Vijay Pathak vs The State Of Jharkhand
2023 Latest Caselaw 1796 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         Cr. Appeal (DB) No. 50 of 2023
                                         With
                                I.A. No. 2805 of 2023
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      Vijay Pathak                                .......             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. Vishal Kumar Trivedi, Advocate Mr. Sagar Kumar, Advocate For the Respondent : Mrs. Kumari Rashmi, APP

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th 03/Dated: 27 April, 2023

I.A. No. 2805 of 2023:

The instant application has been filed under Section 389(1) of Cr.P.C. seeking therein suspension of sentence in connection with Sessions Trial No.21 of 2018, by which the appellant has been convicted for offence committed under Section 304(B) of I.P.C. and sentenced to undergo rigorous imprisonment for ten years alongwith fine of Rs.20,000/- and in default of payment of fine, has further been directed to undergo simple imprisonment for three months.

Learned counsel for the appellant has submitted the offence under which the judgment of conviction has been passed is not at all being attracted as would appear from the finding recorded by the learned trial court read along with the testimony of the witnesses put forth on behalf of the prosecution.

The contention has been raised by referring to the testimonies of P.W.1 and P.W. 2, namely, Vimalendu Bhushan Prasad and Pradeep Kumar Pathak, respectively, as has been discussed at para-13 of the impugned judgment wherein they have deposed that the deceased lady was suffering from mental disorder for which she was being treated at Ranchi. They have further deposed that under the effect of fits, sometimes, she herself used to fall down.

Submission has also been made by referring to para-4 of the testimony that on the date of occurrence, he had seen the deceased becoming senseless due to which she fell down and sustained injury on her forehead and subsequently she expired.

As such, submission has been made that when the P.W. 1 and P.W.2, who happens to be the prosecution witnesses, themselves have not supported the prosecution version, therefore, it is a fit case where the sentence may be kept in abeyance.

This Court, considering the aforesaid submission and taking into consideration the mandate of first proviso to Section 389 of the Cr.P.C. coupled with the judgment rendered by the Hon'ble Apex Court in Somesh Chaurasia vs. State of M.P. and Anr., 2021 SCC OnLine SC 480, is calling upon the State to file objection, if any, to explain as to why the sentence be not kept in abeyance.

Let such objection, if any, be filed on or before the next of date of hearing.

Let this matter be listed on 17.05.2023.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saurabh/-