Jharkhand High Court
Kamla Choudhary vs The State Of Jharkhand on 12 June, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 1188 of 2004
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(Against the judgment of conviction and order of sentence, both
dated 29.06.2004, passed by learned 3rd Additional District &
Sessions Judge, Dumka corresponding to S.T. No.215 of 2001 /
625 of 2002.)
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1. Kamla Choudhary
2. Pappu Mahamarikh
3. Upendra Mahamarikh
4. Kanti Choudhary
5. Pramod Mahamarik
6. Triveni Choudhary
7. Jagarnath Mahamarik
8. Chiranjivi Mahamarikh
9. Nakul Mahamarikh
10. Kumoud @ Kumda Mahamarikh
..... .... Appellants
Versus
The State of Jharkhand. ..... .... Respondent
CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant :Mr.Rajesh Kumar, Adv.
:Mr. Amit Kumar, Adv.
For the Respondent-State :Mr. Mrs. Vandana Bharti, A.P.P
.........
09/12.06.2023 Heard learned counsel for the parties.
2. The instant criminal appeal has been preferred against
the judgment of conviction and order of sentence, both dated
29.06.2004, passed by learned 3rd Additional District & Sessions
Judge, Dumka corresponding to S.T. No.215 of 2001 / 625 of
2002, whereby the appellants have been convicted for the offences
under Sections 148, 385, 323/149 of the IPC and sentenced to
undergo S.I. for a period of Six months u/S 323/149 of the IPC,
further sentenced to S.I. for a period of Six months u/S 385 IPC
and sentenced to undergo S.I. for a period of Six months u/S 148
of the IPC, however all the sentences were directed to run
concurrently.
3. The brief fact of the case is that on 01.08.2000, when
the informant along with his father had gone for ploughing the
field (place of occurrence) then the above named accused persons
came there armed with deadly weapon and demanded of
Rs.20000/- otherwise informant would not be allowed to cultivate
the P.O. land. In the meantime appellants assaulted the
informant's father as a result of which he had sustained serious
injury and when the informant tried to save his father then the
accused began to throttled him and snatched his identity card.
4. At the outset, learned counsel for the appellants
submits that the appellant no.2-Pappu Mahamarikh and
appellant no.3-Upendra Mahamarikh have died during
pendency of this appeal and the instant criminal appeal has
been dismissed as abated on behalf of appellant no.2-Pappu
Mahamarikh and appellant no.3-Upendra Mahamarikh vide
order dated 19.06.2018.
Learned counsel appearing for the appellants has
made the following submissions:-
(i) Learned Sessions Judge himself has found that the
evidence of the prosecution witnesses is full of contradictions and
they have been making improvements in narration of the case
from time to time and that in view of such admission the finding of
the learned trial court that there was no material contradiction in
the evidence of the prosecution witnesses is an error of law and
error of record and the said finding is consequently fit to be set
aside.
(ii) Learned court below failed to take into consideration
that the prosecution witnesses, namely P.W.1, P.W.4 and P.W.5
were interested witnesses and they were not trustworthy witnesses
because they are blood related.
(iii) Learned Sessions Judge has failed to appreciate that
Ext. A, B & C are more authentic than the F.I.R. because these
Exhibits goes to prove that the Government through its Forest
Officer filed a case against the informant making allegation that
informant along with his men forcibly started ploughing the land
which belongs to the Forest Department and for that the Forest
Officers along with the villagers tried to stop them and since the
present appellants being the villagers helped the Forest Officer, a
false F.I.R was filed against them by the informant.
After the aforesaid submission, he further made
an alternative argument that the incident is of the year 2000 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 the appellants are aged and middle
aged persons and they also remained in custody for few days and
there is no criminal antecedent of the appellants save and except
this case.
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 admits that as per
record there is no criminal antecedent 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 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 does not suffer from
any infirmity as such, 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 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 and admittedly the
appellant remained in custody for few days.
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 2000 and about 23 years
have passed and that period is sufficient to exhaust anybody
mentally, physically and economically and the appellants were
in jail for few days 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.
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 surviving appellants shall be
released for the period already undergone.
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.
10. With the aforesaid observations, directions and
modification in sentence only, the instant criminal appeal
stands disposed of.
11. The appellants shall be discharged from the liability
of their bail bonds.
12. Let a copy of this order be communicated to the trial
court and the LCR be sent back to the court concerned
forthwith.
(Deepak Roshan, J.)
Fahim/-
