1.Devendra Mahto 2.Dilip Mahto v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No.421 of 2004 -------- 1.Devendra Mahto 2.Dilip Mahto ..… Appellants Versus The State of Jharkhand ….. Respondent --------- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent : : --------- Mr. Gautam Kumar, Advocate Ms. Shweta Singh, A.P.P. --------- 21/03.05.2023
Legal Reasoning
Heard learned counsel for the parties. 2. This criminal appeal is directed against the judgment of conviction dated 09.01.2004 and order of sentence dated 12.01.2004, passed by the learned Ist Additional Sessions Judge, Chaibasa in Sessions Trial No. 210 of 2002, whereby the appellants have been convicted under Sections 376 (G)/ 511 and 354 I.P.C. and sentenced to undergo rigorous imprisonment of five years under 376 (G)/ 511 I.P.C. and two years each under Section 354 of the Indian Penal Code. It was further ordered that both the sentence would run concurrently. 3. The prosecution case, as per written report dated 30.03.2002, in brief is that on 29.03.2002 at about 10 p.m. when she was alone in her house, appellants entered her house and after appellant No. 2 gaged her mouth and thrown her on the ground, appellant No. 1 raped her and after that appellant no.2 also tried to do the same, but she some how managed to prevent the same and after raising an alarm she started beating the appellants with a Danda. The villagers and her Bhagina came to her aid and Mukhiya of the village was informed on the same day, however, on the next day the Mukhiya advised her to go to the police station. 4. Learned counsel for the appellants made following submissions assailing the impugned judgment: (i) From the evidence of the prosecutrix herself even no offence under Section 376 I.P.C. is made out against Appellant No.1 as he has not even tried to commit rape upon her and at best it can be said to be an offence u/s 354 of the I.P.C. The prosecutrix herself admitted that she was wearing all her clothes after the incident and the -2- witnesses also found the prosecutrix clothed. Further seizure list of the clothes of the prosecutrix was prepared by the police, which does not show that the clothes were either torn or had semen stain or blood stains. (ii) Medical evidence of the Doctor is not at all supporting the allegation of rape and the report of the doctor, Ext.5, is no way helpful to the prosecution case to substantiate the charge under Section 376 I.P.C. against the appellants (iii) There is material contradiction in the evidence of the Prosecutrix (P.W.3) and Nirmal Bodra (P.W.4), who is the Bhagina of the prosecutrix and sleeping in the adjacent room, who is alleged to have reached the place of occurrence first. As per para 2 of his evidence, by the time he reached there appellant no.1 has already committed rape and appellant no.2 was trying to do the same, which indicates that he is not an eye witness to the incident. (iv) Other witnesses are not of much importance to the prosecution cases as they claimed to reach the place after the occurrence on hearing Hullah. Learned counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 2002 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 are aged about 59 and 47 years respectively and they remained in custody for about 1246 and 1250 days respectively and never misused the privilege of bail and further the appellants are 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 appellants. However, he fairly submits 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. -3- 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; 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 appellants with respect 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 no. 1 & 2 remained in custody for about 1246 and 1250 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 2002 and about 21 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 the 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 appellants shall be released for the period already undergone but subject to payment of fine of Rs.25,000/- 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. 25,000/- each. 11. It is made clear that the appellants shall pay the aforesaid fine of Rs. 25,000/- each, within a period of 4 months from the date of receipt of the order, before the D.L.S.A., Chaibasa, -4- Singbhum West; failing which they 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
Decision
disposed of. 13. The appellants shall be discharged from the liability 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., Chaibasa, Singhbhum West 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. sm/ (Deepak Roshan, J.)