Jharkhand High Court
Aakash Kumar @ Aakash Bhardwaj vs The State Of Jharkhand on 20 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.557 of 2023
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Aakash Kumar @ Aakash Bhardwaj, aged about 28 years, s/o Jagdish
Bhardwaj, r/o village-Aasani Khurd, PO-Chatra, PS-Sadar, District-
Chatra ... ... 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. Nilesh Kumar, Advocate
For the Respondent : Mr. Pankaj Kumar Mishra, APP
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th
11/ Dated 20 January, 2025
Per, Sujit Narayan Prasad, J.
I.A. No. 6608 of 2024
1. The instant interlocutory application has been filed under Section 430 of
BNSS, 2023 for keeping the sentence in abeyance in connection with the
judgment of conviction dated 02.03.2023 and order of sentence dated
03.03.2023 passed by the learned Additional Sessions Judge-III, Chatra in
connection with Sessions Trial Case No.137 of 2021, whereby and
whereunder, the appellant has been convicted under section 302/201/34 of
the IPC and sentenced to undergo RI for life and a fine of Rs.10,000/- for
the offence under section 302 of the IPC and in default of payment of fine
further directed to undergo RI for six months. Further, the appellant has
been sentenced to RI for 3 years under section 201 of the IPC and all the
sentences will run concurrently.
Factual Matrix
2. The factual matrix of the case as per FIR is that the informant namely
Vinay Pandey on 10.02.2021 at about 01.00 PM, he received information
that his daughter Minakshi Devi, wife of Aakash Bhardwaj
(applicant/appellant herein) was murdered and her dead body is found in
Mesoghao forest. After getting the said information, he went to the place
of occurrence and he identified the dead body of his daughter. It has
further been alleged that a dowry case has already been going on against
his son-in-law. He stated that his son-in-law Aakash Bhardwaj called his
daughter to Hazaribagh before five days ago and after returning from
Hazaribagh on 09.02.2021 his son-in-law again called his daughter near
D.C. Office, Chatra and his daughter went to meet him from her house but
at the evening at about 06 to 07 PM, the informant tried to contact his
daughter but her mobile phone was found switch off. It has been alleged
that the in-laws of his daughter have murdered his daughter and the
accused persons tried to disappear the evidence. Thereafter, the instant
case was registered against six accused persons.
3. Accordingly, the police case has been registered bearing Gidhor P.S. Case
No. 07 of 2021 dated 10.02.2021 against the present applicant/appellant
and others on the basis of written-report of the informant.
4. In order to substantiate the prosecution case, prosecution has examined
altogether twelve witnesses in Session Trial and the learned trial court
after appreciation of evidence has found the charges levelled against the
present applicant along with other accused proved beyond reasonable
doubt and accordingly the present applicant has been convicted for the
offence under Sections 302/201/34 of the IPC and sentenced as aforesaid.
5. The instant interlocutory application has been preferred by the
applicant/appellant with the prayer for the suspension of sentence during
pendency of the instant appeal.
Submission of the learned counsel for the applicant/appellant
6. It has been contended on behalf of the applicant that the applicant has been
falsely implicated in the present case merely on the basis of suspicion as
he is the husband of the deceased and there was some altercation between
the applicant and the deceased.
7. It has been contended that initially the case has been registered against all
the in-laws members of the deceased on the general and omnibus
allegations and later on this applicant was taken into remand as per the
statement recorded by the prosecution witnesses and after that his
confessional statement was recorded on 06.03.2021 wherein he confessed
his guilt.
8. It has further been submitted that there is no eye witness to the occurrence
and, as such, the prosecution witnesses are not reliable as all are hearsay
witnesses.
9. It has been contended that though the broken mobile and the vehicle used
in the alleged crime were recovered during investigation but these are not
belonging to the present applicant. It has further been contended that no
incriminating article was recovered from the conscious possession of the
present applicant.
10. It has further been contended that there is no CDR on record which shows
that a conversation was made in between this applicant and the deceased
before or at the time of alleged occurrence which creates serious doubt.
11. Learned Counsel, based upon the aforesaid grounds has submitted that it
is a fit case for suspension of sentence during pendency of the instant
appeal.
Submission of the learned APP for the State
12. While, on the other hand, Mr. Pankaj Kumar Mishra, learned APP
appearing for the respondent-State of Jharkhand has vehemently opposed
the prayer for suspension of sentence.
13. It has been contended by the learned APP by referring to the statement of
Investigating Officer (PW12) who has deposed that on an information he
recovered a dead body of a lady from the Meshaundhi forest and thereafter
on identification of the informant that she was her daughter, on his
fardbeyan a case was registered against the in-laws of the deceased.
14. During investigation Investigating Officer arrested the applicant and co-
convict Lalit Kumar and on the identification of the present applicant he
recovered the knife, gloves and rope used in the alleged crime near the
place of occurrence and exhibited the same during course of trial. He also
recovered a broken mobile belonging to the deceased on the confession of
the applicant from a washing center at Ramgarh. The Investigating Officer
has recovered the vehicle used in the crime from the house of a near
relative of the applicant.
15. It has been contended that since the prosecution witnesses have fully
supported the case and the materials exhibits are corroborated the same,
as such, it is not a fit case where the applicant is to be released on bail by
suspending his sentence.
Analysis
16. We have heard the learned counsel for the parties and gone across the
findings recorded by the learned trial Court in the impugned judgment as
well as the testimony available in the lower Court records, as also the
materials exhibit as available therein.
17. Before adverting to the facts of instant case this Court would like to
referred the ratio as led by the Hon'ble Apex Court in the case of
Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123
wherein it has been held that in cases involving conviction under Section
302 of the IPC, it is only in exceptional cases that the benefit of suspension
of sentence can be granted, for ready reference the relevant paragraph of
the aforesaid Judgment is being quoted as under:
31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002)
9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan
Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9
SCC 366 : 2003 SCC (Cri) 1197] , it was held by this Court that in
cases involving conviction under Section 302IPC, it is only in
exceptional cases that the benefit of suspension of sentence can be
granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC
364 : 2003 SCC (Cri) 1195] , it was held that in considering the
prayer for bail in a case involving a serious offence like murder
punishable under Section 302IPC, the court should consider the
relevant factors like the nature of accusation made against the
accused, the manner in which the crime is alleged to have been
committed, the gravity of the offence, and the desirability of
releasing the accused on bail after they have been convicted for
committing the serious offence of murder.
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.
18. Thus it is evident from the perusal of the relevant paragraphs of the
aforesaid judgment is it is apparent that while considering the prayer for
bail in a case involving a serious offence like murder punishable under
Section 302 IPC, the court should consider the relevant factors like the
nature of accusation made against the accused, the manner in which the
crime is alleged to have been committed, the gravity of the offence, and
the desirability of releasing the accused on bail after they have been
convicted for committing the serious offence of murder.
19. Further, it needs to refer herein that the appreciation of the evidence in
entirety is not required at this stage, reason being that while exercising
power of suspension of sentence during pendency of appeal the Court has
to see only the prima-facie case.
20. The Hon'ble Apex Court in the case of Preet Pal Singh vs. State of U.P.,
(2020) 8 SCC 645 has observed that there is difference between grant of
bail in case of pre-trial arrest and suspension of sentence, post- conviction.
In the earlier case, there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the courts may be
liberal, depending on the facts and circumstances of the case, however, in
case of post-conviction bail, by suspension of operation of the sentence,
there is a finding of guilt and the question of presumption of innocence
does not arise. For ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
"35. There is a difference between grant of bail under Section
439 CrPC in case of pre-trial arrest and suspension of sentence
under Section 389 CrPC and grant of bail, post conviction. In the
earlier case, there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the courts may
be liberal, depending on the facts and circumstances of the case, on
the principle that bail is the rule and jail is an exception, as held by
this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State
of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in
case of post-conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of presumption
of innocence does not arise. Nor is the principle of bail being the
rule and jail an exception attracted, once there is conviction upon
trial. Rather, the court considering an application for suspension of
sentence and grant of bail, is to consider the prima facie merits of
the appeal, coupled with other factors. There should be strong
compelling reasons for grant of bail, notwithstanding an order of
conviction, by suspension of sentence, and this strong and
compelling reason must be recorded in the order granting bail, as
mandated in Section 389(1) CrPC."
21. Thus, it is evident from the aforesaid judgment, that during considering
suspension of sentence which is the post-conviction stage, the
presumption of innocence in favour of the accused cannot be available and
at this stage, the Court's only duty is to see that the prima-facie case is
made out or not.
22. In the backdrop of the aforesaid settled proposition of law this Court is
now adverting to the fact of the instant case in order to ascertain that
whether prima facie case for suspension of sentence is made out or not.
23. It is evident from the testimony of P.W.2 mother of the deceased wherein
she has testified that on the date of occurrence applicant/ appellant Aakash
Bhardwaj called deceased and ask her to come itkhori from where they
will go to Kolkata and he will pick her from the way and her daughter
(deceased) pick the Bus near the DC office and in the evening her mobile
phone became switched-off. In the next morning the dead body of her
daughter was found in the forest. She stated that in her presence phone
was come.
24. The aforesaid fact has been substantiated by the testimony of the I.O. who
had stated that he had recorded the confessional statements of the accused
Aakash Bhardwaj and accused Lalit Kumar and both the accused-persons
admitted this fact that on the date of occurrence accused Aakash Bhardwaj
has called his wife and ask her to come to Pitij from where they will go to
Kolkata.
25. This witness has further stated that in the confessional statement they had
admitted that they picked her(deceased) near forest guest house Pitij and
they were in Scorpio which was driven by the accused Lalit Kumar and
Aakash and his wife were in middle seat and after sometimes the Aakash
took mobile phone of his wife and switched off the same and suddenly he
strangulate her with the help of nylon rope and Navin Kumar Mishra has
closed her mouth and when she died they kept her to the Mesaundhi forest
and as Aakash has apprehension she may not be dead, hence he cut her
neck from the knife and thereafter thrown the dead body in the Mesaundhi
forest and then they went to Ranchi .
26. However, this Court is conscious with the fact that the confessional
statement before police is not strong evidence unless it disclosed some
recovery. Section - 27 of Evidence Act dealt with this situation and it
states that the confessional statement before the police is admissible with
respect to the recovery. In the instant case it is evident that on the basis of
confessional statement recovery of weapon used in the crime has been
recovered.
27. Further, P.W.1 has specifically stated that marriage of his daughter
(deceased) was solemnized with Aakash Bhardwaj (appellant) in the year
2018 and after her marriage she lived peacefully 3-4 months, thereafter
the dispute was started. The accused persons demanded money from his
daughter for buying vehicle but he was unable to give the money.
Thereafter, a panchayat was held in his village for the said dispute but
Punch stated to go to Mahila PS. Thus, from the testimony it is evident
that the matrimonial dispute was going on in between the deceased and
her husband.
28. Further it is settled position of law that where the evidence of the
investigating officer who recovered the material objects is convincing, the
evidence as to recovery need not be rejected on the ground that seizure
witnesses did not support the prosecution version. Reference in this regard
may be taken from the judgment rendered by the Hon'ble Apex Court in
the case of Modan Singh vs. State of Rajasthan, (1978) 4 SCC 435,
therefore the contention of appellant that seizure was perfunctory cannot
be accepted herein.
29. Further as we discussed in preceding paragraph that during considering
suspension of sentence which is the post-conviction stage, the
presumption of innocence in favour the accused cannot be available and
at this stage, the Court's only duty is to see that the prima-facie case is
made out or not as such the detailed appreciation of evidence is not
required at this stage.
30. Thus, on the basis of discussion made herein-above this Court, is of the
view that it is not a fit case for suspension of sentence.
31. This Court, after having discussed the factual and legal issues and as per
the discussion made hereinabove, is of the view that the present
interlocutory application is not fit to be allowed.
32. Accordingly, I.A. No. 6608 of 2024 stands dismissed.
33. It is made clear that any observation made herein-above will not prejudice
the case on merit, since, the criminal appeal is lying pending before this
Court for its consideration.
34. In view thereof, I.A. No. 6608 of 2024 stands disposed of with the
aforesaid observation.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Sudhir
