IMPORTANT POINT
The Court has the discretion to modify the sentence based on mitigating circumstances, such as the age of the appellants and the time elapsed since the incident.

JUDGMENT :

Heard learned counsel for the parties.

2. Learned counsel for the appellants submits that the appellant No.2-Gulton Yadav has died on 17.12.2020.

3. In view of the aforesaid fact, the appeal stand dismissed as abated against the appellant No.2-Gulton Yadav.

4. This appeal is directed against the judgment of conviction and order of sentence dated 31.05.2004 passed by the learned Additional Sessions Judge, (F.T.C. No.V) Deoghar, in Sessions Case No. 118 of 2003, whereby the appellants no. 1 was convicted and sentenced to undergo R.I. for 7 years each under section 325/34 I.P.C., 5 years R.I. under section 380/34 IPC and 7 years under sections 452/34 IPC and further directed to deposit a fine of Rs. 5000/- each and in default of payment to undergo further imprisonment of 6 months, while the third accused-appellant no.3 has been sentenced to undergo 3 years R.I. under sections 380/34 and 452/34 IPC on each offences and all the accused-appellants have been adjudged not guilty under section 307 read with 34 of the IPC and all the sentences were directed to run concurrently.

5. The prosecution case in brief is that the informant and other inmates of the house were sleeping in their rooms after taking their meals at night on 07.07.2002 when at about 12 midnight appellants entered the informant’s house and began to assault the informant’s father further they also assaulted him and asked for Rangdari and also took away articles from his home.

6. Learned counsel for the appellants submits that all the prosecution witnesses were close relative of each other and were highly interested and instrumental in manufacturing evidence as against the appellants and they appeared to go to any length in order to implicate the appellants. He further submits that the charges framed against the appellants had not been established beyond all reasonable doubt.

7. 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 surviving 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 no.3-Vakil Yadav is aged about 80 years and remained in custody for about 2 months and appellant no. 1 remained in custody for about 3 months and they never misused the privilege of bail and further the appellants are having no criminal antecedent.

8. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, she fairly submits that as per record, there is no any criminal antecedents of the appellants.

9. 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.

10. 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 and admittedly the appellant no. 3 is aged about 80 years and remained in custody for about 2 months and appellant no.1 also remained in custody for about 3 months.

11. 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 considera