Shashikant Kumar @ Kudus Sao vs The State Of Jharkhand
2023 Latest Caselaw 2371 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 393 of 2023
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Shashikant Kumar @ Kudus Sao ... 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. Manoj Kumar Choubey, Advocate For the Respondent : Mr. Satish Prasad, A. P.P

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th Order No. 04 : Dated 19 July, 2023

I.A. No. 6179 of 2023

The instant interlocutory application has been filed

under Section 389(1) of the Code of Criminal Procedure on

behalf of appellant, named above, for suspension of sentence

during the pendency of the instant appeal after suspending

the impugned order of sentence dated 28.01.2023 passed by

the learned Additional Sessions Judge,-V, Chatra in Sessions

Trial No. 97 of 2021.

2. Mr. Manoj Kumar Choubey, learned counsel for

the appellant has submitted that impugned judgment suffers

from material infirmity since no consideration of the

testimony of injured witness i.e., testimony of P.W. 10 has

been made and further the testimony of P.W. 12 has also not

been properly appreciated as P.W. 10 and P.W. 12 said to

have accompanied the deceased on the date and time of

occurrence. It has been submitted that the P.W. 10 has

deposed in his testimony that he has not identified the

appellant. The P.W. 12 has also denied to have identified the

appellant.

Learned counsel for the appellant has submitted

that the learned trial Court giving go by to the testimony of

P.W. 10 and 12 relied solely upon the testimony of

Investigating Officer has convicted the appellant, therefore,

there is prima facie material for suspension of sentence.

3. This Court, on the basis of aforesaid submission

directs the State to file objection, if any, in view of the ratio laid

down by Hon'ble Apex Court in Somesh Chaurasia v. State of

M.P. and Another [2021 SCC OnLine SC 480] wherein it has

been laid down that before considering the application seeking

suspension of sentence, as per proviso to Section 389(1) of the

Code of Criminal Procedure, an opportunity is to be given to the

State to file affidavit.

4. In view thereof, let such objection be filed before the

next date of hearing.

5. List this case on 3rd August, 2023.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Alankar/