Sanoj Malakar vs The State Of Jharkhand
2022 Latest Caselaw 4264 Jhar

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

                      Criminal Appeal (DB) No. 689 of 2015

Sanoj Malakar, s/o Ram Briksha Malakar, r/o Malapatti, Jharudih, PS, PO
and District Dhanbad                                     .... Appellant

                                        Versus
The State of Jharkhand                                        ... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant : Mr. Jitendra Singh, Advocate Ms. Akanksha Anil, Advocate For the State : Mrs. Priya Shrestha, Spl. PP

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Order No.08/ Dated: 18th October 2022

I.A. No. 3245 of 2022 By virtue of the order dated 9th June 2022 passed by Hon'ble the Chief Justice, High Court of Jharkhand on the administrative side, this application has been assigned to DB-III.

This application has been filed seeking suspension of sentence awarded to Sanoj Malakar in Sessions Trial No. 319 of 2014.

The appellant has been convicted and sentenced to RI for life with fine of Rs.20,000/- under section 302 of the Indian Penal Code with default stipulation to undergo SI for 6 months and further sentenced to RI for 3 years with fine of Rs.5,000/- under section 27 of the Arms Act with default stipulation to undergo SI for 3 months.

Mr. Jitendra Singh, the learned counsel for the appellant submits that the judgment in Sessions Trial No. 319 of 2014 is liable to be set aside on the ground that only on the basis of recovery of crime weapon conviction under section 302 of the Indian Penal Code cannot be recorded and while so the appellant who is in custody for about 9 years is entitled for grant of bail.

Mrs. Priya Shrestha, the learned Special PP has opposed I.A. No. 3245 of 2022 on the ground that at this stage elaborate scrutiny of the evidences laid in Sessions Trial No. 319 of 2014 is not required.

In Sessions Trial No. 319 of 2014, Rahul Singh, Raushan Singh @ Raushan Kumar and Preetam Singh who were made accused along with the appellant have been acquitted of the criminal charges framed against them and the charge of criminal conspiracy has failed against all.

Admittedly, the only evidence against the appellant on the basis of which the judgment of conviction has been rendered is that the pistol allegedly used in the crime which was concealed under the bushes was recovered at the instance of the appellant.

In "Abdulwahab Abdulmajid Baloch v. State of Gujarat" (2009) 11 SCC 625 the Hon'ble Supreme Court has observed that even if the crime weapon which has been found to be used in the crime is recovered at the instance of the accused the same cannot be made basis for conviction for the offence under section 302 of the Indian Penal Code.

Mr. Jitendra Singh, the learned counsel for the appellant has referred to the judgment in "Brijesh Mavi v. State (NCT of Delhi)" (2012) 7 SCC 45 to submit that the appellant at best could have been prosecuted for the offence under the Arms Act for which he was, in fact, prosecuted but by the judgment rendered in Criminal Appeal No. 73 of 2019 has been acquitted of the charge framed under sections 25(1-B)(a) and 26(1) of the Arms Act.

Having regard to the aforesaid facts and circumstances in the case, the appellant, namely, Sanoj Malakar is directed to be released on bail, during pendency of this appeal, on furnishing bail bond of Rs. 10,000/- (rupees ten thousand only) with two sureties of the like amount each to the satisfaction of the learned Sessions Judge, Dhanbad in Sessions Trial No. 319 of 2014, subject to the conditions that:

(i) the appellant shall deposit the fine amount within six weeks from today, failing which he shall surrender before the Court concerned;

(ii) the appellant shall remain physically present or through his authorized counsel in the Court whenever this criminal appeal is listed for hearing in the Court, however, if no one appears on his behalf on the day when this criminal appeal is

listed on Board for hearing the State may file an application for recall of this order, and;

(iii) the appellant shall disclose his present address and mobile number to the Investigating Officer of the case. I.A. No. 3245 of 2022 stands allowed.

Let a copy of this order be transmitted to the Court concerned and the concerned Jail Superintendent through "Fax".

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) RKM/-