Jharkhand High Court
Islam Mian vs The State Of Jharkhand on 17 July, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 1686 of 2003
(Against the judgment of conviction dated 23.10.2003 and the order of
sentence dated 24.10.2003, passed by the learned Additional Sessions
Judge, Fast Track Court-II, Chatra, in Sessions Trial Case No. 334 of 1996)
1. Islam Mian
2. Salamat Mian ..... 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. A.N. Deo, Advocate
Ms. Sharda Kumari, Amicus
For the Resp.-State : Mr. Pankaj Kumar, PP
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08/ 17.07.2023 Heard learned counsel for the parties.
2. The instant appeal is directed against the judgment of
conviction and the order of sentence dated 23.10.2003 & 24.10.2003,
respectively, passed by the learned Additional Sessions Judge, Fast Track
Court-II, Chatra, in Sessions Trial Case No. 334 of 1996, whereby the
appellants were convicted and sentenced to undergo rigorous imprisonment
for seven years and fine of Rs.1,000/- each under Section 307 of the Indian
Penal Code and in default thereof, further to undergo RI for three months.
However, the appellants were acquitted for the charges under Section 5 of
the Explosive Substance Act.
3. The prosecution case in brief is that on 14.03.1996, at about 11
P.M. when the informant came out of her house for attending nature's call,
the appellants threw a bomb on the informant to kill her so that she may
not go to the court to depose her evidence in a case pending between the
informant and the appellants.
4. Mr. A. N. Deo & Ms. Sharda Kumari, learned amicus
appearing for the appellants submit that though the appellants were also
charged for the offence under Section 5 of the Explosive Substance Act for
committing attempt to murder the informant by throwing a bomb; but the
appellants have been acquitted from the said charge. This clearly goes to
show that the very basis of the entire prosecution case is demolished
because the allegation is that the appellants used bomb to kill the
informant, however, under Explosive Substance Act he has been acquitted,
as such even the case under Section 307/34 will not sustain.
Learned Counsel, after the aforesaid argument made an alternative
prayer on the question of sentence and submits that the incident is of the
year 1996 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 appellant Nos. 1 & 2 are aged about 65 and 70 years
old, respectively and they remained in custody for about 9 months and they
have never misused the privilege of bail and further the appellants are
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
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.
6. Having heard learned counsel for the parties and after going
through the documents available on LCR and deposition of the informant
and other P.Ws., it appears that altogether 10 witnesses were examined on
behalf of the prosecution and out of them, P.Ws. 7, 8 and 9 were declared
hostile. P.W.2 - in para 2 of his deposition had deposed that a live bomb
was seized along with the remains of one exploded bomb and he has
identified his signature on seizure list. Further, P.W.5- in para 2 of his
deposition had also deposed that at the place of occurrence he saw live
bomb and remains of exploded bomb.
P.W.3 in para 3 of his cross examination had deposed that he reached
the place of occurrence after about one and half hour and Islam, Salamat
and Aziz Mian reached the place along with him. P.W.6- (informant) is the
only eye witness and in para 29 of her cross examination she deposed that 8
inch of the earth was depressed and the door had broken due to explosion.
7. It is also evident from the impugned judgment that the
appellants were acquitted from the charge of Explosive Substance Act
technical ground i.e., Section 7 of Explosive Substance Act bars trial in
absence of sanction order from the District Magistrate and since in the
instant case sanction was not obtained by the prosecution; the appellants
were acquitted from the charge of Explosive Act.
However, looking at the overall 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, and
admittedly the appellants remained in custody for about 9 months.
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 1996 and about 27 years have passed and that period is
sufficient to exhaust anybody mentally, physically and economically and
the appellants were in jail for about 9 months and they 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.10,000/- each.
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.10,000/- each.
12. It is made clear that the appellants shall pay the aforesaid fine
of Rs.10,000 /- each, within a period of 4 months from the date of receipt
of copy of this order, before the D.L.S.A., Chatra; 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. The Secretary, Jharkhand High Court Legal Services
Committee shall reimburse Ms. Sharda Kumari, learned Amicus on
submission of bill(s) for this case @ Rs.3000/- per hearing subject to the
maximum ceiling as per the applicable Notification.
16. Let a copy of this order be communicated to the court below,
the Secretary, Jharkhand High Court Legal Services Committee, Secretary,
DLSA, Chatra and the 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.)
Pramanik/
.
