Nageshwar Sao vs The State Of Jharkhand
2023 Latest Caselaw 1483 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Cr. A. (DB) No. 1981 of 2017
Nageshwar Sao                            ...      Appellant
                             Versus
The State of Jharkhand        ..... ...      ...      Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. Arwind Kumar, Advocate For the State : Mr. Vishwanath Roy, Spl P.P.

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Order No. 12/Dated 5th April, 2023 I.A. No. 2246 of 2023

The instant interlocutory application has been filed

under Section 389(1) of the Cr. P.C for suspension of

sentence passed in consequence of the judgment of

conviction dated 05.09.2017 and order of sentence dated

08.09.2017 in Sessions Trial No.127 of 2014 by learned

Additional Sessions Judge-IV, Chatra, whereby and

whereunder the appellant has been convicted under

Section 302 of the Indian Penal Code and under Section

27(1) of the Arms Act and directed to undergo rigorous

imprisonment for life and fine of Rs.1,000/- each for the

offence under Section 302 of the I.P.C and in default of

payment of fine to undergo simple imprisonment for six

months. Further he has also been sentenced to undergo R.I

for 3 years for the offence under section 27(1) of the Arms

Act and to pay fine of Rs.1,000/- and in default of payment

of fine he shall undergo S.I for six months. He is also

directed to pay the compensation of Rs. 25,000/- under

section 357 of the Cr. P.C to the informant. Both the

sentences are directed to run concurrently.

2. The matter was heard on 22nd March, 2023, wherein

learned counsel for the appellant took the following

grounds for suspension of sentence of the appellant:

(I).That earlier on two occasions the application filed

for suspension of sentence although has been rejected

but after its rejection one another interlocutory

application was filed being I.A. No. 2581 of 2021 which

was dismissed as not pressed, as would appear from

order passed by the Co-ordinate Bench of this Court

vide order dated 17.08.2021.

(II).That after order dated 17.08.2021 having been

passed the sentence of co-convict, namely, Komal Sao

was suspended vide order dated 09.02.2023 in Cr.

Appeal (DB) No.1210 of 2022. Argument was advanced

that case of the instant appellant is similar to that of

co-convict - Komal Sao, as such the appellant may be

released on bail by suspending his sentence.

(III).So far merit of the case is concerned, argument

was advanced showing the infirmities in the impugned

judgment more particularly narration of the story in

the fardbeyan wherein offence said to have been

committed on 20.01.2014 at about 6.45 p.m. but very

surprisingly the written application communicating

about the occurrence has been given to the concerned

police station only on 21.01.2014.

The further infirmities has been pointed out by

referring to the testimony of the P.W-4, the informant,

wherein, the informant has stated in his testimony

that immediately after the injury having been

sustained to his father, he was carried with him in

hospital but in route he has died. The question has

been raised that when that is the version of the P.W-4

who has deposed in his testimony that while going to

the hospital his father has died on 20.01.2014 and as

such why the F.I.R has been instituted after lapse of

about 20 hours i.e. on 21.01.2014 at about 11.00 a.m.

in the morning.

Further infirmities have been pointed out by

referring to the inquest report wherein it has been

shown that the dead body was lying in the route. The

said inquest report, according to the learned counsel

for the appellant, is in contradiction to the testimony

of P.W-4, wherein, the deposition has been made to

the effect that while his father was being carried to the

hospital he died before reaching to the hospital,

meaning thereby, his version is totally in contradiction

to the inquest report wherein it has been referred that

the dead body lying at 11.00 p.m. at the place of

occurrence.

The further submission has been raised by

referring to the testimony of the investigating officer,

P.W-6 wherein he has deposed that the fact about the

assault being given by the appellant, namely,

Nageshwar Sao has not been disclosed to him.

(IV).That the appellant has already completed more

than nine years of custody and further one of his co-

convict, namely, Komal Saw has already been directed

to be released on bail after keeping the sentence in

abeyance vide order dated 09.02.2023 as also he has

got case on merit.

3. This Court taking into consideration the aforesaid

submission as also after going through the Lower Court

Record called upon the State to file objection as to why the

sentence in connection with Sessions Trial No.127 of 2014

passed by learned Additional Sessions Judge-IV, Chatra be

not kept in abeyance.

4. In pursuance thereto, objection by way of affidavit

has been filed by the State wherein at paragraph 6 it has

been stated that earlier the appellant was released from jail

on parole after which he threatened the informant/victim

parties, however, no complaint for such threating was made

to the police because of fear. It has further been stated

since appellant is involved in a case of murder and is an

anti-social element, therefore, if he will be released on bail

there is every possibility of violation of law and order

situation. The aforesaid averment has been made in

accordance with the communication dated 02.04.2023

made by the Inspector of Police-cum-Officer-In-Charge,

Tandwa Police Station, Chatra to the learned Special Public

Prosecutor.

5. In reply, learned counsel for the appellant has

submitted that appellant was never released on parole

rather he was on provisional bail due to demise of his

mother, as would appear from order dated 14.09.2021 as

such it is incorrect on the part of respondent that the

appellant was released on parole.

It has further been argued that ground which has

been taken for rejection of the prayer for suspension of the

sentence of the appellant that while he was released on bail

he had threatened the informant/victim party but very

surprisingly no complaint whatsoever has been made by

the informant/victim party even though the appellant had

surrendered on due date before the learned trial Court, as

directed by this Court vide order dated 14.09.2021.

Further there is no adverse report before the

learned trial Court and as such on the basis of said vague

ground, the instant application is not deserve to be rejected

unless the State comes with the cogent evidence that due to

release of the appellant from judicial custody, there would

be adverse impact on the society but there is no reference

to that effect. Therefore, the objection so made by the

respondent-State is not fit to be accepted.

6. We have heard learned counsel for the parties and

on appreciation thereof as also after going through the

objection so filed by the respondent-State wherefrom it is

evident that the deponent has not averred a single word as

to how the case of the present appellant is different to that

of co-convict, namely, Komal Sao. There is also no cogent

reason as to why the informant/victim party did not file any

complaint on the issue of threating during the period

provisional bail of the appellant was granted by this Court

vide order dated 14.09.2021.

7. This Court, taking into consideration the averments

made in the objection affidavit as also the fact that co-

convict has been released on bail, is of the view that the

interlocutory application being I.A. No. 2246 of 2023

deserves to be allowed.

8. Accordingly, the appellant, named above, is directed

to be released on bail during pendency of appeal on

furnishing bail bond of Rs.25,000/- (Twenty Five

Thousand) with two sureties of the like amount, to the

satisfaction of the learned Additional Sessions Judge-IV,

Chatra in connection with Sessions Trial No.127 of 2014

corresponding to G.R. No. 86 of 2014 [Tandwa P.S. Case

No. 08 of 2014].

9. Interlocutory application being I.A. No. 2246 of

2023 is allowed.

10. It is made clear that any observation made

hereinabove will not prejudice the case of the appellant on

merit, since, the criminal appeal is lying pending before this

Court for hearing.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Alankar/-