Jharkhand High Court
Prashant Ji @ Awadesh Singh @ ... vs The State Of Jharkhand on 19 July, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 303 of 2021
Prashant Ji @ Awadesh Singh @ Pankaj @ Awdhesh Singh, aged about 32
years, son of late Yadu Pandey @ Madu Singh, resident of Village Dandar
Kalan, PS Panki, PO Dandar Kalan, District Palamu.
.... 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
For the Appellant : Mr. A.K. Chaturvedi, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P
---------------
th
Order No. 15/ Dated: 19 July 2023
I.A. No. 2229 of 2023
The instant interlocutory application has been filed by the
appellant under section 389 (1) of the Code of Criminal Procedure
whereby and whereunder the appellant has sought for a direction for
suspension of sentence dated 11.10.2021 passed by the learned learned
Additional Sessions Judge-VI, Chatra in Session Trial Case No.198 of
2019 in connection with Pathalgadda P.S. Case No. 35 of 2018 by which
the appellant has been convicted for the offence under sections 149,
452/149, 302 of the Indian Penal Code and section 17 (1)(2) of C.L.A.
Act and sentenced to undergo rigorous imprisonment for life and fine of
Rs.50,000/- (Fifty Thousand) for the offence under section 302 of IPC,
three years and fine of Rs.1000/- (One Thousand) for the offence under
section 149 of IPC, five years rigorous imprisonment and fine of
Rs.1000/- (One Thousand) for the offence punishable under section 452
of IPC, three years rigorous imprisonment for the offence punishable
under section 17(1)(2) of C.L.A. Act and in default of payment of fine
further directed to undergo SI for six months.
2. The matter was heard by this Court on 23 rd March 2023 and
while arguing on behalf of the appellant, the learned counsel has referred
the testimony of PW1 and PW2 who happens to be son and father of the
deceased, have not identified the appellant in the dock and as such, the
ground was agitated that without identification since conviction is based,
therefore, it is a fit case where the sentence may be suspended.
3. This Court on consideration of the aforesaid fact and going
through the judgment passed by the learned trial court wherein the
testimony of PW1 and PW2 has been considered, has called upon the
State to file objection. The State has filed objection in terms thereof and
apart from the merit the reference of the twenty one (21) criminal
antecedents against the appellant have been made therein.
4. The learned counsel appearing for the appellant has
submitted that out of all the twenty one (21) cases the appellant has been
acquitted in one case. In most of the other cases, the appellant is on bail
and in rest of cases, the charge-sheet has not been submitted arraying the
name of the appellant in the said criminal proceeding.
The learned counsel appearing for the appellant, in view of
the aforesaid premise, has submitted, particularly by referring to the
testimony of PW1, PW2 and PW6 that when the appellant has not been
identified by the son (PW1), the father (PW2) and the widow (PW6) of
the deceased and, as such, it cannot be said that the prosecution has been
able to substantiate the charge beyond all shadow of doubt and in that
view of the matter, it is a fit case where the sentence is to be suspended.
5. While on the other hand, Mrs. Priya Shrestha, the learned
Special Public Prosecutor has submitted by putting reliance upon the
averment made in the objection affidavit as also the annexure appended
thereto regarding the cases which have been shown to be pending against
the appellant.
The learned counsel for the State, in view of the aforesaid
premise, has submitted that it is not a fit case where the sentence is to be
suspended due to the reason that after conviction the presumption of
innocence will be said to be not available and in that view of the matter
since the judgment of conviction is there wherein after taking into
consideration the testimony of the witness the appellant has been convicted,
therefore, it is incorrect on the part of the appellant to take the ground that
the prosecution has not been able to substantiate this argument beyond all
shadow of doubt.
6. We have heard the learned counsel for the parties, perused the
lower court record as also the finding recorded by the learned trial court
including the objection affidavit and other affidavits filed as available on
record. It appears from the perusal of the testimony of PW1, the son, PW2,
the father and PW6, the widow wherein they have not identified the
appellant. It further appears that the learned trial court, although, has
convicted the appellant by putting reliance upon the testimony of PW1,
PW2 and PW6 but so far as the part of the deposition wherein they have
deposed that they have not identified the appellant there is no consideration
of the same.
The serious opposition has been made on the ground of
pendency of the other criminal cases. But, while considering the aforesaid
opposition and by going through the document appended in support thereto
vide Annexure-A, this Court has found that in most of the cases, the
appellant has been bailed out and in one case the appellant has been
acquitted also.
7. This Court after taking into the aforesaid fact prima facie is of
the view that the argument which has been put forth that after the conviction
the presumption of innocence will not be there, the same is not in dispute,
but, the said principle is to be tested based upon the testimony of the
witnesses.
Further the law is well settled regarding the order to be passed
by the appellate Court in exercise of power conferred under section 389(1)
of the Code of Criminal Procedure wherein if prima facie case is made out
on the basis of the material available on record as also there are chances of
acquittal in the criminal appeal then the aforesaid power is to be exercised
for suspension of sentence, reference in this regard be made to the judgment
rendered in the case of "Omprakash Sahni v. Jai Shankar Chaudhary"
reported in (2023) 6 SCC 123 wherein at paragraph no.33 it has been
observed which reads as under:
"33. Bearing in mind the aforesaid principles of law,
the endeavour on the part of the court, therefore, should
be to see as to whether the case presented by the
prosecution and accepted by the trial court can be said
to be a case in which, ultimately the convict stands for
fair chances of acquittal. If the answer to the abovesaid
question is to be in the affirmative, as a necessary
corollary, we shall have to say that, if ultimately the
convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the
bars for a pretty long time till the conclusion of the
appeal, which usually takes very long for decision and
disposal. However, while undertaking the exercise to
ascertain whether the convict has fair chances of
acquittal, what is to be looked into is something
palpable. To put it in other words, something which is
very apparent or gross on the face of the record, on the
basis of which, the court can arrive at a prima facie
satisfaction that the conviction may not be sustainable.
The appellate court should not reappreciate the
evidence at the stage of Section 389 CrPC and try to
pick up a few lacunae or loopholes here or there in the
case of the prosecution. Such would not be a correct
approach."
8. This Court on consideration of the aforesaid fact and legal
premise is of the view that the sentence inflicted against the appellant is fit
to be kept in abeyance.
9. Accordingly, I.A. No. 2229 of 2023 is allowed.
10. In consequence thereof, the appellant is directed to be released
on bail, during the pendency of the Cr. Appeal, on furnishing bail bond of
Rs.10,000/- (Ten thousand) with two sureties of the like amount each to the
satisfaction of the learned Additional Sessions Judge-VI, Chatra in Session
Trial Case No.198 of 2019 in connection with Pathalgadda P.S. Case
No. 35 of 2018.
11. In view thereof, I.A. No. 2229 of 2023 stands disposed of.
12. It is made clear that whatever observation has been made
hereinabove will not prejudice the case of the appellant on merit since the
appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
RKM
