Jharkhand High Court
Shivam Gosh @ Teru vs The State Of Jharkhand on 8 November, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 44 of 2023
With
I.A. No. 6600 of 2023
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1. Shivam Gosh @ Teru
2. Rahul Mukhi @ Rahul
....... Appellants
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
Mr. Vikas Kumar, Advocate
Mr. Nishant Kr. Roy, Advocate
For the Respondent : Mr. Bhola Nath Ojha, A.P.P.
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th
07/Dated: 08 November, 2023
I.A. No. 6600 of 2023:
1. The instant interlocutory application has been filed on behalf of the
appellant no.2, namely, Rahul Mukhi @ Rahul under Section 389(1) of
the Cr.P.C. for keeping the sentence in abeyance in connection with the
judgment of conviction dated 21.12.2022 and order of sentence dated
23.12.2022 passed by the learned Sessions Judge, East Singhbhum,
Jamshedpur in connection with Sessions Trial No. 216 of 2021 arising
out of Bistupur P.S. Case No. 05 of 2021 corresponding to G.R. Case
No. 803 of 2021, whereby and whereunder, the appellant has been
convicted and sentenced to undergo rigorous imprisonment for life along
with fine of Rs.10,000/- for the offence punishable under Section 302/34
of IPC and in default of payment of fine, the same shall be recovered
from the estate of the appellant.
2. It has been contended on behalf of the appellant that it is a case where
there is no eye witness.
3. Further submission has been made that even the conviction is based upon
the extra-judicial confession but not leading to any recovery.
4. It has further been submitted by referring to the testimony of P.W.-6,
whose statement is the basis of conviction, that he himself has stated that
he has not seen the commission of crime.
5. Learned senior counsel for the appellant, based upon the aforesaid
premise, has submitted that since there is no eye witness as also the
confession is not leading to any recovery, hence, sentence is fit to be
suspended.
6. While, on the other hand, Mr. Bhola Nath Ojha, learned Additional
Public Prosecutor appearing for the respondent-State of Jharkhand has
filed affidavit in objection in pursuance of the order passed by this Court
dated 05.10.2023 in view of the judgment passed by the Hon'ble Apex
Court in Somesh Chaurasia vs. State of M.P. and Anr. [2021 SCC
OnLine SC 480] and referring the statement made in the affidavit,
submission has been made that learned court has based the conviction on
the testimony of P.W.-6.
7. Learned Additional Public Prosecutor appearing for the respondent-State
of Jharkhand is fair enough to submit that the confession of the appellant
has been recorded but the same is not leading to any recovery and merely
on the basis of the fact that the appellant used to go to the residence of
the deceased for taking liquor, the same has been taken as primary
consideration by the learned court for convicting the appellant.
8. Learned Additional Public Prosecutor, on the basis of the aforesaid
submission, has submitted that the learned court since has passed the
judgment based upon testimony of witnesses, hence, it is not a case
where the sentence is to be suspended.
9. We have heard the learned counsel for the parties and gone across the
finding recorded by the learned trial court in the impugned judgment as
also the testimony of the witnesses along with the document available in
the Lower Court Record which has been called for by this Court vide
order dated 23.01.2023 and the averment made in the affidavit in
objection filed in terms of the order dated 05.10.2023.
10. This Court has considered the material available on record, more
particularly the testimony of P.W.-6 which is the basis of conviction,
who has deposed in course of trial that he has not seen the commission
of crime.
11. This Court has further found that the basis of conviction by the learned
court is the extra-judicial confession as has been disclosed before the
P.W.-6.
12. We have further found that on the basis of the said extra-judicial
confession made before the P.W.-6, it is the admitted case of the
prosecution that the same was not leading to any recovery or any
incriminating material in order to connect the culpability of the appellant
with the crime.
13. This Court, considering the discussion made hereinabove, prima facie is
of the view that the appellant has been able to make out a case for
suspension of sentence.
14. Accordingly, I.A. No. 6600 of 2023 stands allowed.
15. In consequence thereof, the appellant no.2, namely Rahul Mukhi @
Rahul, 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 learned Sessions Judge, East
Singhbhum, Jamshedpur in connection with Sessions Trial No. 216 of
2021 arising out of Bistupur P.S. Case No. 05 of 2021 corresponding to
G.R. Case No. 803 of 2021.
16. It is made clear that any observation made hereinabove will not prejudice
the case on merit, since, the criminal appeal is lying pending before this
Court for its consideration.
17. In view thereof, I.A. No. 6600 of 2023 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
