Jharkhand High Court
Randhir Choudhary 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 (DB) No. 1226 of 2024
With
I.A. No. 11517 of 2024
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Randhir Choudhary, aged about 29 years, Son of Krishn Choudhary,
resident of Ramdhanmai Tola, Naini Gaon, P.O. & P.S Bansi,
District Arval, Bihar ... ... 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
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For the Appellant : Mr. Awnish Shankar, Advocate
For the Respondent : Mr. Manoj Kumar Mishra, A.P.P.
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th
04/Dated: 28 October, 2024
I.A. No. 11517 of 2024:
1. The instant interlocutory application has been filed on behalf of
appellant under section 430(1) of Bhartiya Nagarik Suraksha Sanhita,
2023 praying therein for suspension of sentence during the pendency
of this appeal in connection with the judgment of conviction dated
25.06.2024 and the order of sentence dated 29.06.2024 passed in S.T.
Case No.109 of 2021 by the learned District & Additional Sessions
Judge-IV, East Singhbhum at Jamshedpur, whereby and whereunder,
the appellant has been convicted under Section 396, 364/34 and
307/34 of the Indian Penal Code and Section 27 of Arms Act and
sentenced him to undergo rigorous imprisonment for life along with
fine of Rs.10,000/- and in default of payment of fine, he was directed
to further undergo RI for three months for the offence under Section
396 of the Indian Penal Code, further sentenced to undergo rigorous
imprisonment for ten years along with fine of Rs.5000/- and in default
of payment of fine, he was further directed to undergo RI for two
months for the offence under Section 364/34 of the Indian Penal Code,
further sentence to undergo RI for ten years along with fine of
Rs.5000/- and in default of payment of fine, he was directed to
undergo RI for two months for the offence under Section 307/34 of
the Indian Penal Code and further sentence to undergo RI for four
years along with fine of Rs.2000/- and in default of payment of fine,
he was further directed to undergo RI for one month for the offence
under Section 27 of the Arms Act.
2. Learned counsel for the appellant has contended that although it is
a case where the prosecution has miserably failed to establish the
charge beyond all reasonable doubt since no cogent evidence has
been adduced on behalf of the prosecution since P.W.-2 who is
police officer has not fully supported the prosecution version.
The submission has also been made it is not a case of either
said to attract the offence under Section 396 of the Indian Penal
Code or any other penal provision under which the conviction has
been made as would appear from the testimony of P.W.-2 and the
prosecution version.
Further submission has been made that DNA profile of the
present petitioner has not matched, however, the DNA profile of
Jaysan Kumar and Rahul Kumar Yadav @ Anuj has been found to
be matched with the hair collected from the cabin of the said truck.
Therefore, the argument has been made that even from the
aforesaid mismatching of the DNA profile, the presence of the
appellant at the place of occurrence is also in doubtful.
3. Learned counsel appearing on behalf of the appellant, based upon
the aforesaid grounds, has submitted that it is a case where the
sentence is to be suspended.
4. While on the other hand, learned Additional Public Prosecutor
appearing on behalf of the State has vehemently opposed the prayer
for bail.
5. It has been contended by referring the evidence of P.W.-3, who is
the eyewitness as also the injured has fully supported the
prosecution version.
6. The submission has been made in response to the argument
advanced on behalf of the learned counsel for the appellant on
mismatching of the DNA profile that since it is a case based upon
the testimony of the P.W.-3, who is the eyewitness as also the
injured witness, as such, the same will prevail.
7. Learned Additional Public Prosecutor appearing for the State,
based upon the aforesaid ground, has submitted that it is not a fit
case for suspension of sentence.
8. We have heard the learned counsel for the parties and gone through
the findings recorded by the learned Trial Court in the impugned
judgment.
9. This Court, while appreciating the rival submissions made on
behalf of the parties, has considered the testimony of P.W.-2 and
P.W.-3. It is evident from the testimony of the P.W.-2, who is the
police official that nothing has been said with respect to the issue
of prosecution version rather the P.W.-3, (informant), who is the
injured witness as has been considered to be the material witness
by the learned trial court while passing the judgment of conviction
has been perused by this Court wherefrom it is evident that he has
fully supported the prosecution version by stating regarding the
specific complicity of the present appellant who has attacked along
with other accused person, namely, Rahul Kumar Yadav @ Anuj,
Jaysan Kumar and Dinesh Kumar @ Sudhir had fled away by
driving the said truck bearing registration No.UP-71-AT-0523.
10. In course of such hijacking of the said truck, the brother of the P.W.-
3 has been assaulted by the pistol, by one Rahul Kumar Yadav @
Anuj due to which he succumbed to injury. It has also come in the
testimony of P.W.-3 that all the accused persons including the
present appellant had assaulted the person along with the deceased
brother.
11. So far as the argument advanced on behalf of the appellant
regarding matching of the DNA profile, this Court is of the view
that since the conviction is based upon the testimony of injured
eyewitness (P.W.-3) and as such we are not, at the moment, deems
it fit to consider so as to prevail upon the evidence as has been
recorded of the P.W.-3.
12. This Court, considering the same, is of the view that the appellant
has not been able to make out a prima facie case for suspension of
sentence.
13. Accordingly, the present interlocutory application stands dismissed.
14. It is made clear that any observation made hereinabove will not
prejudice the case of the appellant on merit since the criminal
appeal is lying pending for its consideration before this Court.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Madhav/ Rashmi/-
