Jharkhand High Court
Bitua Kahar vs The State Of Jharkhand on 21 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (DB) No. 456 of 2019
Bitua Kahar ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellant : Mr. A.K. Kashyap, Sr. Advocate.
For the Respondent : Mr. Bhola Nath Ojha, A.P.P.
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06/Dated: 21/11/2022
I.A. No.6980 of 2021
Heard learned senior counsel for the appellant, Mr. A.K. Kashyap and
learned A.P.P., Mr. Bhola Nath Ojha on the renewed prayer for suspension of
sentence of the appellant made through I.A. No. 6980/2021.
This appellant along with one Ajay Singh have been convicted for the
offence punishable under Section 302/34 of the Indian Penal Code and
sentenced to undergo imprisonment for life with fine of Rs. 10,000/- each with
a default sentence vide impugned judgment of conviction dated 05.04.2019 and
order of sentence dated 11.04.2019 passed in S.T. No. 298/2017 by the court of
learned Additional Sessions Judge-II, Palamau at Daltonganj.
Learned senior counsel for the appellant submits that earlier the prayer for
suspension of sentence of this appellant was dismissed as not pressed vide order
dated 28.08.2019. It is submitted that though five persons were put on trial, but
three have been acquitted. The only witness to the crime is the informant-wife
P.W.-4, who alleges assault by the other convict Ajay Singh by tangi and by
this appellant by lathi. P.W.-1 & 2 have turned hostile. It is submitted that the
occurrence took place at around 7:30 P.M. in the night and the F.I.R. was
registered in the next morning at 7:50 A.M.
Learned senior counsel for the appellant submits that the medical officer,
the Doctor (P.W.-5), who conducted the post-mortem on the deceased husband
of the informant and adduced the post-mortem report as Exhibit-1 has found
two injuries, which are sharp and penetrating over lateral side of eye-brow
penetrating up to brain matter and over left side of temporal region with cutting
of upper part of pinna, deep up to brain matter, which can be attributed to the
assault committed by the other convict Ajay Singh by axe. As per the doctor,
the cause of death is shock due to injury to brain matter. As per the case of the
informant and the prosecution also at best this appellant is attributed with
assault by lathi, but there are no clear injuries found during post-mortem
examination, except a vague statement by the medical officer during trial that
blood clots were found in the stomach and as such, use of lathi for this wound
cannot be ruled out. It is submitted that in such circumstances, the appellant,
who is in custody since 22.11.2017 i.e. 5 years as on date, against the sentence
of life, may be enlarged on bail. It is submitted that, there are no chances of
early hearing of this appeal.
Learned A.P.P. has opposed the prayer. He submits that the statement of
the prosecutrix is truthful and is not exaggerated. Both the convicts have
together with common intention inflicted injuries by tangi and by lathi to cause
death of the husband of the informant. As such, appellant may not be enlarged
on bail.
We have considered the submissions of learned counsel for the parties and
taking note of the materials relied upon from the lower courts record, including
the period of custody undergone by the appellant. Having regard to the
materials on record and that the medical evidence of P.W.-5 Doctor including
the post-mortem report (Exhibit-1) shows two penetrating and sharp cutting
wound which can be attributable to the weapon axe said to have been used by
the other convict Ajay Singh and that the appellant has remained in custody for
5 years till date, we are inclined to enlarge the appellant on bail by suspending
the sentence during pendency of the appeal on furnishing bail bond of Rs.
10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to
the satisfaction of learned trial court / learned District & Additional Sessions
Judge-II, Palamau at Daltonganj in connection with S.T. No. 298/2017, subject
to the conditions that one of the bailors should be the close relative of the
appellant and the other should be the deponent of this interlocutory application;
appellant as well as his bailors shall not change their residential address and
mobile numbers, if any, without prior permission of the learned trial court and
shall submit Aadhar Cards at the time of his release.
I.A. No. 6980/2021 is allowed.
(Aparesh Kumar Singh, J.)
(Kailash Prasad Deo, J.)
Sunil-Rohit/
