Upendra Yadav vs The State Of Jharkhand
2021 Latest Caselaw 4766 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Criminal Appeal (DB) No. 2205 of 2017
            1. Upendra Yadav
            2. Adhiman Yadav
            3. Lalpati Yadav
            4. Tapasya Yadav
            5. Moti Yadav                                             ....Appellants
                                             Versus
            The State of Jharkhand                                    ... Respondent
                                       ----

            CORAM:         Hon'ble Mr. Justice Aparesh Kumar Singh
                          Hon'ble Mrs. Justice Anubha Rawat Choudhary
                                       ---

            For the Appellants : Mrs. Jasvindar Mazumdar, Advocate
            For the State       : Mrs. Niki Sinha, A.P.P
                                             ---
05/13.12.2021             Heard learned counsel for the appellants, Mrs. J. Mazumdar and

learned A.P.P, Mrs. Niki Sinha on the prayer for suspension of sentence made by appellant nos. 2 and 3, namely, Adhiman Yadav and Lalpati Yadav through I.A. No. 4237 of 2021.

Appellants along with four other co-convicts, namely, Bhaurick Yadav, Moti Lal Yadav Yogendra Yadav, Bishram Yadav, stand convicted by the impugned judgment dated 25.11.2017 passed in Sessions Trial No. 333 of 2005 by the Court of learned Additional Sessions Judge-XII, Dhanbad. All the five appellants along with co-convict, Yogendra Yadav stand convicted for the offence punishable under Sections 147,148,341,302/149 of I.P.C; co-convicts, Bishram Yadav, Bhaurick Yadav and Motil Lal Yadav stand convicted for the offence punishable under Sections 147,148,341,302/149/109 of I.P.C. All the convicts have been acquitted from the charges under Section 307 of I.P.C. These appellants along with convict Yogendra Yadav have been sentenced to undergo R.I for 2 years each under Section 147 and 148 of I.P.C; R.I. for 1 month under Section 341 of I.P.C and they have been further sentenced to undergo life imprisonment with a fine of Rs. 5,000 each under Section 302/149 of I.P.C. Co- convicts, namely, Bishram Yadav, Bhaurick Yadav and Moti Lal Yadav have been sentenced to undergo R.I for 2 years under Sections 147 and 148 of IPC; R.I for one month under Section 341 of I.P.C and they have been further sentenced to undergo life imprisonment with a fine of Rs. 5,000/- under Section 302/149/109 of I.P.C, by the impugned order of sentence dated 27.11.2017. All the sentences have been ordered to run concurrently.

Learned counsel for the appellants submits that earlier, prayer for suspension of sentence of appellant nos. 1, 4 and 5 was allowed by coordinate Bench of this Court vide order dated 2nd May, 2018. Other four co-convicts

namely Bishram Yadav, Bhaurick Yadav, Motilal Yadav and Yogendra Yadav who have been convicted for the offence punishable under Sections 147, 148, 341, 302/149/109 of I.P.C, have been enlarged on bail by order dated 13th March, 2018 passed in Cr. Appeal (DB) No. 2204 of 2017. The prayer for suspension of sentence of appellant nos. 2 and 3 has been moved for the first time. Both these appellants are in custody for about three years and one month during trial and thereafter since their conviction on 25th November, 2017 i.e., about 7 years and 2 months. It is submitted that prosecution witness nos. 1 to 4 have been declared hostile. P.W. 10 is the Informant and claims to be the injured eye witnesses, but his injury report has not been brought on record. No post-mortem report has been brought on record, neither the doctor, who conducted the post-mortem, has been examined. Prosecution has alleged that these two appellants assaulted the deceased, Jalim Yadav with lathi and Farua and the informant and other prosecution witness like P.W. 5 claiming to be an eye witness, have made omnibus allegation against other co-convicts, who have been enlarged on bail. Prosecution witness nos. 6, 8 and 9 have also made similar statement. As such, on omnibus allegations and bald statements without any corroborative medical evidence, conviction has been recorded against all the accused persons with the aid of Section 149 of I.P.C Appellants having remained in custody for about 7 years and 2 months may also be enlarged on bail on similar consideration as that of co-convicts.

Learned A.P.P. has opposed the prayer. It is submitted that P.W. 10 is the Informant who claims to be an eye witness and also an injured witness whose allegation of assault by these two appellants by lathi and Farua upon the deceased has been corroborated by other eye witnesses like P.Ws. 5,7, 8 and 9. However, learned counsel for the State does not dispute that the doctor, who conducted the post-mortem on the dead body of the deceased, has not been examined, neither post-mortem report has been adduced. Therefore, appellants may not be enlarged on bail.

We have considered the submission 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 the appellant nos. 2 and 3 and also gone through the orders granting bail to other co-convicts as referred to above.

Having regard to the facts that the conviction has been recorded with the aid of Section 149 of I.P.C and that there is no medical evidence corroborating the specific assault on the deceased by the weapons allegedly used by these two appellants and that the informant and other witnesses like P.Ws 5, 6, 8 and 9 as well making statement against all other accused persons, we are inclined to grant bail to the appellant nos. 2 and 3 by suspending their sentence during pendency of this appeal keeping into account the period of custody i.e., 7 years and 2 months undergone by these appellant nos. 2 and 3. Accordingly, appellant nos. 2, Adhiman Ydadv and 3, Lalpati Yadav shall be released on bail, during the 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-XII, Dhanbad in connection with Sessions Trial No. 333 of 2005, subject to the conditions that appellant nos. 2 and 3 and their bailors shall not change their address or mobile number without permission of the learned Trial Court. Appellant nos. 2 and 3 and their bailors shall also furnish photo copy of their Aadhar Card before the learned Trial Court at the time of their release.

I.A. No. 4237 of 2021 stands allowed.

Let the name of Mrs. Niki Sinha, learned A.P.P appear in the cause list henceforth in place of the erstwhile learned A.P.P, Mr. Gouri S. Prasad.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Jk/