IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1659 of 2023 -----
Karan Khandait @ Jipu aged about 23 years, s/o late Goma Khandait, r/o village-Jaipur, Hatghmharia PS & PO-Hatghmharia, District-West Singhbhum … … Appellant
Versus
The State of Jharkhand … … Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Parwez Ahmad Khan, Advocate For the Respondent : Mrs. Shweta Singh, APP ------
Order No.15/Dated: 21st January, 2025 I.A. No. 4161 of 2024
1. The instant interlocutory application has been filed under Section 389(1) of the Cr.P.C. for keeping the sentence in abeyance in connection with the judgment of conviction dated 20.05.2023 and order of sentence dated 25.05.2023 passed by the learned Additional Sessions Judge-II, Chaibasa in connection with S.T. Case No.128 of 2021 arising out of Hatgamharia PS Case No.07 of 2021, whereby and whereunder, the appellant has been convicted under section 302 of the IPC and sentenced to undergo RI for life and a fine of Rs.10,000/- for the said offence and in default of payment of fine, further directed to undergo SI for six months.
2. It has been contended on behalf of the applicant that this is a case where there is no testimony basis upon which the judgment of conviction has been passed said to be reliable. It has further been submitted that it is also a case where there is no eye witness and merely on the basis of confession leading to recovery the judgment of conviction has been passed. It has also been contended that the informant (PW2), who is the wife of the deceased, is a hearsay witness.
3. The another ground which has been taken that even father of the appellant who in his examination-in-chief although has supported the prosecution version but in his cross-examination, he has denied the entire occurrence said to be committed by the present applicant. It has further been contended that though the incriminating articles have been
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recovered from the confession of the present applicant but the applicant has not put his signature in the seizure memo. The learned counsel based upon the aforesaid grounds has submitted that it is a fit case where the present applicant be released from judicial custody by suspending his sentence.
4. While, on the other hand, Mrs. Shweta Singh, learned APP appearing for the respondent-State of Jharkhand has vehemently opposed the prayer for suspension of sentence. It has been contended that the conviction is based upon the cogent evidence which would be evident from the evidence of the Investigating Officer who has been examined as PW9 wherein the shoes of the present applicant which has been recovered from the place of occurrence and the D.N.A profile has also been matched showing the blood stained found in the recovered shoes is of same origin which was there in the bloodstained earth. The learned State counsel on the aforesaid grounds, therefore, has submitted that it is not a fit case for suspension of sentence.
5. We have heard the learned counsel for the parties and gone across the findings recorded by the learned trial Court in the impugned judgment, the testimony available in the lower Court records as also the other material exhibits as available therein.
6. This Court, after appreciating the argument advanced on behalf of the parties and after going through the testimony as available on record found that it is evident that it is a case where there is no eye witness rather on the basis of recovery of the incriminating articles, particularly, the shoes, as would be evident from the testimony of the Investigating Officer, who has been examined as PW9 the conviction is based.
7. Hence, this Court in order to scrutinize the aforesaid basis of conviction when considered the testimony of the Investigating Officer, PW9, wherefrom it is evident that the confessional statement based upon that the recovery has been shown to be there of the shoes of the present applicant has not been brought on record since it has not been marked as exhibit. The shoes which have been said to be recovered having been said to be of the present applicant can also not corelate the culpability
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said to be committed by the present applicant since the seizure memo wherein the shoes have been found to be seized from the place of occurrence has not been signed by the present applicant.
8. The witnesses, i.e., PWs 3, 4, 5, 6 and 8 have not supported the prosecution version since they have become hostile. PW2, who is the informant, although supported the prosecution version but she has not remained consistent in her cross-examination rather she has denied the culpability said to be committed by the present applicant.
9. This Court, considering the aforesaid facts, is of the view that the applicant has been able to make out a case for suspension of sentence.
10. Accordingly, I.A. No. 4161 of 2024 stands allowed.
11. In consequence thereof, the applicant, named above, is directed to be released on bail, during pendency of the appeal, on furnishing bail bond of Rs.25,000/- (Rupees Twenty-Five Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-II, Chaibasa in connection with S.T. Case No.128 of 2021 arising out of Hatgamharia PS Case No.07 of 2021.
12. It is made clear that any observation made hereinabove will not prejudice the case on merit, since, the criminal appeal is lying pending before this Court for its consideration.
13. In view thereof, I.A. No. 4161 of 2024 stands disposed of with the aforesaid observation and direction.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.)
Sudhir
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