Jharkhand High Court
Unknown vs The State Of Jharkhand on 19 May, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 1187 of 2004
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(Against the judgment of conviction and order of sentence, both
dated 29.03.2004, passed by learned 5th Additional Sessions
Judge, FTC Dumka corresponding to S.T. No.246 of 96 / 73 of
2003.)
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Katki Rai ..... .... Appellant
Versus
The State of Jharkhand. ..... .... Respondent
CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant :Ms. Alka Kumari, Adv.
For the Respondent-State :Mr. Tapas Roy, A.P.P
.........
07/19.05.2023 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
29.03.2004, passed by learned 5th Additional Sessions Judge, FTC
Dumka corresponding to S.T. No.246 of 96 / 73 of 2003, whereby
the appellant has been convicted for the offences under Sections
395 & 397 of the IPC and sentenced to undergo R.I. for a period of
Seven years u/S 397 of the IPC, further sentenced to R.I. for a
period of five years u/S 395 IPC with a fine of Rs.500/- and in
default of payment of fine further to undergo S.I. for one month,
however all the sentences were directed to run concurrently.
3. The brief fact of the case is that on 25/26.4.1995 at
about 11.30 p.m when the informant was sleeping in his house
along with his family members the appellant entered into the
house armed with gun along with other accused persons and
looted several valuable articles including ornaments and while the
accused persons were leaving informant house, they threaten him
to keep mum.
4. Learned counsel appearing for the appellant has made
the following submissions:-
(i) Learned court below failed to take into consideration
that there is no evidence on record to show that complicity of the
appellant in the alleged occurrence.
(ii) Learned court below failed to take into consideration
that not a single looted articles have been recovered from the
possession of the appellant.
(iii) Learned court below has failed to take into
consideration that there is no specific overt act has been levelled
as against this appellant either in the FIR or in the case diary or in
the deposition and all the witnesses are interested witnesses.
After the aforesaid submission, he further made an
alternative argument that the incident is of the year 1995 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 the appellant is aged about 65 years and he
also remained in custody for Three years, Two months and 10
days (about 800 days) and there is no criminal antecedent of the
appellant 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 appellant, 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 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 and admittedly the appellant remained in
custody for about 800 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 1995 and about 28 years have
passed and that period is sufficient to exhaust anybody mentally,
physically and economically and the appellant has also remained
in jail for about 800 days and he has never misused the privilege
of bail.
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.30,000/-.
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.30,000/-.
It is made clear that the appellant shall pay the
aforesaid fine of Rs.30,000/- within a period of 4 months from the
date of receipt of this order, before the D.L.S.A., Dumka; failing
which he shall serve rest of the sentence as ordered by the learned
trial court.
10. With the aforesaid observations, directions and
modification in sentence only, the instant criminal appeal stands
disposed of.
11. The appellant shall be discharged from the liability of
his bail bonds, subject to fulfillment of aforesaid condition.
12. Let a copy of this order be communicated to the trial
court, Secretary, DLSA Dumka and also to the appellant through
the concerned police station and the LCR be sent back to the court
concerned forthwith.
(Deepak Roshan, J.)
Fahim/-
