Mukhi Shringari @ Mukhilal ... vs The State Of Jharkhand
2023 Latest Caselaw 1291 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Cr. Appeal (D.B.) No. 56 of 2023
Mukhi Shringari @ Mukhilal Shringari @ Mukhi Sringari .... .... Appellant
                             Versus
The State of Jharkhand                                   ....    .... Respondent
                             --------

CORAM :       HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE SUBHASH CHAND
                             -------
For the Appellant :         Mr. A.K.Kashyap, Sr. Advocate.
For the Respondent :        Mr. Ravi Prakash, Spl.P.P.
                            --------

Order No.05/dated 23.03.2023

I.A. No. 497 of 2023

Reference may be made to order dated 02nd March, 2023.

In pursuance thereto, objection by way of affidavit has been filed,

copy of which has been served upon learned counsel for the appellant.

Let the same be taken on record.

The instant Interlocutory Application has been filed under Section

389 (i) of the Code of Criminal Procedure for suspension of sentence dated

14.12.2022 passed in S.T. No. 108 of 2012 by the Additional Sessions Judge-II,

Deoghar whereby and whereunder the appellant has been convicted and

sentenced under Sections 302/34 of the Indian Penal Code to undergo

imprisonment for life and to pay a fine of Rs.5,000/- (Five thousand) and in default

of payment of fine to further undergo one year R.I. and under Section 448/34 of

the Indian Penal Code to pay a fine of Rs.1,000/- (one thousand) and in default of

payment of fine to further undergo 10 days S.I.

This case was heard on 2nd March, 2023 and on that occasion the

argument was advanced that the conviction which has been passed under Section

302 of I.P.C. cannot be said to be justified, reason being, that no privilege of pre-

meditation has come on record and as such at best it could be a case of the

occurrence has been took place in the hit of the moment and therefore there is no

ingredient of Section 302 of the Indian Penal Code but even then the appellant

has been convicted for the offence under Sections 302/34 and 448/34 of the Indian

Penal Code

This Court after having heard the learned Sr. Counsel appearing for

the appellant has called upon the State to file objection. The State has filed

objection in pursuance thereto by serving the copy of the same.

Mr. Ravi Prakash, learned Spl. Public Prosecutor appearing for the

State of Jharkhand has submitted by referring to the stand, inter alia, taken in the

counter-affidavit wherein the case has been made out to the effect that the

deceased was dragged from the house.

Apart from that, it has also been stated about the conduct of the

appellant by taking the report from the concerned Jail appended with the

certificate of the Superintendent of the Central Jail, Deoghar as also the report of

the Police Inspector- cum- office in charge, Nagar Police Station, Deoghar as

appended as Annexure-A to the counter-affidavit.

Mr. A.K.Kashyap, learned Sr. Counsel appearing for the appellant has

raised serious objection regarding the stand taken in the counter-affidavit by

inserting the case that the appellant along with the other have dragged the

deceased from the house.

The learned Sr. Counsel has fortified his argument by referring to

the testimony of P.W.1 as has been discussed in the impugned judgment wherein

it has been deposed by him that the appellant along with others has entered into

the house where the scuffle took and in course thereof the crime of was

committed.

Upon this Mr. Ravi Prakash, learned Spl. Public Prosecutor in all

fairness has submitted that due to inadvertence the aforesaid statement at

paragraph 6 wherein it has been stated that the appellant along with his two sons

entered into the house of the informant and dragged his son Anjani Kumar

Mathpati by caller and thereafter on the instruction of the appellant his son Chotu

and Shibu assaulted the deceased appears to be error on record.

Such submission has been made by learned Spl. Public Prosecutor

by going through the testimony of P.W.1 as has been discussed by the learned

Trial Court in the impugned judgment.

This Court, therefore, is of the view that what has been argued on

behalf of the appellant that the case is to be of not pre-mediation rather the

occurrence took place in the spur of moment, prima facie, we are of the view that

does not appear to be correct.

So far as the reference is also required to be made regarding the

impact if the sentence will be suspended upon the society and other condition as

stipulated by the Hon'ble Apex Court in the case of "Somesh Chaurasia vs.

State of M.P. & Anr, 2021 SCC online SC 480 in pursuance thereto, the State

was called upon to file objection, this Court is of the view on the basis of the

averment made in the counter-affidavit about the conduct of the appellant based

upon the report of the officer-in-charge, Nagar Thana, Deoghar dated 22.03.2023

and the report of the Superintendent, Central Jail, Deoghar.

Regard being had to the submissions made hereinabove, this Court

is of the view that it is a fit case for suspension of sentence of the appellant during

the pendency of the instant appeal.

Accordingly, the instant Interlocutory Application stands allowed.

Consequently, the appellant, namely, Mukhi Shringari @ Mukhilal

Shringari @ Mukhi Sringari 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 Additional Sessions Judge-II, Deoghar in

connection with S.T.No. 108 of 2012, arising out of Deoghar Town P.S. Case No.

164 of 2011.

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.)

(Subhash Chand, J.) P.K.S.