Jharkhand High Court
Ugan Mahto vs The State Of Jharkhand on 2 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 501 of 2020
1. Ugan Mahto
2. Parwati Devi --- --- Appellants
Versus
The State of Jharkhand --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through: Video Conferencing
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For the Appellant: M/s Shishir Suman, Indrajit Sinha, Advocates
For the Respondent: Mr. Subodh Kr. Dubey, A.P.P
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03 / 02.08.2021 Heard Mr. Shishir Suman, learned counsel assisted by Mr. Indrajit Sinha,
learned counsel for the appellant and learned A.P.P Mr. Subodh Kumar Dubey
on the prayer for suspension of sentence of these appellants made through I.A.
No. 3076/2021.
2. Both the appellants stand convicted for the offences punishable under
sections 364/302/201/34 of the Indian Penal Code by the impugned judgment
dated 30.06.2020 passed in Sessions Trial No. 323/2015 by the Court of learned
Additional Sessions Judge-IV, Bermo at Tenughat and have been sentenced to
undergo R.I for life with a fine of Rs. 10,000/- under section 302 of the Indian
Penal Code; further sentenced to undergo R.I for five years with a fine of
Rs. 5,000/- each and default sentence each under section 364/34 of the Indian
Penal Code and also sentenced to undergo R.I. for three years with a fine of
2,000/- each and default sentence each under section 201/34 of the Indian Penal
Code, by the impugned order of sentence dated 02.07.2020.
3. Learned counsel for the appellants submits that the case is based on
circumstantial evidence as the dead body has not been recovered. As per the
statement of the daughter of the deceased and the appellant no. 2 i.e. (PW-1)
aged fourteen years, both the appellants had assaulted the deceased at the
residence at Bokaro Thermal and after 3-4 days, appellant no. 2 along with her
children, went to the house of the appellant no. 1 at Gomia. On being asked,
appellant no. 2 told her that her father has gone to Mumbai. It is submitted that
the Investigating Officer though has stated that a shirt, white shoes and banyan
of the deceased was seized from jungle-jhari near Kathara-Jarangdih Main
Road, but recovery has not been made on the basis of the confessional statement
of the appellants since appellants have been arrested at 17.35 hrs. and 17.00 hrs.
respectively on 10.08.2015 and their confession have been recorded at 18.30 hrs
.2.
and 18.00 hrs. respectively. Recovery of some articles alleged to be that of the
deceased has not been made on the basis of confession and therefore, it is
inadmissible under section 27 of the Evidence Act. Moreover, the Investigating
Officer has also stated that these articles or clothes could be found in the market
also. He submits that recovery of shirt and white shoes alone could not establish
the offence for which appellants have been charged and convicted. PW-5
(brother of the deceased) and PW-6 (Informant father) are neither eyewitnesses
nor have been able to show that the deceased was killed by the appellants. At
best, the deceased could not be traced whether he had gone to Mumbai or had
gone missing. Guilt of the appellants could not be established on the evidence
of PW-5 & 6. PWs-2 & 4 are hearsay witnesses. It is submitted that merely
because appellant no. 2 went to the house of the appellant no. 1 after husband of
the appellant no. 2 went missing, would not be a incriminating evidence to
convict the appellants of the heinous offence of murder or under section 364-A
of the Indian Penal Code i.e. kidnapping in order to murder. Appellant no. 2 has
also stated that her husband has gone to Mumbai. No more burden under section
106 of the Evidence Act could have been discharged on the part of the appellant
no. 2. Appellants are undergoing custody since 10.08.2015 i.e. about six years
by now. Therefore, they may be enlarged on bail by suspending their sentence.
4. Learned A.P.P has strongly opposed the prayer. He submits that the
daughter of the appellant no. 2 has deposed against her and clearly incriminated
both the appellants of having assaulted the deceased, where-after they were
staying together at Gomia. It is submitted that the conduct of the appellant no. 2
is also unworthy of being wife of the deceased as she never made any complaint
to her father-in-law (PW-6) or approached the police station regarding missing
of his husband (deceased). Moreover, certain clothes and belongings of the
victim have been recovered by the Investigating Officer on the pointing of the
accused persons, as per seizure list (Ext.3). Therefore, appellants may not be
enlarged on bail.
5. We have considered the submissions of learned counsel for the parties
and taken note of the materials relied upon by them from the lower court
records including the period of custody undergone by both the appellants. It
appears on consideration of the materials on record and the submissions of the
parties that the dead body of the victim has not been recovered. Seizure of
certain clothes and articles of the victim have been made at 16.30 hrs. on
.3.
10.08.2015 i.e. before arrest of the accused / appellants on the same day i.e.
10.08.2015 at 17.35 hrs. and 17.30 hrs. respectively; confession have been
recorded at 18.30 hrs. and 18.00 hrs. respectively. Appellants have also
remained in custody since 10.08.2015 i.e. about six years by now. Taking into
account all these facts and circumstances, we are inclined to enlarge the
appellants on bail by suspending their sentence during pendency of this appeal.
Accordingly, Appellants above named shall be released on bail, during
pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees ten
thousand) each with two sureties of the like amount each, to the satisfaction of
learned Additional Sessions Judge-IV, Bermo at Tenughat in Sessions Trial No.
323/2015 with the condition that the appellants and their bailors shall not
change their address or mobile nos. without permission of the learned Trial
Court. I.A. No. 3076/2021 is allowed.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Ranjeet/
