Jharkhand High Court
Shashikant Kumar @ Kudus Sao vs The State Of Jharkhand on 3 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB). No.393 of 2023
With
I.A. No.6179 of 2023
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Shashikant Kumar @ Kudus Sao .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Manoj Kr. Choubey, Advocate
For the State : Mr. Satish Prasad, A.P.P.
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05/Dated: 03.08.2023
I.A. No.6179 of 2023
The instant interlocutory application has been filed under
Section 389(1) Cr.P.C. for suspension of sentence dated 28.01.2023
passed by the learned Additional Sessions Judge-V, Chatra in
Sessions Trial No.97 of 2021, arising out Kunda P.S. Case No.31 of
2021.
2. The matter was heard by this Court on 19.07.2023 and
argument has been advanced on behalf of the appellant that the
testimony of P.W.10 and P.W.12 have not been relied, since, they
have not identified the appellant and the conviction is solely based
upon the testimony of the Investigating Officer and further, there is
no eye witness.
3. This Court has called upon the State to affidavit in objection, in
terms of the order passed by the Hon'ble Apex Court in the case of
Somesh Chourasia Vrs. State of M.P. & Anr., reported in [(2021)
SCC OnLine SC 480], but no affidavit in objection has been filed.
4. However, Mr. Satish Prasad, learned A.P.P. appearing for the
State has submitted that the affidavit is ready but could not be filed.
5. This Court requires to refer herein that an order was passed on
19.07.2023, wherein, by taking into consideration the habit of the
State in not filing the objection affidavit in advance as per the High
Court Rules/Regulations, which requires that any affidavit is to be
filed and a copy of the same is to be served prior to 48 hours, but,
the State has made habit of filing the affidavit in the Court by serving
the copy of the said affidavit upon the learned counsel for the
appellant.
6. This Court, taking note of the said conduct, has passed an
order that henceforth, no affidavit will be entertained if not filed in
terms of the High Court Rules.
7. Learned A.P.P., however, has sought for leave of this Court to
accept the said affidavit in the Court.
8. But we, on consideration of the order passed by this Court on
19.07.2023, have refused to accept the same, since, it is in defiance
to the High Court Rules which requires that the copy of the said
affidavit will be served upon the learned counsel for the other side
prior to 48 hours in advance.
9. This Court is further of the view that even the adjournment is
not fit to be allowed in view of the order passed by the Hon'ble Apex
Court in the case of Somesh Chourasia Vrs. State of M.P. & Anr.,
(supra), wherein, it has been observed that only one opportunity is
to be given to file affidavit in objection.
10. However, learned A.P.P. has argued out the case on instruction
which he has received from the Investigating Officer and has
submitted that the appellant is having three criminal antecedents and
the Investigating Officer has supported the prosecution version and
hence, it is not a case where the sentence inflicted upon the
appellant in consequence of conviction, is to be kept in abeyance.
11. Learned A.P.P. has submitted basing upon the report of the
concerned police officer that if the appellant will be directed to be
released on bail, there will be adverse social impact, since, the
moment, he will come out from the custody, there is every likelihood
of increase in the commission of crime.
12. In response, Mr. Manoj Kumar Choubey, learned counsel
appearing for the appellant has submitted that there is no cogent
evidence to prove the complicity said to be proved beyond all
shadow of doubts, since, P.W.10 and P.W.12 who are said to be eye
witnesses have refused to identify the appellant.
13. It has been submitted that when P.W.10 and P.W.12, have
failed to identify, then where is the question of conviction to be based
upon the testimony of the Investigating Officer.
14. So far as the antecedents are concerned, it has been
contended that in one of the case, the appellant is on bail and in
other, he has been acquitted. However, he is having no instruction
with respect to other case which has been registered under Section
379.
15. It has been contended that even accepting that the cases are
pending against the appellant, but that cannot be a ground to deny
the privilege of suspension of sentence.
16. We have heard the learned counsel for the parties, perused the
documents available on record as also considered the finding
recorded by the learned trial Court in the impugned order.
17. It is evident from the perusal of testimony of P.W.10 and P.W.12
who in explicit words have deposed that they have not identified the
appellant. The very identification of the appellant is in doubt.
18. But the learned trial Court, as would appear from the impugned
judgment, has discarded the said version of the prosecution
witnesses and has come to the conclusion that the versions of
P.W.10 and P.W.12 are being corroborated by the testimony of
Investigating Officer.
19. This Court, therefore, prima-facie is of the view that the
identification part, as have been deposed by P.W.10 and P.W.12 has
not correctly been appreciated by the learned trial Court.
20. So far as the objection raised on behalf of the State that if the
appellant will be released, there will be adverse social impact but it is
the settled position of law that merely on the basis of apprehension,
the right to liberty of a person cannot be denied, since, it is the
fundamental right as provided under Article 21 of the Constitution of
India and if the question of right to liberty is there, the right to liberty
is only to be curtailed on the basis of any cogent evidence and not
on the basis of apprehension.
21. Learned counsel for the appellant has submitted that in one of
the case, the appellant is on bail and in other, he has been acquitted.
However, he is having no instruction with respect to another case
which has been registered under Section 379.
22. This Court, on consideration of the aforesaid fact, is of the view
that the apprehension which has been shown by the State of adverse
social impact is having no basis.
23. This Court further, considering the testimony of P.W.10 and
P.W.12 who have not identified the appellant, is of the view that the
appellant is able to make out a prima-facie case for suspension of
sentence.
24. Accordingly, I.A. No.6179 of 2023 stands allowed.
25. In consequence thereof, the appellant, above named, is
directed to be released on bail on furnishing bail bond of Rs.25,000/-
(Rupees Twenty Five Thousand) with two sureties of the like
amount each to the satisfaction of the learned Additional Sessions
Judge,-V, Chatra, in connection with Kunda P.S. Case No.31 of
2021, corresponding to Sessions Trial No.97/2021.
26. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for its
consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-
