Giridih.
13. It is made clear that the surviving appellants shall pay the
aforesaid fine of Rs. 25,000/- each within a period of 4 months from
the date of receipt of copy of this order, before D.L.S.A., Giridih;
failing which they shall serve rest of the sentence as order by the
learned trial court.
14. With the aforesaid observations, directions and modification in
sentence only, the instant criminal appeals stand disposed of.
15. The surviving appellants shall be discharged from the liability
of their bail bond, subject to fulfilment of aforesaid condition.
16. Let a copy of this order be communicated to the trial court,
Secretary, D.L.S.A, Giridih and also to the surviving appellants
through the officer-in-charge of concerned police station.
17. Let the lower court record be sent to the court concerned
forthwith.
(Deepak Roshan, J.)
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