Jharkhand High Court
Sandeep Pal vs The State Of Jharkhand on 28 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 1116 of 2024
Sandeep Pal, aged about 30 years, S/o-Late Jaishri Pal,
R/o-Belwani, P.O. & P.S.-Balua, District-Candauli, Utter
Pradesh .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellants : Ms. Varsha Ramsisaria, Advocate
For the State : Mr. Shailesh Kumar Sinha, A.P.P.
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Order No.06/dated 28.10.2024
Per Sujit Narayan Prasad J:
I.A. No. 9613 of 2024
The instant Interlocutory Application has been filed
under Section 430 of the Bhartiya Nagarik Suraksha Sanhita,
2023 for suspension of sentence in connection with the
Judgment of Conviction dated 03.02.2024 and Order of
Sentence dated 07.02.2024 passed by the learned Addl.
Sessions Judge-II, Sahibganj in S.T.No. 14 of 2022, arising out
of Mirzachouki P.S. Case No. 15 of 2021 whereby and
whereunder the appellant has been convicted under Sections
302/34, 364/34, 201/34 of the Indian Penal Code and has
been directed to undergo R.I. for life under Section 302/34 of
the Indian Penal Code with fine of Rs. 50,000/- and in default
of payment of fine, he shall further undergo S.I. for one year,
R.I. for 10 years with fine of Rs. 20,000/- under Section
364/34 of the Indian Penal Code and in default of payment of
fine, S.I. for six months, R.I. for 07 years with fine of
Rs.10,000/- under Section 201/34 of I.P.C. and in default of
payment of fine, S.I. for six months.
2. It has been contended on behalf of the learned Counsel
for the appellant that in the case where the appellant has
falsely been implicated, since, there is no evidence said to be
available to alleged the complicity of the appellant in
commission of said crime.
3. The submission has been made that the entire Judgment
of Conviction is based upon circumstantial evidence leading to
recovery and by applying the provision as contained under
Section 27 of the Indian Evidence Act. But no criminality has
been surfaced save and except the confession made by the
co-convict namely Kulesh Rajjak on whose confession the
dead-body has been recovered. The said Kulesh Rajjak while
recording his confession has also disclosed the name of the
appellant.
4. The contention has been raised that even accepting the
said evidence available on record but as per the settled
position of law, the confession made by the co-accused
persons cannot be applied to the other co-accused person.
5. The learned Counsel has further submitted that the other
co-convicts, namely, Deepika Devi @ Deepika Mishra, Sonu
Kumar Yadav and Etwari Mandal have been allowed to be
released from judicial custody after suspension of sentence
save and except the prayer so made by Kulesh Rajjak, the
appellant of Cr. Appeal (D.B.) No. 458 of 2024.
6. The learned Counsel appearing for the appellant based
upon the aforesaid ground has submitted that it is fit case
where the sentence may be suspended.
7. While on the other hand Mr. Shailesh Kumar Sinha,
learned Addl. Public Prosecutor appearing for the State has
vehemently opposed the prayer for bail.
8. It has been contended that it is not correct that only on
the basis of the confession made by the Kulesh Rajjak the
appellant has been convicted, rather, the consideration has
also been given by the learned Trial Court on the basis of the
CDR which has been marked as Ext. P-26/P.W.13.
9. However, in response to the same, the learned Counsel
appearing for the appellant has submitted by referring to the
said Exhibit that the original certificate has not been brought
on record and as such there is no compliance of the provision
of Section 65-B of the Evidence Act.
10. This Court has heard the learned Counsel for the parties
and gone across the findings recorded by the learned trial
court in the impugned Judgment as also the testimony
available in the Lower Court Record along with the Exhibits
available therein.
11. As it appears from going through the impugned
Judgment is based upon the theory of the circumstantial
evidence by applying the provision as contained under Section
27 of the Evidence Act.
12. The reason for the same is that on the basis of the
confessional statement recorded of one co-convict, namely,
Kulesh Rajjak the dead-body of the deceased has been
recovered and further on the basis of the confession made by
Aditya Yadav, the pistol has been recovered. The incriminating
material which has been taken into consideration by the
learned court-below in the impugned Judgment is that the
co-convict namely Kulesh Rajjak, in his confessional
statement, has also disclosed the name of the appellant in
commission of the criminality.
13. But this Court is of the view that the law is well settled in
this regard that the confession of the co-accused person
cannot be utilised against the other co-accused persons. The
another ground has been taken by the learned State Counsel
that the basis of conviction is also the CDR which has been
Exhibited as P-26/PW 13 which is the evidence of ongoing talk
with Aditya Yadav and the present appellant.
14. But this Court after going through the said evidence
which has been marked as Ext. P-26/PW13 has found that the
original certificate has not been placed on record and as such
the said document, in view of the provision of Section 65-B of
the Evidence Act. cannot be said to be utilized.
15. Further, it is evident that the other co-convicts have been
directed to be released on bail after suspension of sentence
vide order dated 29.07.2024 in Cr. Appeal (D.B.) No. 234 of
2024; Cr. Appeal (D.B.) No. 270 of 2024 & Cr. Appeal (D.B.)
No. 501 of 2024 save and except Kulesh Rajjak whose prayer
for suspension of sentence has been rejected.
16. Considering the aforesaid fact, this Court prima facie is
of the view that it is a fit case where the sentence is to be kept
in abeyance during pendency of Appeal.
17. Accordingly, I.A. No. 9613 of 2024 is allowed.
18. In consequence thereof, the appellant is directed to be
released on bail, during the pendency of the Cr. Appeal, on
furnishing bail bond of Rs.10,000/- (Ten thousand) with two
sureties of the like amount each to the satisfaction of the
learned Addl. Sessions Judge-II, Sahibganj in connection with
Sessions Trial No. 14 of 2022, arising out of Mirzachouki P.S.
Case No. 15 of 2021.
19. In view thereof, I.A. No. 9613 of 2024 stands disposed of.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
P.K.S.
