Jharkhand High Court
Kishore Kumar Paswan @ Kishore ... vs The State Of Jharkhand on 12 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 571 of 2021
....
Kishore Kumar Paswan @ Kishore Paswan ...... Appellant
Versus
The State of Jharkhand ...... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. R. S. Mazumdar, Advocate
Mrs. J. Mazumdar, Advocate
For the State : Mr. A. K. Tiwari,A.P.P.
For the Informant : Mr. Shekhar Prasad Sinha, Advocate
.....
I.A.(Cr.) No. 2016 of 2022
04/12.04.2022 Heard learned Senior Counsel for the Appellant and
learned APP for the State and learned counsel for the informant.
2. The present Interlocutory Application No. 2016 of 2022
has been filed by the appellant for bail during pendency of the
present criminal appeal.
3. The present Criminal Appeal has been filed against the
judgment of conviction and order of sentence dated 29.11.2021
passed by the learned Additional Sessions Judge-II, Dhanbad in S.
T. No. 69 of 2004 arising out of Kenduadih P. S. Case No. 122 of
2002 corresponding to G. R. No. 3050 of 2002 whereby the
appellant has been convicted for the offence under Section 307 of
the Indian Penal Code and under Section 27 of the Arms Act and
sentenced R.I. for a period of seven (7) years with a fine of Rs.
20,000/- under Section 307 of the Indian Penal Code and in default
of payment of fine, he has further been sentenced to undergo S.I.
for one year and R.I. for three years under Section 27 of the Arms
Act and also a fine of Rs. 5000/- and in default of payment, he has
been sentenced to further undergo S.I. for one month and all the
sentences have been directed to run concurrently.
4. It has been submitted by the learned Senior Counsel for
the Appellant that as per the allegation made in the FIR, the
brother of the informant is alleged to have sustained gun shot
injury. However, doctor examined as P.W.-4, Dr. Ajai Kumar
Sinha, has not found any firearm injury on the person of the
injured. It is submitted that injured Nageshwar Yadav has been
examined as P.W.-12 and has stated during evidence that he had
sustained injury on the left palm alleged to be caused by the
firearm by this appellant. However, P.W.-4, Dr. Ajai Kumar Sinha
has found simple injury on left palm of the injured in the injury
report marked as Ext. 1/2. It is further submitted that apart from
P.W.-12, there is no other eye witnesses of the occurrence. It is
submitted that P.W.-2 is seizure list witness, but he has been
declared hostile and has stated that nothing was seized before him.
It is submitted that I.O. i.e. P.W.-13 had not sent the seized
Khokha, seized bloodstained clothes to F.S.L. and no seized
material was provided during trial. It is further submitted that
P.W.-1, Dr. D. Mishra, who is the Doctor had only examined the
X-ray plate. It is submitted that co-convict Alok Rai, who is said to
have fired on the injured Nageshwar Yadav, has been granted bail
by the Co-ordinate Bench of this Court in Cr. Appeal (S.J.) No.
556 of 2021 vide order dated 28.02.2022 on the similar allegation.
It is submitted that the there is contradiction in the evidence of the
prosecution witness and medical evidence and the appellant is in
custody after conviction and as such, he may be enlarged on bail.
5. On the other hand, learned counsel for the State has
opposed the bail. It is submitted that the appellant had fired upon
the injured P.W.-12, Nageshwar Rai and P.W.-6, Lallan Yadav and
P.W.-9, Kalawati Devi and P.W.-12 had supported the allegation
against him and as such, prayer for bail is fit to be rejected.
6. On the other hand, learned counsel for the informant, has
submitted that the appellant had also fired upon the injured and
injured sustained firearm injury in the palm caused by firearm by
this appellant. Learned counsel for the informant has further
submitted that doctor has found four injuries on the injured P.W.-
12. Learned counsel for the informant has further submitted that
all the accused persons including the appellant had assaulted by
Bhujali and firearms to the injured Nageshwar Rao and as such
prayer for bail is fit to be rejected.
7. From perusal of the Lower Court Records and considering
the submissions of learned counsel for the both the sides, it reveals
from the evidence of doctor examined as P.W.-4 that he has found
four lacerated injures on the persons of the injured and all the
injuries were lacerated and as per evidence of P.W.-4 i.e. the
Doctor, no firearm injury was found. It transpires that there is
contraction of evidence of P.W.-1, Dr. D. Mishra and P.W.-4, i.e.
Dr. Ajay Kumar Sinha on the question of sustaining firearm injury
by P.W.-12. It transpires that co-convict Alok Rai, who is said to
have fired on the injured Nageshwar Yadav, has already been
granted bail by the Co-ordinate Bench of this Court in Cr. Appeal
(S.J.) No. 556 of 2021 vide order dated 28.02.2022. This appears
to be a case of contradiction in ocular evidence and Medical
Evidence. It reveals from evidence of I.O. i.e. P.W.-13, Jai Prakash
Singh that seizure articles of seizure list, marked as Ext. 5 and Ext.
12/2, were not produced during trial.
8. On consideration of the aforesaid fact and on the fact that
co-convict Alok Rai has already been granted bail by the Co-
ordinate Bench of this Court, during pendency of this Criminal
appeal, the appellant, Kishore Kumar Paswan @ Kishore Paswan
is directed to be released on bail on furnishing bail bond of Rs.
20,000/- (Rupees Twenty Thousand) with two sureties of the like
amount each to the satisfaction of learned Additional Sessions
Judge-II, Dhanbad in S. T. No. 69 of 2004 arising out of
Kenduadih P. S. Case No. 122 of 2002 corresponding to G. R. No.
3050 of 2002, subject to the condition that one of the bailor must
be own relative of the appellant having landed property in his/her
specific name in the district of Dhanbad and the appellant shall file
an Undertaking before the Court below that he will not get
indulged any such type of crime in future failing which, the
prosecution will be at liberty to take steps for cancellation of his
bail before this Court and he will remain present at the time of
final hearing of this appeal, failing which his bail shall be
cancelled and the appellant shall not change his address and his
mobile number during the pendency of the appeal and shall also
deposit the certified copy of is Aadhar Card at the time of
furnishing bail bonds.
9. Accordingly, I.A. No. 2016 of 2022 stands disposed of.
(Sanjay Prasad, J.)
Kamlesh/
