Subhash Mahto vs The State Of Jharkhand
2021 Latest Caselaw 1921 Jhar

Citation : 2021 Latest Caselaw 1921 Jhar
Judgement Date : 17 June, 2021

Jharkhand High Court

Subhash Mahto vs The State Of Jharkhand on 17 June, 2021

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                          Cr. Appeal (DB) No. 128 of 2015

Subhash Mahto, son of late Panchanan Mahto, resident of village Kamla
Bera, PO Pipla, PS MGM (Muffasil), District- East Singhbhum.
                                                     ... ...     Appellant

                                    Versus
The State of Jharkhand                                      ...     ...     Respondent
                                    -------

(Through V.C.)

CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Abdul Kalam Rashidi, Advocate;

Mr. Afaque Rashidi, Advocate For the State : Mrs. Priya Shreshtha, Spl.PP

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th Order No. 10/Dated 17 June, 2021 IA No. 4465 of 2020 This is third attempt by the appellant seeking suspension of sentence inflicted upon him in ST No. 171 of 2013.

The appellant filed Criminal Appeal (DB) No. 128 of 2015 challenging the judgment dated 13.03.2013 passed in Sessions Trial Case No. 171 of 2013 and the said criminal appeal was admitted for hearing vide order dated 04.03.2015.

Prayer of the appellant for suspension of sentence was declined vide order dated 09.04.2015 which reads as under:

"Heard learned counsel for the appellant at length. Learned counsel, praying for suspension of substantive sentence during the pendency of the appeal, has taken the Court to some material evidence available on record. However, we refrain from commenting upon the merits of the prosecution case at this stage, lest it may prejudice the case of either side at the appropriate stage of hearing the main appeal and keeping in view the totality of facts and circumstances of the present case, the appellant, who remained in custody as under trial prisoner also, does not deserve the relief asked for.

Prayer declined."

The appellant thereafter moved IA No. 775 of 2017 seeking suspension of sentence. However, with a liberty to move a fresh application after completing custody of five years the said application was permitted to be withdrawn.

-2- Cr. Appeal (DB) No. 128 of 2015

Criminal Appeal (DB) No. 128 of 2015 was listed at the instance of the learned counsel for the appellant who had tendered a mention slip.

On 16.06.2021 the following order was passed by this Court:

"IA No. 4465 of 2020 This Interlocutory Application has been listed today at the instance of Mr. Abdul Kalam Rashidi, the learned counsel for the appellant who has tendered a mentioning slip.

Mrs. Priya Shreshtha, the learned Spl.PP appears for the State.

On a pointed query from the Court what is the urgency in the matter Mr. Abdul Kalam Rashidi, the learned counsel for the appellant states that vide order dated 28.03.2017 the appellant was granted liberty by a coordinate Bench of this Court to renew the prayer for suspension of sentence on completion of custody of five years.

Post IA No. 4465 of 2020 tomorrow, that is, 17.06.2021."

The appellant has been convicted and sentenced to undergo RI for life and a fine of Rs.25,000/- under section 302/34 of the Indian Penal Code with a default stipulation to undergo further RI for six months.

Mango (MGM) PS Case No. 614 of 2012 was registered against the appellant on the basis of the fardbeyan of Santosh Kumar Mahto who was son of the deceased Prafulla Mahto. During the trial prosecution has examined nine witnesses out of whom PW6 and PW7 are the sons of the deceased who had claimed to have seen the appellant fleeing away from the place of occurrence carrying a blood stained sword.

Mr. Abdul Kalam Rashidi, the learned counsel for the appellant submits that the witnesses have admitted that it was a dark night and the so-called eyewitnesses have claimed that they have seen the appellant fleeing away from the place of occurrence in the torch light from a distance of about 50-60 feet. The aforesaid facts render PW6 and PW7 unreliable witnesses and only on account of past enmity and suspicion they have implicated the appellant in the crime. It is further submitted that the place of occurrence was about 1 km from the village and in absence of any other independent witness there would be substantial doubt on the testimony of PW6 and PW7. Mr. Abdul Kalam Rashidi, the learned counsel for the appellant would further submit that the evidence of recovery of blood-stained sword at the instance of the appellant from an open field allegedly concealed inside the earth is not sufficient to convict the appellant for murder.

-3- Cr. Appeal (DB) No. 128 of 2015

Mrs. Priya Shreshtha, the learned Spl.PP would however oppose the prayer for suspension of sentence and submit that the judgment in Sessions Trial Case No. 171 of 2013 is based on proper appreciation of the evidence and therefore the appellant is not entitled for bail.

The contentions raised by the learned counsel for the appellant are contentious issues, which can be decided only at the final hearing of this criminal appeal. The appellant was arrested on 17.12.2012 and since then he is in custody. He has now undergone custody of more than eight and half years.

The criminal appeals in which the convicts have remained in jail for 12-13 years and in few cases about 14 years are yet to be listed for hearing and while so there is remote chance of this criminal appeal being heard in near future.

Having regard to the aforesaid facts and circumstances in the case, we are inclined to suspend the sentence awarded to the appellant in Sessions Trial Case No. 171 of 2013.

Accordingly, the appellant, namely, Subhash Mahto is directed to be released on bail, during pendency of this criminal appeal, on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand only) with two sureties of the like amount each, out of which one of the bailors shall be Class-I legal heir of the appellant, to the satisfaction of the learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur in connection with Sessions Trial Case No. 171 of 2013 with the following conditions:

(i) He shall make himself available through his counsel whenever this criminal appeal is listed for hearing;

(ii) Aadhaar Card and proof of residence of the appellant shall be duly verified by the Investigation Officer and;

(iii) the appellant shall quarterly (every three months) update his mobile number and place of residence, if there is any change, to the concerned police station.