Jharkhand High Court
Manoj Bhuiyan vs The State Of Jharkhand on 21 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1646 of 2023
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Manoj Bhuiyan, aged about 23 years, Son of Ramu Bhuiyan,
Resident of Village Gundri, Bhiyan Toli, P.O. & P.S.-Anandpur,
District-West Singhbhum (Jharkhand).
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mrs. Shruti Shrestha, Advocate
For the State : Mr. Bhola Nath Ojha, APP
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10/Dated: 21.10.2024
I.A. No.8570 of 2024
1. The instant interlocutory application has been filed under
Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for
suspension of sentence dated 19.05.2023, in connection with S.T.
No.153 of 2021(CNR No.JHCB01-001490-2021), arising out of
Anandpur P.S. Case No.25/2020, whereby and whereunder, the
appellant has been convicted for the offence under Section 302 of
the IPC and sentenced to undergo imprisonment for life along with
fine of Rs.10,000/- and in default of payment of fine, he has further
been sentenced to undergo simple imprisonment of one year for the
offence under Section 302 of the IPC.
2. It has been contended on behalf of the appellant that it is a
case where there is no evidence said to be available so far as the
culpability said to be committed by the appellant.
3. According to the learned counsel for the appellant, all the
witnesses have been turned hostile and as such, on the basis of so
called confessional statement of the appellant leading to recovery as
per the prosecution version, the appellant was convicted.
4. It has further been contended that the blood stain has been
found in the Dauli, which was sent to the FSL along with blood stain
of the deceased which has been found to be matched and that is the
only basis of conviction, wherein, the recovery said to be made on
the confession so made by the appellant, cannot be said to be
reliable, since, in the seizure memo, no signature of the appellant
has been obtained.
5. Even the witness, particularly P.W.1 happens to be seizure
witness, who has put his signature in the seizure memo but in his
cross-examination, he has denied that any incriminating material
said to be Dauli, used in the commission of crime, has been
recovered in his presence, rather, this seizure witness has stated
that the signature was obtained in the plain paper.
6. Learned counsel for the appellant has submitted that since, the
seizure itself is in doubt and as such, the conviction which is based
upon the applicability of Section 27 of the Evidence Act, will not be
applicable herein.
7. The reference of statement recorded under Section 313 Cr.P.C.
has also been made, wherein, the appellant has denied to have
confessed the guilt said to be committed by him.
8. Learned counsel, on the basis of the aforesaid ground, has
submitted that it is a fit case where the sentence is fit to be
suspended.
9. Mr. Bhola Nath Ojha, learned APP appearing for the State has
vehemently opposed the ground so agitated by the learned counsel
for the appellant.
10. It has been contended by making reference of Section 27 of
the Evidence Act which is the very basis of the conviction of the
appellant that it is not a fit case where the sentence is fit to be
suspended.
11. We have heard the learned counsel for the parties and gone
across the finding recorded by the learned court in the impugned
judgment as also the testimony of the witnesses along with other
exhibits, as available in the Lower Court Records, as has been called
for by this Court vide order dated 31.07.2024
12. The Judgment of conviction is based upon the applicability of
Section 27 of the Evidence Act. The basis to apply the provision of
Section 27 of the Evidence Act is the confession, which has been
marked as Exhibit P-5.
13. This Court, has considered the said confessional statement
leading to recovery of the Dauli, the article used in the commission of
crime of murder.
14. It is evident that the seizure said to have been prepared in the
presence of the independent witnesses.
15. P.W.1 has turned hostile. Further, P.W.1 has deposed in his
cross-examination that no Dauli was recovered in his presence. He
has corroborated his signature which has been marked as Exhibit
1/1 but he has deposed that the said signature was taken in the plain
paper.
16. We have also considered the DNA profile, wherefrom, it is
evident that the sample of blood available in the Dauli and the blood
sample of the deceased have been collected and sent for DNA which
has been matched. The said DNA profile is the basis of conviction.
17. But, this Court has not convinced prima facie that merely
because the sample of the blood stain available in the Dauli and the
blood sample of the deceased even if matched, then, how the
culpability of the appellant is to be established, there is no evidence
said to be available.
18. Further, the seizure has also been made to be doubtful due to
denial of the same by the seizure witness, who has been examined
as P.W.1. Even, the signature of the accused has not been obtained
in course of investigation which has been admitted by the
Investigating Officer. Further, the appellant has denied confessing his
guilt in his statement recorded under Section 313 Cr.P.C.
19. This Court, in view of the aforesaid, is of the view that the
appellant has been able to make out a prima-facie case for
suspension of sentence during pendency of this appeal.
20. Accordingly, the instant interlocutory application being I.A.
No.8570 of 2024 stands allowed.
21. In consequence thereof, the appellant, above named, 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,
Chaibasa in connection with S.T. No.153 of 2021, arising out of
Anandpur P.S. Case No.25/2020.
22. 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.)
(Navneet Kumar, J.)
Rohit/-
