Jharkhand High Court
Md. Niyaz @ Md. Niyaz Khan vs The State Of Jharkhand on 21 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 614 of 2020
Md. Niyaz @ Md. Niyaz Khan ....Appellant
Versus
The State of Jharkhand ... Respondent
----
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
---
For the Appellant : M/s. B.M.Tripathy, Nutan Kumari Sharma, Advocate
For the State : Mr. Prabir Kumar Chatterjee, Spl.P.P
---
08/21.10.2021 Heard learned senior counsel for the appellant, Mr. B.M Tripathy,
assisted by learned counsel Mrs. Nutan Kumari Sharma and learned Spl.P.P,
Mr. Prabir Kumar Chatterjee on the prayer for suspension of sentence made by
this appellant through I.A. No. 3436 of 2021.
This appellant along with other accused Guddu Singh @ Guddu Rai @
Ravikant Rai stand convicted for the offence punishable under Sections 302
read with Section 34 of I.P.C and under Section 27(1) of the Arms Act by the
impugned judgment dated 15th October, 2020 passed in Sessions Trial No. 47 of
2016/Sessions Trial No. 239 of 2016 by the Court of learned Additional Judicial
Commissioner-XX, Ranchi and both the convicts have been sentenced in the
following manner, by the impugned order of sentence of the same date.
Sl. Offences U/s Sentence
No.
Imprisonment Fine Default
01. Section 302/34 of Life imprisonment Rs. 10,000/- each S.I. for 1
I.P.C year each
02. Section 27(1) of R.I for 4 years Rs.5,000/- each S.I for 6
Arms Act months each
Learned senior counsel for the appellant submits that P.Ws. 3 and 4 both
of whom claim to be the eye witnesses and the informant-father (P.W.5), who
claims to have heard from the victim while he was taken to operation theatre at
RIMS, did not specifically name the appellant as assailant. It is submitted that
the Investigating Officer has, in his deposition, stated that the statement of
P.Ws. 3 and 4, so-called eye witnesses, was recorded on 2nd December, 2012
i.e., after 22 days of the occurrence. The statement of P.W. 4 under Section 164
Cr.P.C was recorded after 54 days. The wife of the deceased whose statement
was recorded on 14th November, 2012 in which presence of P.Ws. 3 & 4 at the
place of occurrence transpired, was not examined as prosecution witnesses. It is
submitted that even if the presence of P.Ws. 3 and 4 is assumed to be correct,
the assailants are other co-accused, Guddu Singh @ Guddu Rai @ Ravikant
Rai, who has been convicted along with the appellant and one Binay Kuamr
Sharma @ Binay Sharma, who has been convicted in separate trial being
Sessions Trial No. 452/2013. It is submitted that assuming the prosecution story
projected by the informant-father (P.W.5) supported by P.Ws. 3 & 4, the
deceased had four entry wounds, as per P.W.9, the doctor, who conducted the
post-mortem and adduced the post-mortem report (Ext.-3). As per the best case
of the prosecution, the appellant along with three others had arrived on two
bikes and had accosted the car in which the deceased and the other accused,
Guddu Singh @ Guddu Rai @ Ravikant Rai were sitting.
Learned senior counsel has submitted that earlier, appellant has been
implicated in three criminal cases i.e. Bariatu (Gonda) P.S. Case No. 118/2004,
Bariatu (Gonda) P.S. Case No. 134/2004 and Bariatu P.S. Case No. 159/2003
in which he has been acquitted of the charges vide judgments dated 21.04.2006,
06.06.2007 and 30.04.2008.
It is submitted that other co-convict, Binay Kumar Sharma @ Binay
Sharma has been granted the privilege of suspension of sentence by Coordinate
Bench of this Court in Cr. Appeal (DB) No. 988 of 2015 by order dated 1st
May, 2017. Appellant is in custody since 4th January, 2016 i.e., about 5 years
and 11 months. Therefore, appellant may be enlarged on bail by suspending the
sentence.
Learned Spl.P.P. for the State has opposed the prayer. He submits that
the victim was in conscious state of mind when he disclosed the occurrence to
the informant-father while being taken for operation at RIMS and narrated the
incidence. P.Ws. 3 and 4, who are the eye witnesses have supported the
prosecution case and P.W.4, in particular, has stated that apart from Guddu
Singh @ Guddu Rai @ Ravikant Rai and Binay Kumar Sharma, this appellant
and three other persons, Arun, Munna and Sanjay were also involved in the
occurrence. Appellant was earlier implicated in three other cases for serious
offences as per the report of Senior Superintendent of Police, Ranchi bearing
Memo no. 3780 dated 20th October, 2021. Therefore, appellant 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.
On consideration of the materials on record and the statement of P.Ws.
3 & 4 as also the informant-father (P.W.5), who does not claim to be the eye
witness, firing was done by two other accused persons, one of whom Guddu
Singh @ Guddu Rai @ Ravikant Rai has also been convicted in this sessions
trial. The other assailant, Binay Kumar Sharma @ Binay Sharma has been
enlarged on bail by Coordinate Bench of this Court by order dated 1st May,
2017 in Cr. Appeal (DB) No. 988 of 2015. It further appears from the
supplementary affidavit filed on behalf of the appellant that the appellant had
been acquitted in all three cases mentioned above.
Having regard to the facts and circumstances noted above and that the
appellant is in custody since 4th January, 2016, we are inclined to grant bail to
the appellant by suspending his sentence during pendency of this appeal.
Accordingly, appellant, above-named, shall be released on bail, during the
pendency of this appeal, on furnishing bail bonds of Rs. 20,000/- (Rupees
Twenty Thousand) with two sureties of the like amount each, to the satisfaction
of learned Additional Judicial Commissioner-XX, Ranchi in connection with
Sessions Trial No. 47 of 2016/Sessions Trial No. 239 of 2016 with the
condition that appellant and his bailors shall not change their address or mobile
number without permission of the learned Trial Court. Other bailor should be a
close relative of the appellant. Appellant and their bailors shall also furnish
photo copy of their Aadhar Card before the Trial Court at the time of his
release.
I.A. No. 3436 of 2021 stands allowed.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Jk/
