Mukesh Rai @ Mukesh Ray vs State Of Jharkhand
2023 Latest Caselaw 2037 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         Cr. Appeal (DB) No. 49 of 2023
                                        With
                                I.A. No. 396 of 2023
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Mukesh Rai @ Mukesh Ray ....... Appellant Versus 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. Tarun Kumar No.1, Advocate For the Respondent : Mrs. Vandana Bharti, A.P.P.

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th 04/Dated: 10 May, 2023

Cr. Appeal (DB) No. 49 of 2023:

Heard the learned counsel for the parties.

Admit.

Mrs. Vandana Bharti, learned APP waives notice on behalf of the

respondent-State.

Call for the LCR from the court concerned.

I.A. No. 396 of 2023:

With the consent of the parties, the instant interlocutory application has been heard.

The instant application has been filed under Section 389(1) of Cr.P.C. seeking therein suspension of sentence in connection with Sessions Trial No. 263 of 2021, by which the appellant has been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304 of IPC alongwith fine of Rs.10,000/- and in default of payment of fine, has been further directed to undergo simple imprisonment for six months.

Learned counsel for the appellant has submitted that it is a case where there is no conclusive proof of the prosecution version since admittedly the occurrence of assault took place on 05.06.2020 which resulted into sustaining injury by the deceased who died subsequently, i.e., after the lapse of the period of one month.

It has been submitted that it has come in the testimony of P.W.-2, in his cross-examination, that the deceased was referred to Ranchi where the doctor has treated the injuries over his stomach and head and got in sense in Ranchi Hospital but very surprisingly, no FIR/report about the said assault, immediately after sustaining the injury, was instituted rather the FIR has been instituted after the death of the deceased, i.e., on 18.07.2020.

Submission has also been made by referring to the testimony of the doctor, P.W.-6, wherein the doctor has also not found any external injury while as per the prosecution version, the allegation of assault is there with tangi and lathi and hence, it is a fit case where the sentence may be suspended.

This Court, after having heard the learned counsel for the appellant/applicant and taking into consideration the mandate of first proviso to Section 389 of the Cr.P.C. coupled with the judgment rendered by the Hon'ble Apex Court in Somesh Chaurasia vs. State of M.P. and Anr., 2021 SCC OnLine SC 480, is calling upon the State to file objection, if any, to explain as to why the sentence be not kept in abeyance.

Let such objection, if any, be filed on or before the next of date of hearing.

Let this matter be listed on 15.06.2023.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saurabh/-