) ------- 1. Rabindra Kisku @ Bindu Kisku 2. Diptiswar Marandi 3. Bankim Marandi v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J) No. 766 of 2004 --------- (Against the judgment of conviction and order of sentence both dated 27.04.2004 passed by learned 2nd Additional Sessions Judge, FTC, Jamtara corresponding to S.T. No.74 of 95/62 of 2002.) ------- 1. Rabindra Kisku @ Bindu Kisku 2. Diptiswar Marandi 3. Bankim Marandi ….. Versus …. Appellants The State of Jharkhand. ….. …. Respondent CORAM
Legal Reasoning
: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent-State :Mr. Arup Kumar Dey, A.P.P ------- :Mr. Rajiv Lochan, Adv. ……… 15/15.05.2023 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 27.04.2004 passed by learned 2nd Additional Sessions Judge, FTC, Jamtara corresponding to S.T. No.74 of 95/62 of 2002, whereby the appellants have been convicted for the offence under Sections 304 part II/34 IPC and Section 325 read with section 34 of the IPC and sentenced to undergo R.I. for a period of Five years each u/S 304 part-II/34 and R.I. for a period of Five years each u/s 325/34 IPC. Both the sentences were directed to run concurrently. 3. The brief fact of the case is that due to land dispute when the informant’s father was in his house all the accused persons came there armed with deadly weapon and dragged out his father from the house and assaulted him with an intention to kill him. The informant rescued his father but by then he had received several grievous injuries like fracture. 4. At the outset, learned counsel for the appellants submits that this appeal has been dismissed as abated against the appellant No. 2, namely, Diptiswar Marandi vide order dated 18.12.2018 and this appeal is being pressed only for the appellant nos.1 & 3. Learned counsel for the appellant has made the following submissions:- 2 (i) Learned court below has committed a serious error in law as well as on facts by accepting the evidence not legally acceptable and further committed serious error by giving its finding on facts not legally established and as such there is perverse appreciation of evidence in the present case which resulted in miscarriage of justice. (ii) Learned trial court failed to appreciate that the statements of the witnesses recorded during the investigation as under Section 161 Cr.P.C as well as the fardbeyan are not substantive piece of evidence and are not admissible in evidence. The above statement ought to have been used only for a limited purpose of corroboration and contradictions. After the aforesaid submission, he further made an alternative argument that the incident is of the year 1994 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 surviving appellants are aged about 46 & 56 years respectively and they also remained in custody for about 46 & 67 days respectively and further submits that there is no criminal antecedent of the appellants. 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 submits that as per record, there is no any criminal antecedents 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 learned 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 3 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 surviving appellants remained in custody for about 46 and 67 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 1994 and about 29 years have passed and that period is sufficient to exhaust anybody mentally, physically and economically and the surviving appellants have also remained in jail for few days and they have 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 surviving appellants shall be released for the period already undergone, but subject to payment of fine of Rs.25,000/- each. As a result, the sentence as ordered by the learned trial court is hereby modified to the extent that the appellants shall be released for the period already undergone subject to payment of fine of Rs.25,000/- each. It is made clear that the surviving appellants shall pay the aforesaid fine of Rs.25,000/- each within a period of 4 months from the date of receipt of this order, before the D.L.S.A., Jamtara; failing which they 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
Decision
stands disposed of. 11. The appellants shall be discharged from the liability of their bail bonds, subject to fulfillment of aforesaid condition. 12. Let a copy of this order be communicated to the trial court, Secretary, DLSA Jamtara and the LCR be sent back to the court concerned forthwith. Fahim/- (Deepak Roshan, J.)