Radhey Mahto @ Radhe Mahto vs The State Of Jharkhand
2024 Latest Caselaw 10099 Jhar

Jharkhand High Court

Radhey Mahto @ Radhe Mahto vs The State Of Jharkhand on 22 October, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                      Criminal Appeal (D.B.) No.1217 of 2024
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1. Radhey Mahto @ Radhe Mahto, age about 48 years, s/o late Chhatradhari Mahto

2. Malti Devi, age about 37 years, w/o Krishna Mehta

3. Basanti Devi, age about 40 years, w/o Radhe Mahto @ Radhey Mahto All are r/o village- Kadwa, PS-Barhi (Padma O.P), PO-Kewal, District-

     Hazaribag, Jharkhand                             ... ... 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. Santosh Kumar Soni, Advocate For the Respondent : Mrs. Shweta Singh, APP

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nd Order No.5/Dated: 22 October, 2024

1. The instant interlocutory application has been filed under Section 430(1) of B.N.S.S, 2023 for keeping the sentence of the applicants in abeyance in connection with the judgment of conviction dated 22.07.2024 and order of sentence dated 29.07.2024 passed by the learned Sessions Judge, Hazaribagh in connection with Sessions Trial No.506(A) of 2014 arising out of Barhi (P) PS Case No.10 of 2008 corresponding to G.R. No.330 of 2008, whereby and whereunder, the applicants have been convicted under Sections 302/34 and 328/34 of the IPC and sentenced to undergo imprisonment for life and a fine of Rs.2,000/- each for the said offence under Section 302/34 of the I.P.C. and in default of payment, further directed to undergo RI for one month. They are further sentenced to R.I for 10 years and a fine of Rs.500/- each for the offence under Section 328/34 of the I.P.C. and in default of payment, further directed to undergo SI for 15 days.

2. It has been contended on behalf of the applicants that it is the case where the prosecution has failed to establish its case beyond all reasonable doubt reason being that the F.I.R has been lodged after delay of 16 days as the occurrence took place on 12.01.2008 whereas the F.I.R was lodged on 28.01.2008. It has further been contended that this is a case which is solely based upon the alleged dying declaration of the deceased.

3. It has further been submitted that it is admitted case of the prosecution that the deceased was hospitalized on 12.01.2008 and on the same day she died, but F.I.R was instituted on 28.01.2008 even though the dying declaration is said to be of 12.1.2008.

4. Further, the said dying declaration cannot be said to be a corroborative piece of evidence unless the same has been corroborated by the testimony of other witnesses which is not available in view of the fact that there is no signature of any doctor on it nor any report of the doctor has been annexed with it showing the medical condition of the deceased.

5. Further ground has been taken on behalf of the applicants by making reference of testimony of PW4, an independent witness, who has deposed in the Court that when she came to the in-laws house of the deceased, she had been apprised by the deceased that she had consumed poison. The testimony of PW4 has not been denied rather she has also not been declared hostile by the prosecution.

6. It has further been submitted that the husband of the deceased had already died three months prior to the incident and due to the reason best known to her, the deceased consumed poison on her own, but the brother of the deceased has implicated the entire family members of the in-laws' house of the deceased due to ulterior motive.

7. It has further been submitted that the present applicants, i.e, the applicant no.1 is the elder brother-in-law (bhainsur) of the deceased whereas the applicant nos.2 and 3 are the sister-in-law (gotni) of the deceased.

8. The learned counsel for the applicants, based upon the aforesaid grounds, has submitted that it is a fit case where the present applicants be released from judicial custody by suspending their sentence.

9. While, on the other hand, Mrs. Shweta Singh, learned APP appearing for the respondent-State of Jharkhand has vehemently opposed the prayer for suspension of sentence stating that it is incorrect on the part of

the applicants to take a ground that the prosecution has not been able to substantiate the charges beyond all reasonable doubt. Such submission has been made based upon the ground that it is a case where the prosecution has been able to prove the case on the basis of the dying declaration of the deceased. The learned trial Court after taking into consideration of the aforesaid fact since has passed the judgment of conviction of the applicants and, as such, it is not a case where the sentence may be suspended.

10. We have heard the learned counsel for the parties and gone across the findings recorded by the learned trial Court as also the testimony of the witnesses as available in the lower Court records which also contains the exhibits including the dying declaration of the deceased.

11. This Court has found that as per the prosecution version the consumption of poison is said to be of 12.01.2008, on the very same day, the deceased was taken to the hospital for her treatment.

12. It is the case of the prosecution that on 12.01.2008 the deceased had given dying declaration and died on the same day. But the F.I.R was instituted on 28.01.2008.

13. It needs to be referred herein that even though when the Investigating Officer, during trial who examined as PW6, has admitted that he recorded the dying declaration of the deceased on 12.01.2008, but there is no explanation of the fact that why the F.I.R was lodged after a delay of 16 days.

14. We have also examined the testimony of PW 4, who is said to be an independent witness. PW 4 has deposed in the court that she was apprised by the deceased that she had consumed poison and this witness remained intact during her cross-examination. The prosecution has not declared the said witness to be hostile.

15. This Court also found that PW 8, namely, Vinay Kumar Mehta, who said to exhibit the dying declaration and put his signature on it, has disputed the fact that he was present in the room at the time of recording of dying declaration.

16. Hence, this Court is of the view that the applicants have been able to make out a prima-facie case for suspension of their sentence.

17. Accordingly, I.A. No. 9901 of 2024 stands allowed.

18. In consequence thereof, the applicants, named above, are directed to be released on bail, during pendency of the appeal, on furnishing bail bond of Rs.25,000/- (Rupees Twenty-Five Thousand) each with two sureties of the like amount each to the satisfaction of learned Sessions Judge, Hazaribagh in connection with Sessions Trial No.506(A) of 2014 arising out of Barhi (P) PS Case No.10 of 2008 corresponding to G.R. No.330 of 2008.

19. 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.

20. In view thereof, I.A. No. 9901 of 2024 stands disposed of with the aforesaid observation and direction.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Sudhir