Jharkhand High Court
Luv Kush Sharma 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 (SJ) No. 243 of 2023
1. Luv Kush Sharma
2. Bipin Sharma ... Appellants
-Versus-
The State of Jharkhand ... ... Respondent
CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants :- Mr. Sidhartha Roy, Advocate
For the State :- Mr. Fahad Allam, APP
...
09/28.11.2023: IA No. 7833 of 2023
Heard the learned counsel for the appellants as well as the learned
counsel for the State on the interlocutory application filed by the appellants for
suspension of sentence during the pendency of this criminal appeal.
This criminal appeal was directed against the judgment of conviction
dated 25.03.2023 and the order of sentence dated 28.03.2023, passed by the
learned Additional Judicial Commissioner VII, Ranchi in ST No. 185 of 2016,
whereby and whereunder, the appellants have been convicted under sections
25(1-A)/35 and 26(2)/35 of the Arms Act and sentenced to undergo RI for 07
years and fine of Rs.5,000/-, for the offence under sections 25(1-A)/35 of the
Arms Act and in default of payment of fine, they are sentenced to undergo SI
for 01 year. Further, they have been sentenced to undergo RI for 07 years for
the offence under sections 26(2)/35 of the Arms Act and fine of Rs.5000/- and
in default of payment of fine, they are sentenced to undergo SI for 01 year.
The learned counsel for the appellants has submitted that the appellant
no.1 has no role in the entire case and he has only been convicted on the basis
of disclosure statement of the appellant no.2 that he was present with him on
the motorcycle and fled away from the spot. The learned counsel has further
submitted that it is never the case of the prosecution that the appellant no.1 was
also carrying firearms or anything incriminating which was recovered from his
possession. The learned counsel has further submitted that no case under any of
the provisions of the Arms Act is made out against the appellant no.1 as he was
neither present on the spot nor he was apprehended with illegal firearms nor in
the confessional statement/ disclosure statement of the appellant no.2 it has
come into light that the appellant no.1 fled from the spot with firearms in his
conscious possession. So far the appellant no.2 is concerned, his case has also
not been proved beyond reasonable doubts by the prosecution. None of the
witnesses examined by the prosecution has supported its case so far recovery of
loaded firearms from the possession of the appellant no.2 is concerned. The
learned counsel has further submitted that the PW-1, namely, Ajit Kumar Singh
who happens to be one of the members of the raiding party has not proved the
fact that the firearms recovered from the possession of the appellant no.2 was
sealed at the place of occurrence which demolishes the prosecution case so far
valid seizure of the firearms is concerned. Further regarding the firearms, the
learned counsel has pointed out from the evidence of PW-1 (para-8) and the
evidence of PW-7 (para-14,17 & 24) and has raised the issues regarding seal,
identification marks and whether firearms was found and whether it was kept at
the malkhana or not. The learned counsel has further pointed out from the
evidence of PW-5, who is the seizure witness, who has stated in para-6 that
Luv Kush Sharma is the informant in Bariatu PS Case No. 232 of 2023 in
which he is an accused and, therefore, the evidence of PW-5 as seizure witness
is tainted. The learned counsel has further submitted that as per the final
affidavit filed by the State till 08.11.2023, the period of custody of the
appellant no.1 is 2 years, 7 months, and 11 days and the appellant no.2 is 01
year, 3 months, and 10 days and taken along the aforesaid reasons, appellants
may be granted privilege of suspension of sentence, during pendency of this
criminal appeal. The learned counsel has referred to and relied upon the
judgments of the Hon'ble Supreme Court in (i) "Jasbir Singh v. State of
Punjab" AIR 1998 SC 1660 and (ii) Md. Sajid @ Lambu @ Sajid Lamboo
2019(4) East Cr C 159 (Pat) and the order of this Court passed in Cr. Appeal
(SJ) No. 263 of 2023 on the point of seizure to support his case.
Learned counsel for the State has opposed this interlocutory
application for suspension of sentence, during the pendency of this criminal
appeal and has submitted that offences are under serious sections of the Arms
Act and that case of both the appellants are not same and similar. The learned
counsel has further submitted that the appellants have spent in custody much
below, even not half of the sentence. There is no categorical evidence or denial
that seizure was not made. No concerned witnesses have denied the same. The
learned counsel has referred to the evidence of PW-3 and has pointed out that
this witness has proved the seizure in his writing and signature prepared in
presence of two independent witnesses, namely, Ravi Kumar and Roshan
Kujur. Moreover, the learned counsel has submitted that PW-4, the Sargent
Major deposed that he received the sealed articles i.e. one 9 mm country made
pistol and two live cartridges. The pistol and cartridges were effective. The
learned counsel has further submitted that the seizure list bears the signature of
Bipin Sharma and the seized country made pistol and live cartridge were
produced before the Court. The informant who has been examined as PW-3 has
deposed that it was sealed at the place of occurrence and the Sargent Major
who has been examined as PW-4 has corroborated the fact that the arms and
ammunition were received in sealed condition.
Having gone through the records of the case, considering the
arguments advanced by the learned counsel for the parties and the judgments
cited and also considering the period of custody already spent by the appellant
no.1 and in the facts and circumstances of the case, I am inclined to suspend
the sentence of the appellant no.1, named above, during pendency of this
criminal appeal, and accordingly, present appellant no.1, named above, is
ordered to be released on bail, during pendency of this criminal appeal, on
executing bail bonds of Rs. 25,000/- (Rupees Twenty Five Thousand only)
with two sureties of the like amount each to the satisfaction of the learned
Additional Judicial Commissioner VII, Ranchi in ST No. 185 of 2016 subject
to the conditions that (i) the appellant no.1 will submit self-attested
photocopy of his Aadhaar Card and also submit his mobile number before
the learned Court below which he will always keep active and will not
change it during pendency of this case without prior permission of the
Court.
So far prayer for suspension of sentence of the appellant no.2,
during pendency of this criminal appeal is concerned, it is hereby rejected.
Accordingly, IA No. 7833 of 2023 stands disposed of.
S.B. (Ratnaker Bhengra, J.)
