Jharkhand High Court
Nasiruddin Sabji vs The State Of Jharkhand on 22 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 1735 of 2004
(Against the judgment of conviction and the order of sentence both dated
25.09.2004, passed by the learned Additional Sessions Judge (FTC),
Rajmahal, in Sessions Case No. 664 of 1993)
1. Nasiruddin Sabji
2. Chapara Sabji
3. Kalu Sabji
4. Tahir Sabji
5. Mustakim Sabji
6. Muntajin Sabji
7. Nanhu Sabji ..... Appellants
Versus
The State of Jharkhand ..... Respondent
---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Appellants : Ms. Sharda Kumari, Advocate
For the Resp.-State : Mrs. Nehala Sharmin, APP
--------
06/ 22.08.2023 Heard learned counsel for the parties.
2. As per service report appellant No.1-Nasiruddin Sabji has died, as
such this case is dismissed as abated against appellant No.1.
3. The instant appeal is directed against the judgment of conviction and
the order of sentence both dated 25.09.2004, passed by the learned
Additional Sessions Judge (FTC), Rajmahal, in Sessions Case No. 664 of
1993, whereby the appellants were convicted and sentenced to undergo
rigorous imprisonment for 5 years under Section 307 of the IPC, RI for 3
years under Section 326 of the IPC, SI for 2 years under Section 324 of the
IPC and SI for 1 year under Section 323 of the IPC read with Section 149
of the IPC and 1 year under Section 148 of the IPC and all the sentences
were directed to run concurrently.
4. The prosecution case in brief is that on 03.04.1992 at 12.00 noon, the
informant came to know that the appellants were constructing a house on
the land of the informant. Receiving this information informant and his
sons went on their land and objected for constructing the house then all the
appellants armed with sabal, lathi etc. assaulted the informants and his son
for which they sustained injury and blood started oozing.
5. Learned Counsel for the appellants submits that the appellants have
falsely been implicated in this case and not a single witness has supported
the prosecution story and all the witnesses are interested witnesses.
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 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 appellants are aged/middle aged persons and the
appellants Nos. 2, 3, 4, 5, 6 & 7 remained in custody for about 26 days, 2
months and 25 days, 26 days, 2 months 8 days, 2 months 8 days and 25
days, respectively and never misused the privilege of bail and further the
appellants are having no criminal antecedents.
6. Learned APP opposed the prayer for acquittal and submits that the
learned trial court has not committed any error in convicting the appellants.
However, he fairly submits that as per record, there is no any criminal
antecedents of the appellants; as such, 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 LCR, 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.
8. Now coming to the alternative argument of learned counsel for the
appellants with respect to sentence awarded to them; this Court is of the
view that at this stage remitting the appellants to the rigors of imprisonment
at this juncture of their life would not serve the ends of justice since no
motive or element of planning has been proved in the instant case and
admittedly the appellants Nos.2, 3, 4, 5, 6 & 7 remained in custody for
about 26days, 26 days, 2 months and 25 days, 26 days, 2 months 8 days, 2
months 8 days and 25 days, respectively.
9. 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 1992 and about 31 years have passed and that period is
sufficient to exhaust anybody mentally, physically and economically and
the appellants also remained in jail for some 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.
10. 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 appellants shall be
released for the period already undergone but subject to payment of fine of
Rs.5,000/- each looking to the nature of offence.
11. As a result, the sentence as ordered by the learned trial court is
hereby modified to the extent that the appellants are sentenced for the
period already undergone subject to payment of fine of Rs.5,000/- each.
12. It is made clear that the appellants shall pay the aforesaid fine of
Rs.5,000/- each, within a period of 4 months from the date of receipt of
copy of this order, before the D.L.S.A., Sahibganj; failing which they 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 appellants shall be discharged from the liability of their bail
bonds, subject to fulfillment of aforesaid condition.
15. Let a copy of this order be communicated to the trial court, Secretary,
D.L.S.A., Sahibganj and also to the surviving appellants 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.)
Pramanik/
