Jharkhand High Court
Akshyay Ghosh vs State Of Jharkhand on 11 May, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1388 of 2003
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(Against the judgment of conviction and order of sentence dated
12.09.2003 and 15.09.2003, respectively passed by the learned
12th Additional Sessions Judge, Dhanbad in Sessions Trial No.
35 of 1999)
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1.Akshyay Ghosh.
2.Dijo Pada Mandal. ..... Appellants
Versus
State of Jharkhand. ..... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : Mr. M.B.Lal, Advocate
For the Respondent : Mr. Jitendra Pandey, APP
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11/Dated: 11th May, 2023
Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction
and order of sentence dated 12.09.2003 and 15.09.2003,
respectively passed by the learned 12th Additional Sessions
Judge, Dhanbad in Sessions Trial No. 35 of 1999, whereby the
appellants were convicted under sections 307 and 387/34 IPC
and sentenced to undergo R.I. for 7 years with fine of Rs. 500/-
under section 307 IPC and further sentenced to one year and
fine of Rs. 250/- under section 387 IPC and in default of
payment of fine the appellants were directed undergo R.I. of one
month each and further ordered to run the sentences
concurrently.
3. The prosecution case in short is that on 8-9/9/1998
when son of the informant did not return from his beetle leaf
shop he got anxious and started searching for him. He found
him under a bale tree and with a cut on his neck and blood on
his shirt. On asking the victim told that he was assaulted by the
appellants.
4. Mr. M.B.Lal, learned counsel for the appellants made
submissions to assail the impugned judgment on following
grounds.
(i) The appellants has been falsely implicated in the case as
victim was not in a condition to speak anything and the
fardbeyan lodged on the very next date by father of victim
appears to be fabricated and doubtful.
(ii) There are two fardbeyan and the statement of the victim is
hit by Section 162 of the Cr.P.C.
(iii) The three defence witnesses have clearly stated about the
false implication in this regard.
(iv) There were no eye witness.
Learned Counsel, after the aforesaid argument made an
alternative prayer on the question of sentence and submits that
the incident is of the year 1998 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 is aged about 53 and 63 years and they
remained in custody for about 515 and 502 days respectively
and they never misused the privilege of bail and further the
appellants are having no criminal antecedents.
5. Learned Addl. P.P. opposes the prayer of the appellant for
acquittal and submits that no error has been committed by the
learned trial court, as such no interference is required. However,
as per the available record there is no criminal antecedent of the
appellants.
6. Heard learned counsel for the parties. So far as ground
no.1 is concerned; the learned Trial Court in paragraph 20 of the
impugned judgment has given a categorical finding that in the
very fardbeyan it has been stated by the informant that his son
spoke haltingly at a very low voice. This is earliest version
leaving no chance of embroidery and explains the manner of
speech. To speak somehow briefly and giving full account by way
of statement to the police are two different things. In capacity of
giving full account of the incident to the police while undergoing
treatment is tenable and I am therefore not inclined to accept
this argument.
So far as ground no.2 is concerned; the learned Trial
Court in paragraph 15 of the impugned judgment has given a
finding that in the eye of law two fardbeyan are not recognized,
in these circumstances the fardbeyan of informant recorded
earlier in point of time can be treated as FIR whereas the
statement of victim will be statement under 161 Cr.P.C. The
sequence of events as unfolded in the fardbeyan of Sanjhi Lal
Mandal the father of injured is the core of the prosecution and
has been fully supported by other witnesses. Hence from the
evidence adduced on behalf of prosecution the disappearance of
Mantu Mandal in the night of 8.9.98 and subsequently being
found in the morning in an injured and unconscious condition
is amply supported by evidence.
So far as ground no.3 is concerned; the learned trial
Court has given a categorical finding in paragraph 18 of the
impugned judgment that cross-examination of the defence is not
consistent but is shifting and faltering.
So far as ground no. 4 is concerned; the learned trial
Court in paragraph 13 of the impugned judgment has given
finding that the account deposed by victim regarding the
manner of incidence is consistent with the injury report and the
deposition remains undemolished even after cross examination,
as such this court is not inclined to interfere with the judgment
of conviction.
7. Now coming to the alternative argument of learned
counsel for the appellants with regard 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 remained in custody for about 515
and 502 days respectively.
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 1998 and about 25 years have
passed and that period is sufficient to exhaust anybody
mentally, physically and economically and the appellants were
in jail for a considerable 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.
9. Taking into consideration of mitigating circumstances, I
am of considered view that without interfering with the
judgment of conviction, the sentence ought be modified to the
extent that the appellants shall be released for the period
already undergone but subject to payment of fine of Rs.
30,000/-each.
10. 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.30,000/-each.
11. It is made clear that the appellant shall pay the aforesaid
fine of Rs. 30,000/-each, 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 they 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 appellants shall be discharged from the liabilities of
their bail bonds, 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 appellants
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.)
Amardeep/
