Jharkhand High Court
Gunja Sinha vs The State Of Jharkhand on 15 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 2091 of 2023
With
I.A. No. 11080 of 2024
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Gunja Sinha, aged about 40 years, w/o Late Arvind Kumar
resident of Village-Mauza B-4/22 Sundar Bihar, Tiril Bhathi
Road, Kokar P.O. Kokar, P.S. Sadar District Ranchi, Jharkhand.
... ... Appellant
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 Appellant : Mr. Shadab Eqbal, Advocate
For the Respondent : Mr. Sanjay Kr. Srivastava, A.P.P.
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th
04/Dated: 15 October, 2024
I.A. No. 11080 of 2024:
Prayer
1. The instant interlocutory application has been filed under Section
430(1) of the Bharatiya Nagrik Suraksha Sanhita, 2023 for
keeping the sentence in abeyance in connection with the
judgment of conviction dated 27.09.2023 and order of sentence
dated 29.09.2023 passed by the learned Additional Sessions
Judge-III, Latehar in connection with Sessions Trial No. 188 of
2018 arising out of Chandwa P.S. Case No. 62 of 2018
corresponding to G.R. No. 326 of 2018, whereby and
whereunder, the appellant has been convicted and sentenced
maximum to undergo rigorous imprisonment for life along with
fine of Rs.10,000/- for the offence 302/34 u/s 302/34 of IPC.
Prosecution Story
2. The case of the prosecution, as stated in brief, is that on
30.04.2018 at around 00:30 hours at night, the informant Santosh
Kumar Suman, S.1 of Chandwa P.S was informed by the night
patrolling party police officer Dinesh Prasad Singh on phone that
a WagonR car bearing registration no. JHOI-B-0978 has been
found on the Chandwa-Kuru Road and that all the doors of the
car were locked and a dead body was seen lying near the rear seat
behind the seat of the driver.
The informant proceeded to the place of occurrence and in
the torch light it was seen that a dead body was in a decomposed
state lying near the right door behind the driver's seat. In the
morning a large number of local people assembled in whose
presence the doors of the car were opened and the dead body
which could not be identified by anyone present. Several
passbooks, ATM Cards, Cheque books, PAN and Aadhaar Card
were found and seized from the rear seat of the car. Later, the
dead body was identified by Gunja Sinha, (appellant) as that of
her husband, Arvind Kumar.
3. It is also the case of the prosecution that Arvind Kumar, the
deceased and husband of the accused person Gunja Sinha was
posted at Singrauli and used to frequently travel between Ranchi
and Singrauli on his car with hired drivers. During his frequent
absence, the accused person Gunja Sinha had developed illicit
and intimate relationship with the co-accused person namely
Pawan Raja @ Abhay Kumar @ Harihar Nath Goswami. They
both hatched a plan to take the life of Arvind Kumar so that they
could marry and live together thereafter.
Subsequently, Pawan Raja along with the other co-accused
persons who were his friends and acquaintances came to Ranchi
and stayed at a hotel from 27.04.2018 Then, the accused Gunja
Sinha informed Pawan Raja that her husband will leave for
Singrauli on 28.04.2018 and was looking for a driver. Under a
conspiracy hatched by all the accused persons, the accused
Pawan Raja introduced the accused person Sajjan Kumar to
Arvind Kumar as a driver who would take him to Singrauli for a
remuneration of Rs. 2000/-only. As per his schedule, Arvind
Kumar proceeded from Ranchi to Singrauli on 28.04.2018 at
with the accused Sajjan Kumar Sanjan Kumar driving his car.
In the mean time, the accused persons Pawan Raja and Rahul
Kumar @ Avinash were chasing and travelling behind the above
WagonR car of Arvind Kumar on a motorcycle. The accused
person Gunja Sinha was frequently talking to her husband,
Arvind Kumar, and she as well as Sajjan Kumar who was driving
the car were providing the location of the car to the accused
Pawan Raja. Thereafter, as per the conspiracy, the accused
person Sajjan Kumar, the driver of the car stopped the car on the
Chandwa-Kuru road at a deserted place near Amjhariya Ghati
enabling the accused person Pawan Raja A to get down from the
motorcycle and sit in the WagonR car of Arvind Kumar.
The accused person Pawan Raja then as per the plan and
conspiracy of the accused persons brutally assaulted and caused
murder of Arvind Kumar. After that the accused persons Pawan
Raja Sajjan Kumar and Rahul Kumar placed the dead body near
the rear seat of the car, locked the doors of the car and threw
away the keys of the car near a tree. The keys were later
recovered and seized by the police on 14.07.2018 at the instance
of the accused person Sajjan Kumar @ Sanjan Kumar.
The Call Detail Reports of the mobile phones used by the
accused persons show that they were constantly in touch at the
time of occurrence. It is the further case of prosecution that all
the accused persons of the case under a conspiracy were
complicit in causing murder of Arvind Kumar. They also tried to
conceal the offences committed by them by hiding the dead body
and throwing away the keys of the car in order to destroy the
evidence.
4. Accordingly, the charges were framed under section 120B/34,
302/34 and 201/34 of the Indian Penal Code. The learned trial
court found the present appellant guilty for the aforesaid offences
and accordingly convicted.
5. Thereafter the present appellant has preferred the instant appeal
wherein an interlocutory application being I.A. No. 11080 of
2024 for suspension of sentence has been filed during pendency
of the instant appeal, which has been taken on board today by
this Court.
Submission of the learned counsel for the appellant:
6. Mr. Shadab Eqbal, learned counsel for the appellant has
submitted that the impugned judgment of conviction and order of
sentence is unjust, improper and unreasonable on the ground that
the P.W.-10, who is the doctor has stated that the postmortem
report has been signed by the then medical officer and he is not
the doctor who has performed the autopsy nor he was present at
the time of postmortem.
7. It has been submitted that the tower location of the mobile
number of the present appellant was in Ranchi while the location
of the mobile of the deceased was running with the Abhay
Kumar, co-accused.
8. It has further been submitted that P.W. 4 who is the police
witness from technical cell on presumption has opined that
Abhay Singh was using appellant's Mobile No. 8434825125
without any certificate regarding this Mobile number belongs to
appellant and on cryptic CDR has opined that the number was
used by Abhay Singh and the tower location was at Chandwa.
Further the P.W-4 at Para 8 has deposed that he has no degree of
I.T. thus this witness from technical cell has no credential to be
examined and prove the CDR.
9. It has been submitted that the P.W.-9, at paragraph-2, has stated
that without FSL report and without completing the investigation
on the direction of S.P., Latehar, chargesheet was submitted.
10. Learned counsel for the appellant, on the aforesaid premise, has
submitted that the present interlocutory application deserves to
be allowed so that the appellant be released on bail by keeping
the sentence in abeyance.
Submission of the learned counsel for the State:
11. While, on the other hand, learned Additional Public Prosecutor
appearing for the respondent-State of Jharkhand has submitted
that the witnesses examined have related the factum of
occurrence and have fully supported the case of the prosecution.
12. It has also been stated that the CDR of the mobile phones clearly
established that the accused person had conspired the alleged
offence and was in contact with other co-accused. The present
appellant has admitted the complicity in her confessional
statement.
13. The learned counsel for the State, in view of the aforesaid
premise, has submitted that it is not a fit case where the sentence
is to be suspended due to the reason that after conviction the
presumption of innocence will be said to be not available and in
that view of the matter since the judgment of conviction is there
wherein after taking into consideration the testimonies of the
witnesses, the appellant has been convicted, therefore, it is
incorrect on the part of the appellant to take the ground that the
prosecution has not been able to substantiate this argument
beyond all shadow of doubt.
14. Learned Additional Public Prosecutor appearing for the
respondent-State of Jharkhand, based upon the aforesaid premise,
has submitted that the present interlocutory application is fit to be
rejected.
Analysis:
15. We have heard learned counsel for the parties and gone across
the finding recorded by the learned trial court in the impugned
judgment as also the testimonies of the witnesses as available in
the Lower Court Records.
16. According to the learned arguing counsel for the appellant, the
learned trial court has not appreciated the evidence of witnesses
properly and, as such, it is a fit case where the sentence is to be
suspended.
17. Per contra the learned counsel for the State, has submitted that
after conviction the presumption of innocence will be said to be
not available and in that view of the matter since the judgment of
conviction is there wherein after taking into consideration the
testimonies of the witnesses, the appellant has been convicted,
therefore, it is incorrect on the part of the appellant to take the
ground that it is a fit case where the sentence is to be suspended.
18. In the aforesaid context, there is no dispute for the settled
proposition of the law that after the conviction the presumption
of innocence will not be there but, the said principle is to be
tested based upon the testimony of the witnesses.
19. Further the law is well settled regarding the order to be passed by
the appellate Court in exercise of power conferred under section
389(1) of the Code of Criminal Procedure wherein if prima facie
case is made out on the basis of the material available on record
as also there are chances of acquittal in the criminal appeal then
the aforesaid power is to be exercised for suspension of sentence
but at the same time it is equally settled that the appellate court
should not reappreciate the evidence at the stage of Section 389
CrPC and try to pick up a few lacunae or loopholes here or there
in the case of the prosecution. Such would not be a correct
approach. Reference in this regard be made to the judgment
rendered in the case of "Omprakash Sahni v. Jai Shankar
Chaudhary" reported in (2023) 6 SCC 123 wherein at paragraph
no.33 it has been observed which reads as under:
"33. Bearing in mind the aforesaid principles of law, the
endeavour on the part of the court, therefore, should be to see as
to whether the case presented by the prosecution and accepted
by the trial court can be said to be a case in which, ultimately
the convict stands for fair chances of acquittal. If the answer to
the abovesaid question is to be in the affirmative, as a necessary
corollary, we shall have to say that, if ultimately the convict
appears to be entitled to have an acquittal at the hands of this
Court, he should not be kept behind the bars for a pretty long
time till the conclusion of the appeal, which usually takes very
long for decision and disposal. However, while undertaking the
exercise to ascertain whether the convict has fair chances of
acquittal, what is to be looked into is something palpable. To put
it in other words, something which is very apparent or gross on
the face of the record, on the basis of which, the court can arrive
at a prima facie satisfaction that the conviction may not be
sustainable. The appellate court should not reappreciate the
evidence at the stage of Section 389 CrPC and try to pick up a
few lacunae or loopholes here or there in the case of the
prosecution. Such would not be a correct approach."
20. Now, this Court, in order to appreciate the arguments proceeds
through the testimonies of the witnesses as available in the
Lower Court Records.
21. It is evident from the testimony of PW.1 informant that
the mobile phone of the deceased was not used after14:17:44 on
28.04.2018. He has given this statement on the basis of the CDR
which was obtained from the concerned company.
22. Further from the testimony of P.W.4 namely Pankaj Kumar
Shukla who is the police witness of technical cell it is evident
that he had received the written application of the informant of
this case for providing the CDR of some phone numbers given
by him. And on this request, he had through E-mail asked the
nodal service provider of BSNL, AIRTEL and GIO to provide
the CDR of these phones which was duly provided by them and
the same was forwarded to the police station for investigation in
both soft and hard copies with certificate of 65-B of The Indian
Evidence Act, 1872.
23. It is further evident that this witness had proved the certificate u/s
65-B of The Indian Evidence Act, 1872 as Ex1/4. He also proved
the CDR and CAF of the mobile phones which were printed after
downloading the same from the E-mail account of
Superintendent of police as provided by the service providers and
the same were marked with objection as Ext. 5 to 5/5.
24. It appears from the record that the mobile number 8434825125
was in the name of the appellant but was being used by co-
accused Abhay Kumar on the day of occurrence since the mobile
location of this phone kept on changing and appellant and Abhay
Kumar had talked between 2-3 pm on 28.04.2018 when the tower
location of the phone of Abhay Kumar was at Chandwa.
25. Further the learned trial court at paragraph 31 of impugned order
has categorically mentioned that on analysis of the CDR of the
mobile phone of Gunja Sinha (appellant) it is quite clear that she
was constantly in touch with the co- accused person Pawan Raja
@ Abhay Kumar @ Harihar Nath Goswami on, before and after
the date of occurrence. She was also providing the details of the
location of Arvind Kumar to the accused persons.
26. This Court, after taking into consideration the aforesaid facts, is
of prima facie view that it is not a case where the sentence is to
be suspended.
27. Accordingly, the prayer for bail of the appellant during pendency
of the instant appeal is hereby rejected.
28. The instant interlocutory application being I.A. No. 11080 of
2024 is dismissed.
29. However, it is made clear that any observation made herein will
not prejudice the case on merit as the appeal is lying pending for
its consideration.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
