Jharkhand High Court
Fantar Kharwar @ Hantar Kharwar vs The State Of Jharkhand on 7 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1547 of 2024
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Fantar Kharwar @ Hantar Kharwar, Aged about 40 years, Son of
Jagdish Kharwar, Resident of Village-Mani Nagar, P.O. & P.S.-Dehri,
District-Rohtas (Bihar). .... .... Appellant
Versus
1. The State of Jharkhand
2. XYZ .... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Atanu Banerjee, Advocate
Mr. Aditya Banerjee, Advocate
Mr. Kunal, Advocate
Ms. Sugandha Khalkho, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
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03/Dated: 07.02.2025
I.A. No.13363 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 dated 18.07.2024 passed by the learned
Addl. Sessions Judge-II, Palamau, in connection with Session Trial
No.105C/2015, arising out of Chainpur P.S. Case No.102 of 2009,
corresponding to G.R. Case No.901 of 2009, whereby and
whereunder, the appellant has been convicted under sections 302,
149, 376(2) (g), 148 & 120 of Indian Penal Code and sentenced to
undergo Rigorous Imprisonment for life along with fine of Rs.
20,000/- for the offence punishable under Sections 302 & 149 of the
Indian Penal Code and in default of fine, he has been directed to
undergo further simple imprisonment of 1 year and further sentenced
to undergo Rigorous Imprisonment for life along with fine of Rs.
20,000/- under Section 376(2) (g) of the IPC and in default of fine, he
has further been directed to undergo simple imprisonment of 1 year
and further sentenced to undergo Rigorous Imprisonment for three
years along with fine of Rs. 5,000/- for the offence punishable under
sections 148 of the IPC. In default of payment of fine, the appellant
directed to undergo further simple imprisonment of four months and
further sentenced to undergo Rigorous Imprisonment for ten years
and fine of Rs. 10,000/- for the offence punishable under section
120B of the IPC and in case of default of fine, he has been directed
to undergo further simple imprisonment of six months.
2. It has been contended on behalf of the appellant that it is a
case where the appellant has been convicted without taking into
consideration the testimony of P.W.4 and P.W.5 but only relying upon
the testimony of P.W.1 who has taken the name of the present
appellant in alleged commission of crime.
3. It has also been contended by referring to the testimony of
P.W.4 and P.W.5, wherein, the name of the present appellant has not
been disclosed by them, although, these witnesses have been said
to be present at the place of occurrence.
4. It has further been contended that one co-convict, namely,
Awatar Kharwar has been directed to be released on bail after
suspension of sentence vide order dated 26.11.2024 passed in I.A.
No.8624/2024 [Cr. Appeal (DB) No.1168 of 2024] mainly on the
ground that the name of said Awatar Kharwar has not been taken by
P.W.6, the informant, who has been examined in the present case as
P.W.4.
5. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that it is, therefore, a fit case for suspension
of sentence.
6. While on the other hand, learned Spl. P.P. appearing for the
respondent-State has vehemently opposed the prayer for
suspension of sentence.
7. It has been contended by referring to the testimony of P.W.1,
who being the eye witness that she has taken the name of the
present appellant specifically so far as his presence at the place of
occurrence and commission of crime.
8. It has been contended, in response to the argument regarding
non-disclosure of the name of the appellant by P.W.4 and P.W.5, that
it is immaterial, even if, the name of the present appellant has not
been disclosed by P.W.4 and P.W.5, however, the name of the
appellant has been disclosed by P.W.1, which will be said to be
sufficient material for conviction and by taking into consideration the
aforesaid aspect of the matter, the judgment of conviction has been
passed, which cannot be said to suffer from an error and as such, it
is not a fit case for suspension of sentence.
9. We have heard the learned counsel for the parties and gone
through the finding recorded by the learned trial Court in the
impugned Judgment as also the testimony of the witnesses along
with other material exhibits as available in the Trial Court Records.
10. The ground of parity has been taken with one co-convict,
namely, Awatar Kharwar, who has been directed to be released on
bail by this Court, vide order dated 26.11.2024 passed in I.A.
No.8624/2024 [Cr. Appeal (DB) No.1168 of 2024], as appended to
the paper book.
11. This Court, in order to examine the culpability said to be
committed by the present appellant with co-convict, namely, Awatar
Kharwar, has gone through the testimony of P.W.4, the informant,
who has been examined as P.W.6 in the case of Awatar Kharwar.
12. It is evident from paragraph-12 of the order dated 26.11.2024,
wherein, the informant (P.W.6) has not disclosed the name of said
Awatar Kharwar. It is further evident from paragraph-12 thereof,
wherein, the reference of paragraph 4 and 5 of the testimony of the
informant has been made whereas also the name of said Awatar
Kharwar has not been disclosed. However, the name of other co-
accused persons has been disclosed by P.W.6.
13. We have considered the testimony of P.W.4 (informant), who is
P.W.6 in the case of said Awatar Kharwar. We have found that the
name of the present appellant has also not been disclosed by P.W.4.
The similar is the position with the testimony of P.W.5, who has also
not disclosed the name of the present appellant. However, P.W.1 has
disclosed the name of the present appellant.
14. The question, therefore, has been raised by the appellant with
respect to the contradiction in the testimony of P.W.1 on the one
hand and P.W.4 and P.W.5 on the other on the point of commission
of rape of the deceased.
15. This Court, therefore, is of the view that the contention/ground
which has been raised on behalf of the appellant is having
substance.
16. This Court, in view of the fact that the name of the appellant
has not been disclosed by the Informant, P.W.4 in the present case,
pertaining to sessions trial no.105(C) of 2015, while, the name of
said Awatar Khawar has not been disclosed by the informant who
has been examined in the case of Awatar Kharwar as P.W.6 and
further, P.W.5 has also not disclosed the name of the present
appellant, therefore, this Court is of the view that the appellant has
been able to make out case for suspension of sentence.
17. Accordingly, the instant interlocutory application being I.A.
No.13363 of 2024 stands allowed.
18. In consequence thereof, the appellant, above named, is
directed to be released on bail on furnishing bail bond of Rs.25,000/-
(Rupees Twenty Five Thousand) with two sureties of the like
amount each to the satisfaction of the learned Addl. Sessions Judge-
II, Palamau, in connection with Session Trial No.105C/2015, arising
out of Chainpur P.S. Case No.102 of 2009, corresponding to G.R.
Case No.901 of 2009.
19. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for its
consideration.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Rohit/-
