Jharkhand High Court
Manoj Yadav vs The State Of Jharkhand on 28 November, 2023
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 152 of 2023
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Manoj Yadav .... .... Appellant
Versus
1. The State of Jharkhand
2. Pawan Kumar Yadav .... .... .... Respondents
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Coram: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Sabyasanchi, Advocate
For the State : Mr. Prabhu Dayal Agrawal, Addl.P.P
For the Informant : Mr. Nilesh Kumar, Advocate
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Order No. 10 Dated- 28.11.2023
I.A. No. 5741 of 2023
Heard Mr. Sabyasanchi, learned counsel for the appellant,
Mr. Prabhu Dayal Agrawal, learned Addl.P.P, for the State as well as
Mr. Nilesh Kumar, learned counsel appearing for the
informant/respondent no. 2.
The present Interlocutory Application has been filed for
suspension of sentence during pendency of this criminal appeal.
The present criminal appeal is directed against the judgment of
conviction dated 15.02.2023 and the order of sentence dated 21.02.2023,
passed by the learned Additional Sessions Judge-1, Sahibganj in
Sessions Trial No. 90 of 2022 arising out of Borio (J) P. S. Case No. 365 of
2021, corresponding to G. R. Case No. 108 of 2022, whereby and
whereunder, the appellant has been convicted and sentenced to
undergo two years RI and Rs. 1,000/- for the offence under Section 148
IPC and in default of payment of fine one month RI. Further sentence to
undergo RI for eight years and fine of Rs. 25,000/- for the offence under
Sections 307/149 IPC and in default of payment of fine further RI of one
month and further sentence to undergo RI for five years for the offence
under Section 27 of the Arms Act and fine of Rs. 5,000/- and in default
of payment of fine further sentence to undergo RI for six months.
Learned counsel for the appellant has first taken to the FIR and
pointed out that the appellant has not at all named in the FIR and it was
only during investigation, the name of the present appellant has been
transpired. Moreover, the learned counsel for the appellant has said
that the appellant had surrendered on 24.02.2022 in court itself and
thereafter he was on bail from 01.10.2022 and he has not misused the
privilege of bail. Thereafter, he has been in custody from the date of
conviction and sentence i.e. on 15.02.2023. The learned counsel for the
appellant has stated that during trial 14 prosecution witnesses have
been examined and he has then tried to demolish the evidence of some
of the prosecution witnesses and has submitted that P.W. - 1 to P.W. - 5
has stated that Sonu Yadav and Bhikhari Yadav had fired upon the
informant. Learned Counsel thus has submitted that it is thus clear from
the evidence of these prosecution witnesses that Manoj Yadav was not
the person who had fired upon the informant, therefore, the allegation
against the appellant is not sustained. He has also emphasized from the
evidence of P.W. - 5 and has stated that three shots were fired upon the
informant. Learned counsel for the appellant has stated that P.W. - 5
has also stated that apart from him no one else was there and therefore,
thus tried to say thereby the evidences of all other prosecution
witnesses would be of known eye-witnesses or hearsay and their
evidence cannot be relied upon. He has further submitted that P.W. - 7
who is a hearsay witness deposed that he had heard that Bhikhari
Yadav had fired the shot.
Learned counsel for the appellant has then pointed to the
evidence of P.W. 6 who is the informant and also the injured person and
has submitted that P.W. - 6 has deposed that Bhikhari Yadav had
exhorted the other accused persons and deposed that Sonu Yadav had
fired at his abdomen and the second shot was fired by Bhikhari Yadav
and the third shot was fired by Sunil Yadav at his leg. Learned counsel
for the appellant has then referred to the evidence of P.W. - 8 who is the
Doctor and as per the evidence of the Doctor, there is only one entry
and one exit wound at the body of the injured persons and he has not
found in his injury report injuries caused by two bullets. Learned
counsel thus submits that the meaning thereby only one shot was fired.
Further learned counsel for the appellant has submitted that in cross-
examination of the doctor, he has stated that he has not found injuries
of two bullets. Learned counsel thus submits that there was no injury
even on the heel.
Counsel has then referred to the evidence of P.W. - 9 who is one
of the I.O. of this case and has submitted that P.W. - 9 had deposed that
he had gathered two empty cartridges from the place of occurrence.
Thus, learned counsel for the appellant has submitted that it is at
variance with three shots fired. Thereafter, he has pointed out from the
evidence of P.W. - 12 who is another I.O. and from his statement
learned counsel for the appellant has submitted that the IO has deposed
that he has recorded the statement of P.W. - 10 during investigation and
then the learned counsel for the appellant has contrasted the deposition
of P.W. - 10 and has submitted that P.W. - 10 has changed his version
from what he has said during investigation and what has said in the
court. Therefore, learned counsel for the appellant has submitted that
P.W. - 10 is not reliable and trustworthy. It has been submitted by the
learned counsel for the appellant regarding antecedent of the present
appellant that the appellant has already been acquitted by the learned
trial court and a certified copy of the same has been provided by him
which is taken on board.
Learned counsel for the respondent no. 2/informant has opposed
the prayer for suspension of sentence and has argued that P.W. - 1 in
his evidence has named many of the accused persons including the
present appellant and it has been also stated by P.W. - 1 that the
accused persons had fired. Similarly, he has said that even P.W. - 2 has
also named the other accused persons including the present appellant
and has also pointed out that the accused persons had fired. Learned
counsel for the respondent no. 2, therefore, submits that in such
circumstances it cannot be said that Manoj Yadav had not fired. In any
way, the allegation is collectively made against all accused persons
including this appellant. He has then pointed out to the evidence of
P.W. - 4 who though hearsay witness has also taken the name of Manoj
Yadav. He has then referred to the evidence of P.W. 10 and pointed out
that he has also taken the name of Manoj Yadav and that the gun shot
was fired by all. Learned counsel for the informant/respondent no. 2
has further stated that even in the evidence of P.W. - 5, it indicated the
name of Manoj Yadav and that the shot was fired by all. Counsel for the
respondent no. 2 therefore, submitted that his presence is not at all
disputed and the allegations are serious in nature and the gun shot was
fired, therefore, he cannot be allowed the privilege of suspension of
sentence. He has then referred to the evidence of P.W. - 6 who is the
informant and the injured victim and has stated that even this witness
who was the victim himself has stated that Manoj Yadav was present in
his evidence. He has also pointed out that the reasons for the assault is
revealed in Paragraph - 21 of the evidence of the victim himself where
there is reference to a prior Rangdhari or extortion demand made by the
accused persons three months before and, therefore, he says that this
reflects the criminal nature and character of the accused
persons/appellant. Learned counsel has then pointed to the evidence of
P.W. - 14 who is another I.O. and has pointed out from Paragraph - 2 of
his evidence that he has deposed about the criminal antecedent of
Manoj Yadav and he was not clearly acquitted in a case. Therefore, the
prayer for suspension of sentence of the appellant should not be
allowed.
Having gone through the records of the case, considering the
arguments advanced by the learned counsel for the parties and also in
the facts and circumstances of the case, I am not inclined to consider the
prayer for suspension of sentence of the appellant which stands
rejected.
I.A. No. 5741 of 2023 stands dismissed.
(Ratnaker Bhengra, J.)
Umesh/-
