Karma Oraon vs The State Of Jharkhand
2023 Latest Caselaw 1267 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
      Criminal Appeal (D.B.) No.317 of 2023
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Karma Oraon                              ....   ...   Appellant
                               Versus
The State of Jharkhand                   ...    ...   Respondent
                               -------

CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. Durga Charan Mishra, Advocate For the Respondent : Ms. Anuradha Sahay, A.P.P.

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                          nd
Order No. 03/Dated 22          March, 2023

I.A. No.2397 of 2023

This interlocutory application has been preferred

under Section 5 of the Limitation Act for condoning the

delay of 211 days in preferring the instant criminal appeal.

Heard parties.

Having regard to the averments made in the

application and submissions made on behalf of the parties,

we are of the view that the appellant was prevented from

sufficient cause in filing the appeal within the period of

limitation. As such, the delay of 211 days in preferring the

appeal is hereby condoned.

I.A. No. 2397 of 2023 stands allowed.

Criminal Appeal (D.B.) No.317 of 2023 Admit.

Call for the Lower Court Records.

I.A. No.2398 of 2023

This interlocutory application has been filed under

section 389(1) of the Cr. P.C for suspension of sentence

passed on 02.06.2022 in connection with judgment of

conviction in Session Trial No.365 of 2018 by learned

Sessions Judge, Gumla, Deoghar, by which the appellant has

been convicted under Section 304 of the Indian Penal Code

and directed to undergo rigorous imprisonment for 10 years

and fine of Rs.5,000/- and in default of payment of fine,

further S.I. for two months.

Mr. Durga Charan Mishra, learned counsel for the

applicant/appellant has submitted that the prosecution has

failed to prove the case beyond all shadow of doubt, since

there is no cogent evidence to prove the guilt against the

applicant/appellant.

He further submits that the learned trial court has

failed to appreciate that on perusal of the deposition of P.W.-

3, the informant, it appears that she is not an eye witness to

the occurrence and her contention is contrary to the

statement made in the fardbeyan.

He further submits that the prosecution has not

brought on record any independent witness or any members

of the village to substantiate the case of the prosecution.

While on the other hand, Ms. Anuradha Sahay,

learned Additional Public Prosecutor, has submitted that it is

incorrect on the part of the applicant to take the ground that

there is no cogent evidence, rather, the informant, P.W.-3,

who is mother of the appellant and wife of the deceased, has

categorically stated that her husband was assaulted by

appellant and ultimately her husband succumbed to injury

and died.

She has further submitted that the medical evidence

also shows that lacerated would in the left cheek and

lacerated wound in the left side of chin and it is also

mentioned in the medical report that the cause of death was

shock and hemorrhage due to head injury which indicates co-

relation between the assault and death.

She, therefore, has submitted that it is not a case

where the sentence is fit to be kept in abeyance.

We have heard learned counsel for the parties and

perused the finding recorded by the learned trial court.

On appreciating the finding recorded by the learned

trial court, it appears from the impugned judgment that the

informant, P.W.-3, who is mother of the appellant and wife of

the deceased, has categorically stated that her husband was

assaulted by appellant and ultimately her husband

succumbed to injury, as would appear from the finding

recorded to that effect by taking into consideration the

testimony of P.W.3 by the learned trial court.

It further appears that the medical report also

corroborates the version of the informant.

The position of law is well settled that the Appellate

Court, at the stage of suspension of sentence and release on

bail till disposal of appeal, has to examine a case in patent

infirmity in the order of conviction that renders the conviction

prima facie erroneous. The evidence is not to be reassessed or

to reanalyze to suspend the execution of the sentence. The

detailed observation on merit of the case are called for, at this

stage, lest it prejudices the case of the petitioner but the

matter has been set in the light of the principles of law.

This Court, after taking into consideration the

evidence on record and the principle to keep the suspension

in abeyance in the case of conviction, during the pendency of

the appeal, is of the view that no prima facie case is made out

to keep the sentence in abeyance.

The instant interlocutory application is accordingly,

dismissed.

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.

Let a copy of this order be forwarded to the appellant

through Jail Superintendent.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Birendra/