The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (SJ) No. 1154 of 2004 (Against the judgment of conviction dated 07.06.2004 and the order of sentence dated 08.06.2004, passed by the learned 1st Additional Sessions Judge, Garhwa, in Sessions Trial No. 367 of 1999) 1. Bahadur Bhuiyan 2. Budhu Bhuiyan The State of Jharkhand Versus --------- ….. Appellants ….. Respondent
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants For the Resp.-State --------- : Mr. A.K. Kashyap, Sr. Advocate : Mr. Fahad Alam, APP -------- 06/ 18.05.2023 Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction dated 07.06.2004 and the order of sentence dated 08.06.2004, passed by the learned 1st Additional Sessions Judge, Garhwa, in Sessions Trial No. 367 of 1999, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for two years and fine of Rs.500/- each under Section 498A of the Indian Penal Code and in default of payment of fine, both the appellants were further directed to undergo SI for two months and the appellant No.1 was further convicted and sentenced to undergo seven years under Section 304(II) of the IPC, however, both the sentences were directed to run concurrently. 3. The prosecution case in brief is that on 07.05.1999 the informant Keshwar Bhuiyan gave a written report to O/c Ranka P.S. stating therein that his niece was married with the appellant No.1-Bahadur Bhuiyan three years back. After some days of the marriage the in-laws and her husband started cruelty with girl and due to that reason the girl was brought at Naihar in the month of Magh. It is further case of prosecution that on 07.05.1999 Bahadur Bhuiyan, Budhu Bhuiyan, Ram Jatan Bhuiyan, Prasad Bhuiyan @ Kaltu, Pirthi Bhuiyan, Shiv Bhuiyan and some co- villagers at about 11.30 A.M. came and asked for Bidai of the girl but he protested them and said that after Panchayati if the matter is settled then she will be allowed to go. In the meantime, some altercations were started and then they caught his nephew Birbal Bhuiyan and Bahadur Bhuiyan assaulted lathi blow on the head of the deceased Birbal due to which he fell 2 down and became unconscious. He was brought to the police station under unconscious state and the accused persons fled away. During the treatment the deceased Birbal Bhuiyan died after one day of the incident i.e. on 08.05.1999 at Sadar Hospital, Daltonganj. 4. Learned Counsel for the appellants submits that the Investigating Officer of this case and the Doctor who had prepared the postmortem report have not been examined. He further submits that all the P.Ws. have given contradictory statements to each other as such, the conviction and Sentence under Section 304(II) of the IPC may not be sustainable in the eye of law as against appellant No.1 is concerned. He further submits that Section 498A of the IPC has not been proved in this case. He further submits that at best the appellant No.1 should have been convicted under Section 323 of the IPC and the conviction under Section 304(II) of the IPC is illegal and bad in law specially in absence of examination of the doctor, who had conducted autopsy. Learned Counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 1999 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 appellant Nos. 1 & 2 are aged about 44 and 79 years, respectively and the appellant Nos.1 & 2 remained in custody for about five years and seven days & six months and 11 days, respectively and they never misused the privilege of bail and further the appellants are having no criminal antecedents. 5. Learned APP 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 any criminal antecedents of the appellants. 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. 3 7. Now coming to the alternative argument of 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 appellant Nos.1 & 2 remained in custody for about five years and seven days & six months and 11 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 1999 and about 24 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 to be modified to the extent that the appellants shall be released for the period already undergone. 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. 11. With the aforesaid observations, directions and modification in
Decision
sentence only, the instant criminal appeal stands disposed of. 12. The appellants shall be discharged from the liability of their bail bonds. 13. Let a copy of this order and the lower court record be sent to the court concerned forthwith. Pramanik/ (Deepak Roshan, J.)