Jharkhand High Court
(Against The Judgment Of ... vs The State Of Jharkhand on 18 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 1740 of 2003
(Against the judgment of conviction dated 24.11.2003 and the order of
sentence dated 29.11.2003, passed by the learned Additional Sessions
Judge, Fast Track Court No.VI, Hazaribagh, in Sessions Trial No. 101 of
1993)
Sarju 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. Nilesh Kumar, Advocate
For the Resp.-State : Mr. Shweta Singh, APP
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07/ 18.08.2023 Heard learned counsel for the parties.
2. The instant appeal is directed against the judgment of
conviction dated 24.11.2003 and the order of sentence dated 29.11.2003,
passed by the learned Additional Sessions Judge, Fast Track Court No.VI,
Hazaribagh, in Sessions Trial No. 101 of 2003, whereby the appellant was
convicted and sentenced to undergo rigorous imprisonment for five years
and fine of Rs.2,000/- under Section 307 of the Indian Penal Code and in
default of payment of fine, further to undergo RI for three months. It was
ordered that in the event the amount of fine deposited by convict, the same
shall be paid to the victim Gandauri Gope.
3. The prosecution case in brief is that on 21.06.2002 at about 6
A.M., while the informant was doing cultivation work in his field, in the
meantime appellant came and started abusing in filthy language and he also
assaulted him and his son with tangi upon which they sustained injury and
son of the informant fallen down on the ground.
4. Learned Counsel for the appellant submits that there was an
admitted land dispute between the prosecution and the appellant side. Even
the manner of occurrence suggests that there is no pre planning and
intention for fight; rather due to sudden altercation between the two own
brothers, the offence happens. Even the Doctor has opined that the injuries
were simple in nature caused by hard and blunt substance. As such, at least
the conviction under Section 307 should not be sustained.
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 2002 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 a middle aged person and he remained in
custody for about three months and fifteen days and never misused the
privilege of bail and further the appellant is having no criminal antecedents.
5. Ms. Shweta Singh, learned APP on the other hand contended
that though the injuries were simple in nature but there were three blows
and moreover, there is an opinion of the Doctor that the injury is as a result
of hard and blunt substance. But learned APP could not show any
deposition of any of P.Ws with regard to the intention and pre planning
before the occurrence.
6. Having heard learned counsel for the parties and after going
through the documents available in the LCR it appears that while the
informant along with his son were engaged in the cultivation work in their
field his brother Sarju Gope came and starting using filthy language and
saying that why the informant was working in his own land upon which the
informant replied that they are doing the work in their own field and after
hot discussions the occurrence took place.
7. After going through the deposition of all the P.Ws. it does not
transpire that Section 307 will be attracted in the instant case as there is an
admitted land dispute and moreover no intention, preparation or planning
has been proved by the prosecution. At this stage, it cannot be ignored the
deposition of the Doctor who has opined that thought the injury was due to
hard and blunt substance but the same was simple in nature.
8. Looking to the overall facts and circumstances of the case
Section 307 of the IPC is not sustainable in the instant case and for that the
appellant deserves acquittal. From the impugned judgment it transpires that
though the charge were framed under Section 307 and 323 but no separate
sentence has been awarded for Section 323, as such this Court is of the
opinion that interest of justice would be sufficed by imposing sentence for
Section 323 as one year.
9. Now coming to the alternative argument of learned counsel for
the appellant with respect to sentence awarded to him under Section 323
IPC; this Court is of the view that at this stage remitting the appellant to the
rigors of imprisonment at this juncture of his life who is now 68 years old
would not serve the ends of justice since no motive or element of planning
has been proved in the instant case and admittedly the appellant remained
in custody for about 3 months and 15 days.
10. 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 2002 and about 21 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.
11. Taking into consideration of mitigating circumstances, I am of
considered view that without interfering with the judgment of conviction,
the sentence as imposed by this Court for Section 323 IPC 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.10,000/-.
12. As a result, the sentence as ordered by this Court under
Section 323 IPC is hereby modified to the extent that the appellant is
sentenced for the period already undergone subject to payment of fine of
Rs.10,000/-.
13. It is made clear that the appellant shall pay the aforesaid fine
of Rs.10,000/-, within a period of 4 months from the date of receipt of copy
of this order, before the D.L.S.A., Hazaribagh; failing which he shall serve
rest of the sentence as ordered by the learned trial court.
14. With the aforesaid observations, directions and modification in
sentence only, the instant criminal appeal stands partly allowed.
15. The appellant shall be discharged from the liability of his bail
bond, subject to fulfillment of aforesaid condition.
16. Let a copy of this order be communicated to the trial court,
Secretary, D.L.S.A., Hazaribagh and also to the appellant 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.)
Pramanik/
