Jharkhand High Court
Kameshwar Mahto 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.573 of 2024
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Kameshwar Mahto .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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 State : Mrs. Kumari Rashmi, A.P.P.
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07/Dated: 28.10.2024
I.A. No.7162 of 2024
1. The instant interlocutory application has been filed under
Section 389(1) for suspension of sentence dated 23.06.2023 passed
by the learned Addl. Sessions Judge-I, Bermo at Tenughat, in
connection with Session Trial Case No.29 of 2021, arising out of
Penk Narayanpur P.S. Case No.57 of 2020, whereby and
whereunder, the appellant has been convicted for the offence under
Sections 302 and 201 of the IPC and sentenced to undergo R.I. for
life for the offence under Section 302 of the I.P.C. along with fine of
Rs.10,000/- and in case of default of payment of fine, he has further
been directed to undergo R.I. for six months. He has further been
sentenced to undergo R.I. for seven years for the offence under
Section 201 of the I.P.C. along with fine of Rs.5,000/- and in case of
default of payment of fine, has further been directed to undergo R.I.
for three months.
2. Learned counsel for the appellant has submitted that it is a
case where no evidence has come in order to attract the
attributability in commission of crime so far as the appellant is
concerned, who is the husband of the deceased.
3. It has been submitted that the dead body has not been found
within the four corner of the matrimonial house, rather, the dead body
was found in the pond, which has been seen by P.W.4.
4. Learned counsel appearing for the appellant, based upon the
aforesaid ground, has submitted that if the testimony of witnesses
and the circumstantial evidence will be taken into consideration,
then, it would be evident that the prosecution has miserably failed to
establish the charge.
5. While, on the other hand, Mrs. Kumari Rashmi, learned A.P.P.
appearing for the State has vehemently opposed the prayer for
suspension of sentence.
6. It has been contended that the conviction is based upon the
principle as laid down under Section 106 of the Evidence Act, reason
being that the death was caused due to asphyxia, as per the doctor's
(P.W.5) opinion.
7. What is being argued on behalf of the appellant that the dead
body has been found in the pond and the reason for cause of death
is drowning, is incorrect if the testimony of the doctor will be taken
into consideration.
8. Learned A.P.P., based upon the aforesaid grounds, has
submitted that it is not a fit case for suspension of sentence.
9. We have considered the rival submissions advanced on behalf
of the parties and gone through the finding recorded in the impugned
judgment as also the material available in the Lower Court Records
along with the testimony of the witnesses and exhibits as available
therein.
10. The learned trial Court has passed the judgment of conviction
while taking aid of Section 106 of the Evidence Act.
11. This Court, in order to examine the applicability of Section 106
of the Evidence Act, has considered the material available on record
in entirety and found therefrom that the death of deceased had
occurred while she was in the matrimonial house. Although, the dead
body was found in the pond but the doctor while giving opinion with
respect to the cause of death, has not opined that the death has
caused due to drowning, rather, the cause of death has been shown
due to asphyxia.
12. Therefore, this Court is of the view that since the death has
been caused as per the opinion of the doctor due to asphyxia,
strangulation and as such, onus upon the appellant to disprove the
charge, in view of the principle as laid down under Section 106 of the
Evidence Act but the same has not satisfactorily been explained by
the appellant.
13. Learned trial court, in view of the aforesaid circumstances if
applied the principle, as laid down under Section 106 of the Evidence
Act while convicting the appellant, hence, this Court by taking into
consideration the material available therein, has found that it is not a
fit case for suspension of sentence.
14. This Court, in view of the aforesaid fact, is of the view that it is
not a fit case where the sentence is to be suspended.
15. Accordingly, interlocutory application being I.A. No.7162 of
2024 stands dismissed.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Rohit/-
