Jharkhand High Court
Indra Kotwal @ Inder Kotwal vs The State Of Jharkhand on 28 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 73 of 2023
Indra Kotwal @ Inder Kotwal .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
--------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant : Mr. S.P.Roy, Advocate.
: Mr. Purnendu Sharan, Advocate.
For the Respondent : Mr. Manoj Kumar Mishra, A.P.P.
--------
Order No.04/dated 28.04.2023
I.A.No. 1384 of 2023
The instant Interlocutory Application has been filed
for suspension of sentence dated 22.11.2022 passed by the
learned Sessions Judge, Godda in S.T.No. 17 of 2021, arising
out of Mahgama P.S. Case No. 190 of 2020, corresponding to
G.R. No. 283 of 2021 whereby and whereunder the appellant
has been sentenced to undergo R.I. for 10 years and also with
fine of Rs. 10,000/- for the offence having committed under
Section 304 of the Indian Penal Code. In default of payment
of fine, the appellant shall further to undergo S.I. for six
months.
The matter was heard on 17th March, 2023 and after
hearing the learned Counsel for the appellant the following
order was passed:
"The instant appeal has been admitted and the
Lower Court Records was called for, as would appear from
the order dated 13th January, 2023.
We have perused the Lower Court Records.
The prayer by the instant interlocutory application
has been made for suspension of sentence till disposal of
the present criminal appeal and to grant bail to the
appellant in connection with S.T. Case No. 17 of 2021
arising out of Mahgama P.S. Case No. 190 of 2020 during
pendency of the present criminal appeal which has been
preferred against the judgment of conviction dated 17 th
November, 2022 and order of sentence dated 22nd
November, 2022 passed by the learned Sessions Judge,
Godda, whereby the appellant has been convicted for the
offence under Section 304 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for ten years
along with fine of Rs. 10,000/- for the said offence.
Mr. S.P. Roy, learned counsel appearing for the
appellant has submitted by referring to the finding
recorded by the learned trial court in the impugned
judgment, more particularly the discussion of testimony of
P.W.-4, namely, Talamai Hansda as has been made in
paragraph 10 thereof, wherein she has stated that she
had seen the commission of crime of assault being given
by the appellant upon her deceased husband. It has been
deposed by her that her husband after sustaining the
injury on his head by lathi has fell down and immediately
thereafter she went at the place of occurrence along with
her sons, namely, Stephin Marandi and Surja Pahariya.
Thereafter her deceased husband was carried to the
hospital and he after having discharged from the hospital
has come to his residence but again he had been carried
to the hospital due to the deteriorating health condition. It
has been submitted that there is wide contradiction in the
testimony of P.W.-4 since at one place she has stated that
wine shop (the place of occurrence) is just adjacent to the
house, where her husband went and had seen the
occurrence while spreading clothes at her house and at
that time the appellant has assaulted her husband by
lathi on his head due to which her husband fell down but
she was also given contradictory statement that the
appellant went at his house and came with a lathi and
assaulted him and as such her testimony cannot be said
to be trustworthy.
It has further been submitted that the P.W.-4
deposed in his testimony about the multiple assault being
given upon her husband but the same is not being
corroborated from the medical testimony as would appear
from the testimony of P.W.-7 (Dr. Agnesh Kumar Sinha)
who has found only one ante mortem injury. The doctor
has also found that the stomach of the deceased was
having alcoholic smell and in that view of the matter it is
a case where the preponderance of probability is
attracting and, therefore, it is a fit case for suspension of
sentence.
This Court after taking into consideration, the
aforesaid submission is, hereby, calling upon the State to
file objection, if any, as to why the sentence passed in
connection with S.T. Case No. 17 of 2021 arising out of
Mahgama P.S. Case No. 190 of 2020 be not kept in
abeyance.
The objection, if any, be filed before the next date of
hearing.
Accordingly, list this mater on 28th April, 2023."
The State has filed objection in terms of the aforesaid
order.
The learned Counsel appearing for the appellant has
submitted by referring to the objection affidavit that no new
material has been averred therein, save and except the
testimony of P.W.4 has reiterated.
Submission has been made that testimony of P.W.4
speaks about the multiple assault given upon her husband but
the same has not been corroborated with the testimony of
P.W.7.
It has further been submitted that there is no
reference of any criminal antecedent.
Mr. Manoj Kumar Mishra, learned Addl. Public
Prosecutor has submitted by referring to the testimony of P.W.
4 who has deposed that the multiple assault has been given
upon the husband of the informant due to which he has
succumbed to injury.
This Court after having heard the learned Counsel for
the parties and after appreciating the evidence has found that
although the P.W.4 has deposed in his testimony about the
multiple assault being given upon her husband but we after
going through the testimony of P.W.7 that the testimony of
P.W.4 regarding the giving multiple assault has not been
corroborated, since, the Doctor has found only one ante mortem
injury. The objection affidavit also does not stipulate any
criminal antecedent or no any adverse impact if the appellant
will be released on bail after putting the sentence into abeyance.
Regard being had to the facts and circumstances of
the case, the appellant, above named is directed to be released
on bail, during the pendency of this Cr. Appeal, on furnishing
bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two
sureties of the like amount each to the satisfaction of the
Sessions Judge, Godda in connection with S.T. No.17 of 2021,
arising out of Mahgama P.S. Case No. 190 of 2020,
corresponding to G.R. No. 283 of 2021.
Accordingly, I.A. No. 1384 of 2023 stands disposed
of.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
P.K.S.
