Birendra Bhagat vs The State Of Jharkhand
2023 Latest Caselaw 3089 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Criminal Appellate Jurisdiction)
                  Cr. Appeal (SJ) No. 273 of 2005
(Against the judgment of conviction and the order of sentence, both dated
25.11.2004, passed by the learned Additional Sessions Judge, Fast Track
Court No.5, Dhanbad, in Sessions Trial Case No. 202 of 2001)

Birendra Bhagat                                          .....   Appellant
                                Versus
The State of Jharkhand                                   ..... Respondent
                               ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant              : Mrs. Jasvindar Majumdar, Advocate
                                 Ms. Anushka Sharma, Advocate
For the Resp.-State            : Mrs. Nehala Sharmin, APP
                               --------
11/ 22.08.2023     Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of

conviction and the order of sentence, both dated 25.11.2004, passed by the

learned Additional Sessions Judge, Fast Track Court No.5, Dhanbad, in

Sessions Trial Case No. 202 of 2001, whereby the appellant was convicted

and sentenced to undergo simple imprisonment for two years with fine of

Rs. 500/- under Section 325 of the Indian Penal Code and in default of

payment of fine, further to undergo simple imprisonment for one month.

3. The prosecution case in brief is that on 23.02.2002 at 6 A.M.

while the informant was returning from his farm after cutting and

collecting the cabbage flower, the appellant and his father armed with lathi

assaulted the informant from which he sustained injury. It is also alleged

that there was a land dispute between the parties.

4. Learned Counsel for the appellant submits that the appellant

has falsely been implicated in this case. He submits that there was a case

and counter case for the same occurrence and both contradicted to each

other, therefore the same cannot be treated as trustworthy to the another

based on contradictory fact. He further submits admittedly there was

continuing land dispute between the parties. No independent witness has

supported the case of the prosecution. There was contradictory statement in

the deposition of the 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 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 aged about 21 years and he remained in custody

for about three months 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

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.

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 to the rigors of imprisonment

at this juncture of his 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 appellant remained in custody for about three months.

8. 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.

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.5,000/-.

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.5,000/-.

11. It is made clear that the appellant shall pay the aforesaid fine

of Rs.5,000/-, within a period of 4 months from the date of receipt of copy

of this order, before the D.L.S.A., 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 trial court,

Secretary, D.L.S.A., 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/