Jharkhand High Court
Lodhiya Tudu vs The State Of Jharkhand on 29 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1234 of 2024
With
I.A. No. 11586 of 2024
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1. Lodhiya Tudu, aged about 28 years;
2. Ram Chandra Tudu, aged about 37 years;
Both sons of late Nemai Tudu, residents of Village Asna, P.O. &
P.S. Ghatshila, District-East Singhbhum.
... ... Appellants
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 Appellants : Mr. Ajit Kumar, Advocate
For the Resp.-State : Mrs. Vandana Bharti, APP
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th
05/Dated: 29 October, 2024
I.A. No. 11586 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 in connection with the judgment of
conviction dated 23.11.2022 and sentence dated 29.11.2022 passed
in Sessions Trial No.133 of 2020 arising out of Ghatshila P.S. Case
No. 16 of 2020 by learned Additional Sessions Judge-I, Ghatshila,
whereby and whereunder, the appellants have been convicted under
Sections 302 and 34 of IPC and have been sentenced to undergo
imprisonment for life along with fine of Rs.10,000/- and in default
of payment of fine, have been further directed to undergo simple
imprisonment for six months.
2. It has been contended on behalf of the learned counsel for the
appellants that it is a case where the prosecution has miserably
failed to establish the charge. Submission has also been made that
although the judgment of conviction is based upon the testimony of
eye witnesses, i.e., P.W. Nos.-1 to 6 but as per the appellants, they
cannot be considered to be the eye witnesses if the testimonies of
these witnesses will be taken into consideration in entirety.
3. Learned counsel for the appellants has submitted by referring to the
testimony of the doctor that even there is no sign of injury said to
be given by axe (kulhadi) as has been alleged against the appellant
no.2.
4. Learned counsel for the appellants, based upon the aforesaid
submission, has submitted that it is a fit case for suspension of
sentence.
5. While on the other hand, Mrs. Vandana Bharti, learned Additional
Public Prosecutor appearing for the respondent-State has
vehemently opposed the prayer for suspension of sentence.
6. It has been contended by referring to the testimony of the P.W.
Nos. 1 to 6 that they cannot be disclaimed to be eye witnesses
rather if their testimonies will be taken into consideration, they are
the eye witnesses and rightly the learned trial court has considered
them to be the eye witnesses and thereafter, the judgment of
conviction has been passed.
7. It has also been contended that it is evident from the FSL report that
the blood stain available in the axe has been found to be the blood
of the deceased which has been established on the basis of the
deposition of the witnesses that the dead body of the deceased has
been recovered from the house of the appellants.
8. Learned Additional Public Prosecutor, based upon the aforesaid
ground, has submitted that it is not a case where the present
interlocutory application is to be allowed.
9. This Court has heard the learned counsel for the parties and has
gone across the finding recorded by the learned trial court in the
impugned order as also the testimony available in the lower court
record and the exhibits available therein.
10. This Court in order to appreciate the argument advanced on behalf
of the learned counsel for the parties has gone through the
testimonies of P.W. Nos. 1 to 6 who have been denied to be the eye
witnesses as per the argument advanced on behalf of the learned
counsel for the appellants but this Court after going through the
testimony of these witnesses is of the view that they are the eye
witnesses since follow up action has been seen by them as it has
occurred in their presence. Version of the aforesaid witnesses which
has been taken on record in the examination-in-chief has also been
corroborated in the cross-examination.
11. The report of the doctor, who has been examined as P.W.-10, is
also in corroboration with the testimony of these witnesses. Further,
the dead body has been recovered from the house of the appellants
who happens to be brothers.
The blood sample available on axe (kulhari) and farsa as
also from the earth have been found to be from one and the same
human male source of origin, which has been marked as Exhibit-17.
12. This Court, considering the aforesaid fact, is of the view that the
appellant has not been able to make out a prima facie case for
suspension of sentence.
13. Accordingly, I.A. (Cr.) No. 11586 of 2024 stands dismissed.
14. 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.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
