Jharkhand High Court
Jitendra Pandit @ Jitendra Kumar ... vs State Of Jharkhand on 30 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 53 of 2023
With
I.A. No. 5626 of 2023
---------
1. Jitendra Pandit @ Jitendra Kumar Pandit;
2. Rajendra Pandit @ Rajkumar Pandit @ Raj Kumar;
3. Awadhesh Pandit @ Awdhesh Pandit
....... Appellants
Versus
State of Jharkhand ....... Respondent
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
----------
For the Appellant : Mr. B.M. Tripathi, Sr. Advocate
Mr. Naveen Kr. Jaiswal, Advocate
For the Respondent : Mr. Vishwanath Roy, A.P.P.
-----------
th
05/Dated: 30 August, 2023
I.A. No. 5626 of 2023:
1. The instant interlocutory application has been filed under Section 389(1)
of the Cr.P.C on behalf of appellant/applicant no.2, namely, Rajendra
Pandit @ Rajkumar Pandit @ Raj Kumar, for keeping the sentence in
abeyance in connection with the judgment of conviction dated
16.12.2022 and order of sentence dated 23.12.2022 passed by the learned
Principal Sessions Judge, Giridih in Sessions Trial No. 115 of 2021
arising out of Deori P.S. Case No. 274 of 2020 corresponding to G.R.
No. 20 of 2021, whereby and whereunder, the appellant convicted under
Sections 302/34, 307/34, 323/34, 324/34, 341/34, 337/34, 338/34 and
504/34 of IPC and sentenced to undergo imprisonment for life along
with fine of Rs.10,000/- for the offence punishable under section 302/34
of IPC and in case of default of fine, has further been directed to undergo
rigorous imprisonment for six months; as also sentenced to undergo
rigorous imprisonment for seven years for offence punishable under
section 307/34 of IPC; further sentenced to undergo rigorous
imprisonment for one year for offence punishable under section 323/34
of IPC; further sentenced to undergo rigorous imprisonment for three
years for offence punishable under section 324/34 of IPC; further
sentenced to undergo simple imprisonment for one month for offence
punishable under section 341/34 of IPC; further sentenced to undergo
simple imprisonment for six months for offence punishable under section
337/34 of IPC; further sentenced to undergo rigorous imprisonment for
two years for offence punishable under section 338/34 of IPC; as also
sentenced to undergo rigorous imprisonment for two years for offence
punishable under section 504/34 of IPC.
2. It has been contended on behalf of the appellant no.2, namely, Rajendra
Pandit @ Rajkumar Pandit @ Raj Kumar, that there is no specific overt
act against the said appellant and none of the prosecution witness has
levelled any specific allegation upon the applicant, save and except, that
he was part of the group who have assaulted the deceased.
3. It has been submitted that specific allegation is against Vinay Pandit,
who has assaulted the deceased in the temple by pelting a big stone. It
has further been submitted that specific allegation is against another
accused person, namely, Jitendra Pandit who has assaulted with danda in
the eyes of the deceased. Further, allegation has been attributed against
Awadhesh pandit who has assaulted the deceased on his forehead by
means of danda.
4. Mr. B.M. Tripathi, learned senior counsel appearing for the appellant
no.2/applicant has submitted that specific allegation is against Vinay
Pandit, Jitendra Pandit and Awadhesh Pandit but there is no overt act as
has been alleged against Rajendra Pandit, the applicant herein, save and
except, that he was present at the place of occurrence.
5. It has further been submitted that the appellant/applicant is physically
challenged person and since there is no specific overt act, therefore, it is
a fit case where the sentence may be suspended.
6. While, on the other hand, Mr. Vishwanath Roy, learned Additional
Public Prosecutor appearing for the respondent-State has submitted that
the prosecution as established the charge beyond all reasonable doubt
against all the appellants.
7. It has been submitted that it is incorrect on behalf of the applicant to take
the ground that there is no specific allegation against the applicant rather
he all along was found to be present at the place of occurrence as has
been disclosed by P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5.
8. Further submission has been made that since the conviction is based
upon the testimony of the eye witnesses who have found the applicant
present at the place of occurrence along with the Vinay Pandit, Jitendra
Pandit and Awadhesh Pandit, therefore it is not a fit case where the
sentence is to be suspended.
9. We have heard the learned counsel for the parties, gone across the
finding recorded by the learned trial court in the impugned judgment as
also the document available in the lower court record and the testimony
of the prosecution witnesses.
10. We have found while appreciating the argument advanced on behalf of
the parties by taking into consideration the testimony of P.W.-1, P.W.-2,
P.W.-3, P.W.-4 and P.W.-5 who have been considered to be eye
witnesses by the learned trial court and from perusal of their testimonies
as available in the LCR, it is evident that specific allegation has been
levelled against Vinay Pandit, who has assaulted the deceased in the
temple by pelting a big stone due to which the deceased sustained
bleeding injury. It has further come in the testimony of the witnesses
against Jitendra Pandit that he assaulted with danda in the eyes of the
deceased and against Awadhesh pandit, it has come that he assaulted the
deceased on his forehead by means of danda due to which the deceased
sustained bleeding injury.
11. It has further come against the accused persons that they after
surrounding the deceased, assaulted him and occurrence of assault was
seen by P.W.-1. P.W.-2 has also deposed by referring specific
attributality of assault upon Vinay Pandit, Awadhesh Pandit and Jitendra
Pandit. P.W.-3 has also supported the aforesaid version.
12. It has come in the testimony of P.W.-3 that the accused persons, Vinay
Pandit, Rajendra Pandit, Awadhesh Pandit and Jitendra Pandit as well as
Dulari Devi, Pramila Devi, Mina Devi and Lalita Kumari were armed
with lathi, danda and cricket bat and assaulted her father-in-law, the
deceased.
13. The specific overt act has been levelled against Vinay Pandit, Awadhesh
Pandit and Jitendra Pandit. It is evident from the testimony of P.W.-1,
daughter-in-law of the deceased, that Vinay Pandit has assaulted the
deceased in the temple by pelting a big stone due to which the deceased
sustained bleeding injury while Jitendra Pandit assaulted with danda in
the eyes of the deceased and Awadhesh Pandit assaulted the deceased on
his forehead by danda due to which there was big hole and deceased
sustained bleeding injury. Dulari Devi, Pramila Devi, Mina Devi and
Lalita Kumari had assaulted through stone and bricks.
P.W.-1 has not deposed any overt act upon the applicant, save and
except, his presence.
14. It has also come in the deposition that the applicant, Rajendra Pandit, is
handicapped to the extent of 45%.
15. This Court, has found from the fact that there is specific allegation, as
per the testimony of P.W.-1 duly been corroborated by P.W.-2, P.W.-3
and P.W.-4, against Vinay Pandit, Awadhesh Pandit and Jitendra Pandit,
Dulari Devi, Pramila Devi, Mina Devi and Lalita Kumari.
Against the applicant, namely, Rajendra Pandit, his presence at the
place of occurrence has been shown by the witnesses.
16. This Court, therefore, is of the prima facie view that there is general and
omnibus allegation against the applicant about his presence at the place
of occurrence and of assault without attributing any specific attributality,
as such, the sentence in connection with Sessions Trial No. 115 of 2021
arising out of Deori P.S. Case No. 274 of 2020 corresponding to G.R.
No. 20 of 2021, deserves to be suspended also keeping the fact into
consideration that the applicant is disabled to the extent of 45% and to
that effect, medical evidence has also been brought on record by the
applicant showing the disability to the extent of 45% in the lower limb.
17. Regard being had to the facts and circumstances, the instant interlocutory
application stands allowed.
18. Accordingly, the applicant, namely, Rajendra Pandit @ Rajkumar Pandit
@ Raj Kumar, is directed to be released on bail during pendency of
appeal on furnishing bail bond of Rs. 25,000/- (Twenty-Five Thousand
only) each with two sureties of the like amount, to the satisfaction of the
learned Principal Sessions Judge, Giridih in Sessions Trial No. 115 of
2021 arising out of Deori P.S. Case No. 274 of 2020 corresponding to
G.R. No. 20 of 2021.
19. 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.
20. In view thereof, I.A. No. 5626 of 2023 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
