Jharkhand High Court
Nesar Khan @ Tepa vs The State Of Jharkhand on 16 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 392 of 2024
With
I.A. No. 7047 of 2024
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Nesar Khan @ Tepa, aged about 22 years, son of Mustakim
Khan, Resident of Village-Makandu, P.O. Baridih, P.S. Kuru,
District-Lohardaga.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Rupesh Singh, Advocate
For the Respondent : Mr. Tarun Kumar, A.P.P.
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th
09/Dated: 16 January, 2025
I.A. No. 7047 of 2024:
1. The instant interlocutory application has been filed on behalf
of appellant, for suspension of sentence in connection with
judgement of conviction dated 18.01.2024 and order of
sentence dated 20.01.2024 passed by the learned District and
Sessions Judge-III, Lohardaga in S.T. Case No.42 of 2022
arising out of Kairo P.S. Case No. 45 of 2021, whereby and
whereunder, the appellant has been convicted and sentenced to
undergo rigorous imprisonment for life under Section 302 and
149 of IPC alongwith fine of Rs.30,000/- and in default of
payment of find, has been further directed to undergo simple
imprisonment for two years; and the appellant has also been
directed to undergo rigorous imprisonment for 10 years under
Section 307 and 149 of IPC along with fine of Rs.20,000/- and
in default of payment of fine, he has further been directed to
undergo simple imprisonment for one year.
2. Learned counsel for the appellant, at the outset, has started his
argument by taking the ground of parity since the co-convicts,
namely, Sarfoj Pawariya and Tabrej Pawariya have been
directed to be released on bail after suspension of sentence by
the co-ordinate Bench of this Court vide order dated
10.06.2024 passed in Criminal Appeal (DB) No.180 of 2024
with Criminal Appeal (DB) No.188 of 2024.
3. While on the other hand, Mr. Tarun Kumar, learned
Additional Public Prosecutor appearing for the respondent-
State has vehemently opposed the prayer for suspension of
sentence by making reference of paragraph-5 of the order
passed by the co-ordinate Bench wherein the co-ordinate
Bench has come to the conclusion while considering the
prayer for suspension of sentence of the co-convicts that the
specific attributability has been shown again the present
appellant by the P.W.-8 in his testimony.
4. Learned Additional Public Prosecutor has also submitted by
referring to the testimony of P.W.-8 where the involvement of
the present appellant in the commission of crime has fully
been supported the prosecution version and even, the appellant
has been identified in the TIP.
5. Learned Additional Public Prosecutor, based upon the
aforesaid ground, has submitted that it is not a fit case for
suspension of sentence after going through the testimony of
P.W.-8, as such, the order passed by the co-ordinate Bench of
this Court dated 10.06.2024 is not applicable herein for
consideration of prayer for suspension of sentence of the
present appellant.
6. We have heard the learned counsel for the parties, gone across
the finding recorded by the learned trial court in the impugned
judgment as also the testimony of the witnesses as available in
the lower court record.
7. This Court in order to appreciate the argument advanced on
behalf of the appellant that the co-convicts have been directed
to be released on bail after suspension of sentence has gone
through the order passed by the co-ordinate Bench dated
10.06.2024 since the original records of the said criminal
appeal has come for the aforesaid purpose.
8. The co-ordinate Bench while considering the prayer for
suspension of sentence of the co-convicts, namely, Safroj
Pawariya and Tabrej Pawariya has taken note in paragraph-5
by making reference of the testimony of P.W.-8 wherein
specific attributability has been shown against the present
appellant so far as the commission of crime is concerned.
9. This Court in order to consider the aforesaid aspect of the
matter has gone through the testimony of P.W.-8 wherefrom it
is evident that the P.W.-8 has supported the prosecution
version fully and P.W.-8 not only supported the prosecution
version rather he has also identified the present appellant in
TIP as would be evident from paragraph-11 of the
examination-in-chief.
10. It needs to refer herein that in the testimony of P.W.-8 the
word "पक्षद्रोही (hostile)" has been referred.
11. Emphasis has been given by the learned counsel for the
appellant that since the P.W.-8 has been declared to be hostile,
as such, whatever testimony has been given by him that cannot
be said to be reliable.
12. We are not in agreement with such submission of the learned
counsel for the appellant reason being that although " पक्षद्रोही
(hostile)" has been referred but after going through
paragraphs1 - 13 of the examination-in-chief, it is evident that
the P.W.-8 has fully supported the prosecution version as also
the culpability committed by the appellant.
13. The aforesaid aspect of the matter has been taken into
consideration by the co-ordinate Bench of this Court in the
order dated 10.06.2024 passed in Criminal Appeal (DB)
No.180 of 2024 with Criminal Appeal (DB) No.188 of 2024,
particularly if the paragraph-5 will be taken into consideration.
14. This Court, considering the aforesaid fact, is of the view that
the case of the appellant is not at par with the culpability said
to be committed by the co-convicts, namely, Safroj Pawariya
and Tabrej Pawariya rather the specific attributability has been
casted upon the present appellant which has fully been
supported by the P.W.-8, as such, we are of the view that it is
not a fit case for suspension of sentence.
15. Accordingly, the instant interlocutory application being I.A.
No. 7047 of 2024 stands dismissed.
16. 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.)
(Sanjay Prasad, J.)
Saurabh/-
