Jharkhand High Court
Dibar Bodra vs The State Of Jharkhand on 21 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 436 of 2020
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Dibar Bodra --- --- Appellant
Versus
The State of Jharkhand. -- --- Respondent
---
CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
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For the Appellant : Mrs. Swati Shalini, Adv.
For the State : Mr. Anup Pawan Topno, A.P.P.
---
06/21.06.2021 Heard learned counsel for the appellant Mrs. Swati Shalini and
learned A.P.P. Mr. Anup Pawan Topno for the State on the prayer for
suspension of sentence made through I.A. No.666 of 2021.
This appellant along with four others stand convicted for the
offence punishable under Sections 302, 201 read with Section 34 I.P.C. by the
impugned judgment dated 28th June 2019 passed in Sessions Trial
No.454/2013 by the court of learned Additional Sessions Judge-I at Ghatsila
and sentenced to undergo RI for life with a fine of Rs.10,000/- each for the
offence punishable under Section 304/34 I.P.C. and further sentenced to
undergo RI for four years with a fine of Rs.5,000/- each for the offence
punishable under Section 201/34 I.P.C. with default sentences by the
impugned order of sentence dated 29th June 2019. All these substantive
sentences have been ordered to be run concurrently.
Learned counsel for the appellant submits that as per the F.I.R.
lodged on 17th October 2012, the son of the informant was missing 3-4 days
after Raksha Bandhan i.e. in the month of August. It is submitted that the
appellant along with four other accused were said to have made confession
before the Panchayat. However, during deposition the Panchayat Assistant
P.W.4 turned hostile, though P.W.5 Pradhan deposed that the accused persons
have made confessions. However, there is no documentary proof of such
confession before the Panchayat which is extra-judicial confession. There is
no corroboration also on the confessional statement. Apart from that, as per
the prosecution case the appellant was arrested at 13.15 hours, his confession
was recorded at 13.30 hours and the alleged recovery of the skeleton of the
deceased was undertaken at 15.15 hours on 24th November 2012. However,
the seizure list shows that the body of the deceased was recovered in two
parts: the skull and the rest of the bones. As per the statement of the
Investigating Officer (P.W.7) during trial, the skeleton was kept in Malkhana.
Such material seizure was not produced in court either. There is no report of
the SFSL. That the skeleton was of the deceased was never established in a
case of such circumstantial evidence where the F.I.R. was instituted after more
than two months of the incidence and the recovery of the skeleton took place
even 1 month and 7 days after the institution of the F.I.R. on the purported
confessional statement of the appellant. The statement of P.W.2 that he could
identify the body of his brother by his hairs, is unbelievable since the recovery
of the skeleton has been made after three months of his missing with no other
clothes or distinct ornaments, etc. are alleged to be appearing on the skeleton
as an identifiable object. It is submitted that the conduct of the informant in
lodging the F.I.R. after two months of the alleged incidence of missing is
inexplicable. It is further submitted that four other convicts have been granted
bail by a Coordinate Bench of this Court vide order dated 11 th November
2020 passed in Cr. Appeal (DB) No.1161/2019 taking into note that there is
no eye-witness to the occurrence and that even the extra-judicial confession
made before the Panchayat was not supported by one of the witnesses i.e.
P.W.4 who turned hostile. In those circumstances, the present appellant who
has remained in custody for about 1 year and 8 months during trial and since
his conviction for four years by now, may be enlarged on bail by granting
privilege of suspension of sentence.
Learned A.P.P. has opposed the prayer. He submits that the
materials on record establish the circumstances leading to the guilt of the
appellant as it was on his confession that the dead body of the deceased was
recovered from a jungle on 24th November 2012.
We have considered the submissions of learned counsel for the
parties and taken into note the relevant material evidence on record as borne
out from the lower court records.
It is apparent that the present case is that of circumstantial
evidence as there is no eye-witness to the occurrence. The F.I.R. has been
instituted after about two months of the incidence of missing by father of the
deceased on 17th October 2012. Though the recovery of the skeleton i.e. skull
and bones have been made on the confessional statement of the appellant on
24th November 2012 after more than three months of the incidence, but there
is no report of the SFSL to show that it was of the deceased only. The four
other convicts who were together named in the F.I.R. and have been tried with
this appellant, have been granted privilege of suspension of sentence by a
Coordinate Bench of this Court taking into account that one of the witnesses
in the Panchayat P.W.4 turned hostile during trial.
In the aforesaid facts and circumstances, we are inclined to grant
the privilege of suspension of sentence to this appellant during pendency of
the appeal. Appellant is directed to be released on bail on furnishing bail
bonds of Rs. 10,000/- (rupees ten thousand) with two sureties of the like
amount, each, to the satisfaction of learned Additional Sessions Judge-I at
Ghatsila in connection with Sessions Trial No.454 of 2013 with the condition
that the appellant as well as his bailors shall not change their addresses and
mobile numbers, if any, without prior permission of the learned trial court.
I.A. No.666/2021 stands disposed of.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Shamim/
