Jharkhand High Court
Imanual Toppo vs The State Of Jharkhand on 13 June, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 1208 of 2004
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Imanual Toppo ..... Appellant
Versus
The State of Jharkhand ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Rajesh Kumar, Advocate
For the Respondent : Mr. P.K. Chatterjee, A.P.P.
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11/13.06.2023 Heard learned counsel for the parties.
2. This criminal appeal is directed against the
judgment of conviction dated 24.05.2004 and order of sentence
dated 25.05.2004, passed by the learned Addl. Sessions Judge,
Fast Track Court-III, Gumla in Sessions Trial No. 196 of 2003,
whereby the appellant has been convicted under Section 395
I.P.C. and sentenced to undergo rigorous imprisonment for
seven years with a fine of Rs. 100/- and in default of payment
of fine he was directed to further undergo S.I. for six months.
3. The prosecution case, as per Fardbayan dated
09.2.2003, in brief is that on 08.02.2003, at about 7.30 p.m.,
while he was going to his Bari to urinate, then he was caught
hold of by criminals who claimed themselves to be of M.C.C.
party and demanded guns and Rs. 5 lacs and when the
informant told them that he was unable to pay the same, they
searched his house pointing revolver at the wife and son of the
informant and looted Rs.500/- cash, Tital wrist watch and
Philips Radio. After dacoity, when the criminals were trying to
flee, one of them, i.e. this appellant was apprehended by the
villagers.
4. Learned counsel for the appellant made following
submissions assailing the impugned judgment:
(i) The impugned judgment and order of conviction
and sentence is bad in law as well as on fact and the same is
liable to be set aside as the learned trial court has recorded
the conviction and sentence without application of judicial
mind and same is liable to be set aside.
(ii) P.W. 5 is the informant and P.W. 2 is the son of the
informant and both of them have not disclosed the name of the
accused out of seven dacoits and no prosecution witness has
identified the accused as a person who was involved in
committing the dacoity and all the witnesses have supported
that no incriminating articles and no looted article was
recovered from the possession of the accused.
(iii) The learned court has failed to consider the defence
of the appellant that when he was going to his relation to other
village with one torch in the dark night just after the
occurrence the appellant has been caught by the villagers
about 50 yards away from the house of the informant.
(iv) The appellant has not been properly examined
under Section 313 Cr.P.C.
Learned counsel, after the aforesaid argument made an
alternative prayer on the question of sentence and submits that
the incident is of the year 2003 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 1383 days and never misused
the privilege of bail and further the appellant is having no
criminal antecedent.
5. Learned A.P.P. 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 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 the
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 1383 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 2003 and about 20 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
activity; thus, he has a chance to reform.
9. Taking into consideration mitigating
circumstances, I am of the 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.10,000/-
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. 10,000/-
11. 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 the order, before the D.L.S.A., Gumla;
failing which he shall serve rest of the sentence as ordered by
the learned trial court.
12. With the aforesaid observation, 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., Gumla 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.)
sm/
